Flower Goss: Dahlia Royalties

What's going on with Breeder's Rights in the US?

Feb 04, 2025

If you have inhabited US based dahlia spaces over the past 12 months you might have seen some tension around paying royalties to breeders. Several breeders have attempted to introduce their own schemes to receive royalty payments and received varying levels of backlash in response.

So what is going on, why all the angst, and what can we learn from it?

It is a complicated, and multi-faceted issue, but I’m going to do my best to break it down for you over the next few articles.

Before we can dive into dahlias specifically, and what’s been happening, we need to look at Plant Breeder’s Rights and patents, what they mean, and why they aren’t a perfect fit for dahlias.

Reminder: while I have a legal background, I am not a practicing lawyer, and I am especially not your lawyer. This article is designed to inform and entertain but is not, and should not be relied upon to be, legal advice. Do your own research and talk to actual experts as needed.

Plant Breeder’s Rights

Also referred to as PBR, Plant Breeder’s Rights are designed to protect the commercial rights of new plant varieties. PBR is an internationally recognised system with some variations from country to country.

The rights holder has exclusive rights to propagate, stock, and sell the plant material for commercial purposes, or to licence others to do the same. These are cascading rights that attach not only to the plant, but to harvested material and products derived from the plant (eg. the fruit tree, the fruit, and the subsequent fruit juice are covered under PBR).

The protection lasts for 20 years for most plant species (and 25 for vines and trees).

According to IP Australia it typically takes 2.5 years to register a plant, and costs, on average, $2,900 plus external fees (eg. lawyers fees).

To be eligible a plant must fulfill the criteria of novelty, distinctness, uniformity, and stability.

The plant must also have not been “exploited” (sold) or only been recently introduced. Australia allows for 12 months on the market, with international registrants having a leeway of four years.

Note: while a plant must be reliably reproducible to be protected, this does not strictly mean from the beginning of the breeding process (this would be near impossible due to dahlia genetics). Simply: the plant must be able to be directly propagated. If sexually reproduced it should be stable from seed (that is, the seed looks like the parent). If clonally reproduced (cutting, tuber, etc), it should look like the parent plant.

Why does it exist?

Originally, plants were not able to be patented as they were viewed as a product of nature. This changed in the 1930s in the US when it was recognised that plant breeders create products that are not solely the product of nature (that is, that they may not exist without human intervention), and also extended rights to ‘discoverers’ of new varieties.

It can take significant time and resources to breed a new plant variety or cultivar - and some of them can be big business. As a lot of plants can be propagated by an individual or a business to become many more plants, without a strict need to purchase more than one, PBR ensures that breeders are fairly compensated for their work.

Consider:

Apples with better crunch and storage, juicier oranges, and more productive wheat, can all be assets to large agricultural businesses where it isn’t just the selling of the plant or seed, but the end product that can hold significant value; or
David Austin Roses are propagated by licensed sellers who pay a royalty so that we might all enjoy them in our garden, and David Austin can continue to create new roses.

In simple terms: PBR exists to ensure that if someone is making money from your plant invention or discovery, that you also get to see a cut of that money. The reason is to encourage innovation in plant types and breeding.

What are the Exceptions?

Research and breeding exemption: anyone may use protected varieties in their own breeding program to produce new varieties. Note: the new variety must not be ‘essentially derived’ from the protected variety or PBR from the original variety may follow the new cultivar and so permission may need to be obtained. That is: your new cultivar may need to be distinct from the protected parent or this exception may not apply.
Farmers’ privilege: a farmer can save and plant seed from protected varieties on their own land without permission from the rights holders provided the seed was originally purchased and any royalty paid. Farmers may not exchange seed of protected varieties.

What does “Commercial” Mean

PBR only covers commercial use. That is, private and non-commercial use are not protected: ie. home gardeners may propagate whatever plants they wish.

For micro-flower farms the area can be murky when one is only a ‘hobby’.

Is a hobby farm ‘commercial’ for the purposes of PBR?

In Australia, this is simplified under the Plant Breeders Rights Act 1994. Section 11 sets out what you cannot do with protected plant material. This includes that you must not offer for sale, or sell, plant material. Pretty clear.

Let’s take a closer look at the exception for private use. The exception that allows for private use is contained in section 16.

Specifically, this sections refers to “private and non-commercial purposes”.

All flower farmers should be aware that, due to the cascading rights, ‘propagation for commercial purpose’ does not solely mean propagating with an intent to sell the plant, but with an intent to sell the produce from the plant: ie. flowers.

Think about the example of apples or oranges above. If PBR only strictly applied to selling the plants themselves, then large commercial orchards could propagate plants and reap the rewards of the fruit without paying royalties to the rights holder for the plants that are now making the money.

There are few cases under PBR to assist us to know what a “commercial” and “non-commercial” purpose may be, however ‘significant commercial purpose’ has been discussed in the context of “primary production” (where to be engaged in primary production has certain tax advantages and so may be invoked by hobby farmers and commercial farmers alike).

“Discussed by Walsh J in Thomas v. FC of T 72 ATC 4094; (1972) 3 ATR 165, (refer to paragraph 81) and discussed further by Gibbs CJ and Stephen J in Hope. The 'significant commercial purpose or character' indicator is closely linked to the other indicators and is a generalisation drawn from the interaction of the other indicators. It is particularly linked to the size and scale of activity (refer to paragraphs 77 to 85), the repetition and regularity of activity (refer to paragraphs 55 to 62) and the profit indicators (refer to paragraphs 47 to 54). A way of establishing that there is a significant commercial purpose or character is to compare the activities with those of a taxpayer who is carrying on a similar activity that is a business.”1

Here the use of ‘significant’ could indicate that it is a higher threshold than ‘commercial’ alone, however it is clear that there are many factors that are considered rather than simply whether the endeavour is buying and selling, or whether profitability is a key indicator as used by many common dictionary definitions.

All of this is a long roundabout way of saying that although you may think of selling flowers as a side hustle or hobby, it may be considered ‘commercial’ for the purposes of the Act. It may be particularly difficult to show that the use of the plant material was ‘private’ when money has exchanged hands, especially as the Act specifically prohibits the “sale” of plant material regardless of profitability.

In simple terms: think twice before propagating PBR material for your flower farm, even if you consider it to be a hobby, and even if you are only selling the flowers and not the plants.

What is the difference between PBR and a Patent?

A patent also offers protection for novel plants, but its application is narrower and protections broader. For example: you can register a newly discovered plant under PBR, but you cannot patent it as you have not invented it. A patent also protects other aspects of the plant including its genetics, and restricts the use of the plant in other breeding programs.

You will often see these two types of protection used interchangeably in discourse around this area. While technically different, and with slightly different parameters, for the purposes of this discussion they largely serve the same role or place in the legal framework.

Wait - How Does this Apply to Dahlias?

It is clear that there is already an international scheme in place that can protect plant breeder’s rights - it is right there in the name. So why, then, is there so many dramatics around ensuring dahlia breeders are paid fairly?

First, the process for getting PBR attached to a plant is expensive and long. The application fees are separate to any legal fees and it takes years for an application to be assessed and granted.

Second, PBR must be enforced to be worth anything at all. This puts the onus upon the breeder to track down all of those who improperly propagate and sell the plant. While it might be a worthwhile endeavour for and against large industry leaders, the average dahlia breeder is a small business or backyard enthusiast, as are many of those selling dahlia tubers. There may not be enough monetary reward to make the hassle worthwhile - neither for the breeder to want to protect their cultivar, nor to be bothered suing those infringing upon their rights. Compare: a new David Austin rose release, or a superior new orange tree - both potentially part of far larger industries than dahlias.

The other part is cultural. Dahlias have a long history of being plants that are shared and sold freely without royalties being paid. In recent history it is dahlia societies, exhibition growers and home gardeners that have kept the legacy of dahlias alive. It is only in recent years that dahlias have seen a resurgence and high levels of popularity and so the hybridising and tuber selling industry has grown. What this means is that there are several different factions: those who believe breeders deserve to be paid royalties, and those who don’t believe royalties should be paid on dahlias because it has never been done. Further, there are those who question why some breeders should be paid royalties when their new cultivars rely on the legacy of breeders who were not paid - how far do you go to ensure fairness?

The final part is money. Plant breeding can take considerable time and effort. As dahlias multiply quickly this means that breeders, without PBR, may only have a limited window (1-2 seasons) to make back money on their investment before other growers - and especially large commercial nurseries - can flood the market with those same cultivars, reducing possibility for profit and recoupment of costs by the Breeder. At the same time, those new growers are able to sell the product without the research and development debt, so can potentially make more money from the cultivar than the original breeder.

It is clear that this is a multi-faceted, and complex issue.

Next time we will look at some case studies from the US and how some Breeders are trying to protect their varieties without going down the PBR/Patent route.