IP, Tech and Supply Trends in

Agriculture
Webinar 1 – Intellectual Property Tools for Agriculture
Presenters
Helen Macpherson
Partner
+61 2 8922 5194
helen.macpherson@bakermckenzie.com
Languages
English

Practice focus
Helen has 20 years' experience as an intellectual property litigation and dispute resolution specialist, advising on all types of
intellectual property including patents, trademarks, plant variety rights, copyright, moral rights and confidential information.
Helen's past and present clients operate in a range of industries including the pharmaceutical, life sciences, medical device,
manufacturing, agricultural, consumer goods, media and advertising industries. Helen has had a strong focus in her career
working with clients on high-value patent disputes involving complex technologies. In these disputes, Helen has been able
to draw upon her technical training in biochemistry and her ability to up-skill swiftly in relation to diverse technologies.
Presenters
Gillian Woon
Special Counsel
+61 2 8922 5486
gillian.woon@bakermckenzie.com
Languages
English

Practice focus
Gillian specialises in advising clients on brand strategy, trade mark clearances, registration and oppositions. She manages
global trade mark portfolios on behalf of her clients. These include those in the agricultural sector and key global clients of
the firm including a global FMCG corporation which owns one of the largest brands portfolios in the world, a multinational
that owns a number of well-known quick service restaurant brands, and corporations which have portfolios of prestige and
well-known cosmetics and beauty care brands.
Gillian is recognised by Best Lawyers Australia for Intellectual Property. She is also the Vice President of the Trans-Tasman
National committee of the Intellectual Property Society of Australia and New Zealand (IPSANZ).
Presenters
Alanna Rennie
Associate
+61 2 8922 5727
alanna.rennie@bakermckenzie.com
Languages
English, Chinese

Practice focus
Alanna Rennie is an Associate in Baker McKenzie's Sydney office where she focuses on agri-related M&A, corporate
advisory, and intellectual property.
Alanna has played a central role in initiating the firm's global Plant Variety Practice and has guided companies on plant
variety registration, commercialisation and enforcement strategies in China and Australia. Alanna is admitted in Australia
and holds a bachelor of laws (honours) from Bond University and Masters in Chinese Law from Tsinghua University.
Alanna is CIOPORA's representative on the Australian Plant Breeder's Rights Consultation Group.
Today's contents
1 Why is IP important

2 Agricultural innovations and trends

3 Available intellectual property tools to capture innovation

4 Q&A
1
Why is IP important?
Why IP is important

Captures the  Recoup R&D spend Business tool for

value of your  Monetise: exclusivity competitive advantage
innovations or licensing
 Enforce rights
Converting risks into opportunities

Innovation is often a response to challenges or risks faced by business, a

means of converting risk into opportunities
2
Agri innovation
and trends
Agri trends, risks and opportunities

Climate Sustainability Choice and Labour

change quality shortages

High input Supply Corporates

Data, and
costs chains digitisation
……
Agri innovation

Breeding, Aerial
gene editing, Software Precision
imaging Technology
GMOs

Techniques
EnviroTech Branding Mechanisation
and practices
IP trends in Agriculture
Rapid advancements of agri related innovation

More registered intellectual property

Use of intellectual property to increase enterprise value

Bigger players

Opportunities around data aggregation, use and ownership

Infringement, freedom to operate, inadvertent transfer, and ACCC

attention
3
Capturing innovation
through IP
 Copyright

Geographical
indications Trade marks

Passing off Patents

Intellectual
Property

Circuit
layouts Designs

Plant
Confidential
breeders'
Information
rights
Patents and confidential
information
Patents and confidential information
Implements
ACTUATION
AI
DECISION
Software

Sensor(s) DATA
PLATFORM
CROP
Confidential information vs Patents
Confidential Information Patents

no prosecution costs; but costs of

implementing reasonable
Cost of prosecution prosecution is often very costly
protective measures may be
comparable

excludes laws of nature, physical

no limitations on subject matter Subject matter
phenomena, abstract ideas and data

indefinite, as long as secrecy is

Duration 20 years
maintained

must take reasonable measure to most patent offices require periodic

Maintenance
preserve secrecy maintenance fees
Confidential information vs Patents
Confidential Information Patents

No requirement for a human

Human requirement Human inventor required
creator

transactions can be complicated

because subject matter must be Monetization transactions relatively straightforward
defined

enforcement options limited Enforcement enforcement robust, straightforward

no disclosure required Disclosure competitor may leverage disclosure

Plant Breeder’s Rights vs Patents
Plant Breeder’s Rights Patents

relatively low Cost of application/prosecution prosecution is often very costly

no inventive step Innovation inventive step

Prior sales / disclosure

prior disclosure and sales possible no
permitted

the individual variety Subject matter the inventive product or process

farmers and breeders exemption Exceptions narrow and limited

20-25 years from date of grant Duration 20 years from the filing date
Plant breeder's rights
Plant breeder's rights

Sui generis IP right protecting plant varieties

Protects individual variety

Morphological (phenotypic) assessment

Breeders’ and farmers’ exemptions

Plant Breeder’s Rights vs Patents
Plant Breeder’s Rights Patents

relatively low Cost of application/prosecution prosecution is often very costly

no inventive step Innovation inventive step

Prior sales / disclosure

prior disclosure and sales possible no
permitted

the individual variety Subject matter the inventive product or process

farmers and breeders exemption Exceptions narrow and limited

20-25 years from date of grant Duration 20 years from the filing date
Our global plant breeder's rights guide
Global

Baker McKenzie's Global

Plant Variety Rights
Guide provides an easy way
to get to know and compare
different PVR systems
around the world. It is the first
of its kind, prepared by
specialist lawyers from many
of our offices around the
globe.
Brand protection
Brand protection
What is a trade mark?
 A sign used to distinguish one trader’s goods or services from those of another
– acting as a “badge of origin”
 Can cover letters, words, logos, packaging, labels, shapes, colours, sounds or
scents

What rights do you get?

 A trade mark registration can be relied upon to stop other’s use or registration
of a substantially identical or deceptively similar trade mark in relation to similar
or closely related goods or services
 These monopoly rights can be perpetual vs limited monopoly provided by other
registered IPRs (patents, PBRs, designs)
*provided the mark is not challenged on the basis of non-use
Brand protection
Examples of trade marks

ROCKIT

SUNGOLD
Brand protection
What is not a registrable trade mark?
 Words that describe a product or service – do not distinguish the products or
services of a specific trader and should be available for other traders in the
same field to use
 Geographical names – generally considered to have little distinctiveness for
registration, if any.
 Plant variety denomination – rarely registrable on its own
 PINK LADY vs Cripps Pink, Rosy Glow and Lady in Red
 Might be objected to as likely to deceive or cause confusion if goods
claimed are not specifically restricted to relate to particular variety

 Generic terms – not capable of indicating origin; should be free for use by other
traders
*Important to differentiate trade mark and not let it become a generic term!
Trade Marks vs Patents & PBRs
Trade Marks Patents & PBRs

Relatively low Cost of prosecution More costly

Brands under which product is sold Subject matter The actual innovation

10 years – renewable indefinitely Duration 20 years / 20-25 years

Relatively straightforward; can be

relied upon to stop infringement at Enforcement Robust, straightforward but more costly
customs.
Brand protection

Potential pitfalls & how to avoid them

 Consult trade mark lawyers early in the piece
 Clearance searches – to determine risk to use and registration
*There may be non-identical but similar marks (registration or unregistered) in
relation to different goods or services that would be obstacles
 Trade mark sufficiently distinctive for registration?
 File as soon as possible – especially important in first-to-file jurisdictions like
China
 Countries of interest – current and future – which registration systems to use?
Product claims – Australian Consumer Law
Environmental claims & “greenwashing”
 Avoid vague terms like “safe” and “friendly” and unqualified pictures – use clear
language that is accurate and specific as to the environmental benefit
 Ensure that claims can be substantiated – eg. scientific authority or testing

Health claims eg. “anti-virus”

 Companies or persons making claims that products have health properties
without any scientific or technological basis can found to be making false and
misleading representations or engaging in conduct liable to mislead the public

ACCC priorities & penalties

 ACCC’s 2022/23 compliance & enforcement priorities – environmental claims
and sustainability and COVID-19 consumer and fair trading issues.
 Penalties – up to $10 million for companies & $500K for individuals
Designs
Visual appearance of products
 Registered design can protect visual features of a product, aspects of
packaging including its shape as well as features of pattern and ornamentation
of the packaging and labels
 Can extend to innovative designs of tools, instruments, packaging, building
exteriors and interiors

Requirements – certification for enforcement

 Novelty – Design must be new and not part of prior art
 Distinctiveness – Design must not be substantially similar to an earlier design

Defensive registration
 To block competitors from obtaining legal protection worldwide
Takeaways
Key takeaways

IP captures innovation value

Put in place procedures and protocols to identify IP

Know your IP rights

Develop a protection strategy – don’t jeopardise your rights

Q&A
Next week: part 2
Freedom to operate

IP licensing issues

Competition issues

Data accessibility, use and ownership

Supply chain trends and disruptions

Managing risk and liability surrounding new tech

 PRIVATE AND CONFIDENTIAL

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