equitable remuneration, in relation to an act done in relation to propagating material of a plant variety, means an amount:

(a)

that is agreed between the person proposing to undertake the act and the grantee of PBR in the plant variety; or

(b)

if agreement cannot be reached under paragraph (a)—determined by a court of competent jurisdiction to constitute equitable remuneration in relation to the act.

(1)

Subject to subsection (11), the grantee of PBR in a plant variety must take all reasonable steps to ensure reasonable public access to that plant variety.

(2)

Reasonable public access to a plant variety covered by PBR is taken to be satisfied if propagating material of reasonable quality is available to the public at reasonable prices, or as gifts to the public, in sufficient quantities to meet demand.

(3)

For the purpose of ensuring reasonable public access to a plant variety covered by PBR, the Secretary may, on behalf of the grantee, in accordance with subsections (4) to (10), license a person whom the Secretary considers appropriate:

(a)

to sell propagating material of plants of that variety; or

(b)

to produce propagating material of plants of that variety for sale;

during such period as the Secretary considers appropriate and on such terms and conditions (including the provision of reasonable remuneration to the grantee) as the Secretary considers would be granted by the grantee in the normal course of business.

(4)

If, at any time more than 2 years after the grant of PBR in a plant variety, a person considers:

(a)

that the grantee is failing to comply with subsection (1) in relation to the variety; and

(b)

that the failure affects the person's interests;

the person may make a written request to the Secretary to exercise a power under subsection (3) in relation to the variety.

(5)

A request must:

(a)

set out the reasons why the person considers that the grantee is failing to comply with subsection (1); and

(b)

give particulars of the way in which the person considers that the failure affects the person's interests; and

(c)

give an address of the person for the purposes of notifications under this section.

(6)

The Secretary must give the grantee:

(a)

a copy of the request; and

(b)

a written invitation to give the Secretary, within 30 days after giving the request, a written statement of the reasons the Secretary should be satisfied that the grantee:

(i)

is complying with subsection (1) in relation to the variety; or

(ii)

will so comply within a reasonable time.

(7)

The Secretary must, after considering the request and any statement given by the grantee in response to the invitation under paragraph (6)(b):

(a)

decide whether or not to exercise the power concerned; and

(b)

within 30 days after so deciding, give written notice of the decision to the grantee and to the person making the request.

Note: A decision under this subsection is reviewable by the AAT under section 77.

(8)

If the Secretary proposes to exercise a power under subsection (3) in relation to a plant variety, the Secretary must give public notice:

(a)

identifying the variety; and

(b)

setting out particulars of any licence the Secretary proposes to grant; and

(c)

inviting persons to apply in writing to the Secretary, within 30 days of the publication of the notice, to be granted that licence.

(9)

The Secretary must not grant any such licence unless:

(a)

the Secretary has considered all applications made in response to the invitation; and

(b)

at least one month before granting any such licence, the Secretary has:

(i)

given written notice to each such applicant of the name of the proposed licensee; and

(ii)

given public notice of the name of the proposed licensee.

(10)

If the Secretary:

(a)

has granted a person a licence to produce propagating material of plants of a particular variety; and

(b)

is satisfied that the person will be unable to obtain such propagating material at a reasonable price or without charge;

the Secretary may, on behalf of the grantee, make that propagating material available to the person from material stored at a genetic resource centre.

Note: A decision under this subsection to make propagating material available is reviewable by the AAT under section 77.

(11)

This section does not apply in relation to a plant variety in respect of which the Secretary certifies, in writing, at the time of the grant of PBR, that he or she is satisfied that plants of that variety have no direct use as a consumer product.

Note: A decision under this subsection is reviewable by the AAT under section 77.

(1)

PBR is personal property and, subject to any conditions imposed under section 49, is capable of assignment, or of transmission by will or by operation of law.

(2)

An assignment of PBR (otherwise than because of the order of a court) does not have effect unless it is in writing signed by, or on behalf of, the assignor and assignee.

(3)

If a grantee of PBR in a plant variety gives another person a licence in that right, the licence binds every successor in title to the interest of that grantee to the same extent as it was binding on that grantee of the PBR.

(1)

If a person (the claimant) claims that PBR was assigned or transmitted to the claimant, the claimant must inform the Registrar in writing that the claimant has acquired that right, giving particulars of the manner in which that right was acquired, within 30 days after acquiring that right.

(2)

If the Registrar is satisfied that the right has been so assigned or transmitted, the Registrar must amend the Register by entering the name of the claimant as the holder of that right.

(3)

If the Registrar enters the name of the claimant on the Register as the holder of PBR, the Registrar must, within 30 days after entering the name, give written notice to the claimant and to the person who was the holder before the entry was made, stating that the entry has been made.

(4)

If the Registrar is not satisfied that PBR has been assigned or transmitted to the claimant, the Registrar must, as soon as possible:

(a)

give written notice to the claimant:

(i)

telling the claimant that the Registrar is not so satisfied; and

(ii)

setting out the reasons why the Registrar is not so satisfied; and

(b)

give written notice to the person entered on the Register as the holder of the right:

(i)

setting out particulars of the information given by the claimant; and

(ii)

telling the claimant that the Registrar is not so satisfied; and

(iii)

setting out the reasons why the Registrar is not so satisfied.

(5)

A claimant must include, in the notice to the Registrar informing of the assignment or transmission, an address in Australia for the service of documents in accordance with this Act.

Note: A decision under this section to amend or to refuse to amend the Register is reviewable by the AAT under section 77.

(1)

Subject to subsections (4) and (5), PBR in a plant variety begins on the day that the grant of PBR in the variety is made.

(2)

Subject to subsections (3), (4) and (5), PBR in a plant variety lasts for:

(a)

in the case of trees and vines—25 years; and

(b)

for any other variety—20 years.

(3)

The regulations may provide that PBR in a plant variety included within a specified taxon lasts for a longer period than is specified in subsection (2).

(4)

PBR in a plant variety that is a dependent plant variety of another plant variety begins on:

(a)

the day that the grant of PBR in the other plant variety is made; or

(b)

the day that dependent variety comes into existence;

whichever occurs last, and ends when PBR in the other variety ceases.

(5)

If:

(a)

PBR is held in a plant variety (the initial variety); and

(b)

another plant variety is declared under section 40 to be an essentially derived variety of the initial variety;

PBR in the initial variety extends to the essentially derived variety from the day on which that declaration is made until the day on which PBR in the initial variety ends.

(1)

PBR granted in a plant variety does not extend to any act referred to in section 11:

(a)

in relation to propagating material of the variety; or

(b)

in relation to propagating material of any essentially derived variety or dependent plant variety;

that takes place after the propagating material has been sold by the grantee or with the grantee's consent unless that act:

(c)

involves further production or reproduction of the material; or

(d)

involves the export of the material:

(i)

to a country that does not provide PBR in relation to the variety; and

(ii)

for a purpose other than final consumption.

(2)

If:

(a)

a plant variety is declared to be an essentially derived variety of another plant variety (the initial variety); and

(b)

PBR in the essentially derived variety is held both by the grantee of PBR in the essentially derived variety and by the grantee of PBR in the initial variety;

the reference in subsection (1) to propagating material sold by the grantee or with the grantee's consent is a reference to propagating material sold by, or with the consent of, both of the grantees referred to in paragraph (b).

(3)

If, under subsection 18(1), equitable remuneration is paid, or arranged to be paid, to the grantee of PBR in a plant variety in respect of an act (the first act) in relation to propagating material of that variety before the person does the act, PBR in that variety does not extend to any later act (the later act) referred to in section 11 in relation to that propagating material unless the later act:

(a)

involves the further production or reproduction of that propagating material; or

(b)

involves the export of the material:

(i)

to a country that does not provide PBR in relation to the variety; and

(ii)

for a purpose other than final consumption.

(4)

To avoid doubt, nothing in subsection (1) or (3) prevents the exercise of the rights of the grantee of PBR in a plant variety in relation to any propagating material of that variety that is obtained by reproduction of the propagating material to which that subsection applies.

(1)

A breeder of a plant variety may make application to the Secretary for the grant of a PBR in the variety.

(2)

The breeder can make the application whether or not:

(a)

the breeder is an Australian citizen; and

(b)

the breeder is resident in Australia; and

(c)

the variety was bred in Australia.

(3)

Subject to subsection (4), if 2 or more persons bred a plant variety jointly, those persons or some of them may make a joint application for that right.

(4)

If 2 or more persons bred a plant variety jointly, one of those persons is not entitled to apply for PBR in the variety otherwise than jointly with, or with the consent in writing of, each other of those persons.

(1)

The right of a breeder of a plant variety to apply for PBR is personal property and is capable of assignment and of transmission by will or by operation of law.

(2)

An assignment of a right to apply for PBR must be in writing signed by or on behalf of the assignor.

(1)

An application for PBR in a plant variety must:

(a)

be in writing; and

(b)

be in an approved form; and

(c)

be lodged in a manner set out in the approved form.

(2)

The application must contain:

(a)

the name and address of the applicant; and

(b)

if the applicant is using an agent to make the application on the applicant's behalf—the name and address of the agent; and

(c)

if the applicant is the breeder of the variety—a statement of that effect; and

(d)

if the applicant is not the breeder of the variety—the name and address of the breeder and particulars of the assignment, or transmission by will or by operation of law, of the right to make the application; and

(e)

a brief description, or a brief description and photograph, of a plant of the variety sufficient to establish a prima facie case that the variety is distinct from other varieties of common knowledge; and

(f)

the name of the variety, having regard to the requirements of section 27, and any proposed synonym for that name; and

(g)

the name of the location at which the variety was bred; and

(ga)

the name of each variety (the parent variety) used in the breeding program including, in respect of each parent variety:

(i)

particulars of the names (including synonyms) by which the parent variety is known or sold in Australia; and

(ii)

particulars of any PBR granted in Australia or in any other contracting party; and

(gb)

a brief description of the manner in which the variety was bred; and

(h)

particulars of any application for, or grant of, rights of any kind in the variety in any other country; and

(i)

the name of an approved person who:

(i)

will verify the particulars in the application; and

(ii)

will supervise any test growing or further test growing of the variety required under section 37; and

(iii)

will verify a detailed description of the variety when such a description is supplied to the Secretary;

(j)

such other particulars (if any) as are required by the approved form.

Note: The information given under paragraph (ga) is not available to the public under section 36.

(3)

If an applicant is resident overseas, the applicant must, unless the applicant has appointed an agent resident in Australia to act on the applicant's behalf in the application, specify, in addition to any address overseas, a postal address in Australia for the service of notices on the applicant.

(4)

An applicant must, before, or at the time of, lodging an application under this section, pay to the Commonwealth such application fee (if any) as is prescribed.

(1)

If PBR has not been granted in another contracting party in a plant variety before an application for that right in that variety is made in Australia, the name set out in the application must comply with subsections (4), (5), (6) and (7).

(2)

If, before making an application in Australia for PBR in a plant variety, PBR has been granted in that variety in another contracting party:

(a)

the name of the variety set out in the Australian application must be the name under which PBR was first granted in another contracting party; but

(b)

there may, and, if the name referred to in paragraph (a) does not comply with subsections (4), (5), (6) and (7) there must, also be included in the application a synonym, additional to the name of the variety.

(3)

The synonym must be a name determined in accordance with subsections (4), (5), (6) and (7) as if the variety had not been the subject of a grant of PBR in another contracting party.

(3A)

If, before making an application in Australia for PBR in a plant variety, PBR has not been granted in that variety in another contracting party, a synonym may also be included in the application.

(4)

A name (including a synonym), in respect of a plant variety, must be a word or words (whether invented or not) with or without the addition of either or both of the following:

(a)

a letter or letters that do not constitute a word;

(b)

a figure or figures.

(5)

A name (including a synonym), in respect of a plant variety must not:

(a)

be likely to deceive or cause confusion, including confusion with the name of another plant variety of the same plant class; or

(b)

be contrary to law; or

(c)

contain scandalous or offensive matter; or

(d)

be prohibited by regulations in force at the time of the application; or

(e)

be or include a trade mark that is registered, or whose registration is being sought, under the Trade Marks Act 1995, in respect of live plants, plant cells and plant tissues.

(6)

A name (including a synonym), in respect of a plant variety must comply with the International Code of Botanical Nomenclature and subsidiary codes.

(7)

A name (including a synonym), in respect of a plant variety must not consist of, or include:

(a)

the name of a natural person living at the time of the application unless the person has given written consent to the name of the variety; or

(b)

the name of a natural person who died within the period of 10 years before the application unless the legal personal representative of the person has given written consent to the name of the variety; or

(c)

the name of a corporation or other organisation, unless the corporation or other organisation has given its written consent to the name of the variety.

(1)

The Secretary must ensure that each application for PBR is given a priority date.

(2)

The priority date is, unless section 29 applies in relation to the application, the date on which the application was lodged with the Secretary.

(3)

If 2 or more applications are made for PBR in the same plant variety, the Secretary must first consider the application having the earlier priority date.

(1)

If:

(a)

a person has lodged an application for PBR in a plant variety in one or more contracting parties other than Australia; and

(b)

within a period of 12 months after the date that the earliest of those applications (the foreign application) was lodged, the person lodges an application in Australia (the local application) for PBR in the variety; and

(c)

the local application is accompanied with a claim to have the date of lodgment of the foreign application treated as the priority date for the purposes of the local application; and

(d)

the local application is accepted;

the person is entitled to have the date of lodgment of the foreign application treated as the priority date for the purposes of the local application, subject to subsections (3) and (4).

(3)

The entitlement of the person to have the date of lodgment of the foreign application treated as the priority date for the purposes of the local application is conditional on the person lodging with the Secretary, within 3 months of making the local application, a copy of the documents that constituted the foreign application, certified by the Authority that received the foreign application to be a true copy of the documents.

(4)

The entitlement of the person to have the date of lodgment of the foreign application treated as the priority date for the purposes of the local application is conditional on the person providing to the Secretary, within a period of 3 years after the making of the foreign application, such further particulars in relation to the plant variety as are required to complete the consideration of the local application.

(1)

The Secretary must, as soon as practicable after an application for PBR is lodged in a plant variety, decide whether to accept or reject the application.

(2)

If the Secretary is satisfied that:

(a)

no other application has, or, if the application were to meet the requirements of paragraphs (b) and (c), would have, an earlier priority date in the variety; and

(b)

the application complies with the requirements of section 26; and

(c)

the application establishes a prima facie case for treating the plant variety as distinct from other varieties;

the Secretary must accept the application.

(3)

If the Secretary is not satisfied of all of the matters referred to in subsection (2), the Secretary must reject the application.

(4)

If the Secretary decides to accept the application, the Secretary must:

(a)

give written notice to the applicant telling the applicant that the application has been accepted; and

(b)

as soon as possible after notifying the applicant—give public notice of the acceptance of the application.

(5)

If the Secretary decides to reject an application, the Secretary must:

(a)

give written notice to the applicant telling the applicant of the rejection and setting out the reasons for the rejection; and

(b)

as soon as possible after notifying the applicant—give public notice of the rejection of the application.

Note: A decision under this section to accept or reject an application is reviewable by the AAT under section 77.

(1)

If:

(a)

after an application for PBR in a plant variety has been accepted; but

(b)

before concluding the examination of that application (including the subsequent detailed description of that variety) and of any objection to the application;

the right of the applicant to apply for PBR in a particular plant variety is

(2)

If the Secretary is satisfied that the right to apply for PBR in a particular plant variety has been assigned to, or has been transmitted by will or operation of law to, to a particular person, the Secretary must vary the application so that that person is shown as the applicant.

(3)

A request by a person under subsection (1) must give an address in Australia for the service of notices on the person for the purposes of this Act.

(4)

If the Secretary complies with a request under subsection (1) and the address for the service of notices that is given in connection with that request is different from the address contained in the application as the address for service of documents on the applicant, the Secretary must vary the application so that the address so given is shown as the address for service of documents on the applicant.

(5)

If:

(a)

after an application for PBR in a plant variety has been accepted; but

(b)

before concluding the examination of that application (including the subsequent detailed description of that variety) and of any objection to the application;

the applicant requests the Secretary, in writing, to vary the application in any other respect other than that referred to in subsection (1), the Secretary may, in his or her discretion, vary the application in accordance with the request.

(6)

Despite the previous provisions of this section, the Secretary is not obliged or permitted to vary an application in response to a request under this section unless the person making the application for the variation has paid to the Commonwealth the application variation fee that is prescribed for the purposes of this section.

Note: A decision under this section to vary or to refuse to vary an application is reviewable by the AAT under section 77.

(1)

If the Secretary varies an application in accordance with a request under subsection 31(1) or (5), the Secretary must, as soon as practicable, give written notice to the person making the request telling the person that the application has been so varied.

(2)

If the Secretary rejects a request under subsection 31(1) or (5), the Secretary must, as soon as practicable, give written notice to the person making the request:

(a)

telling the person that the request has been rejected; and

(b)

setting out the reasons for the rejection.

(3)

If the Secretary rejects a request under subsection 31(1), the Secretary must, as soon as practicable, also give written notice to the applicant:

(a)

setting out particulars of the request; and

(b)

telling the applicant that the request has been rejected; and

(c)

setting out the reasons for the rejection.

(4)

If the Secretary varies an application in accordance with a request under subsection 31(1), the Secretary must, as soon as practicable, also give written notice of particulars of the variation to the person who was the applicant before the variation was made.

(5)

If an application:

(a)

is varied because of a request under subsection 31(1); or

(b)

is varied because of a request under subsection 31(5) in a significant respect;

the Secretary must, as soon as practicable, give public notice of particulars of the variation.

(1)

An application may be withdrawn by the applicant at any time.

(2)

If an application is withdrawn after public notice of acceptance of the application is given, the Secretary must, as soon as practicable, give public notice of the withdrawal.

(1)

As soon as practicable after, but not later than 12 months after, an application has been accepted, or within such further period as the Secretary allows for the purpose, the applicant must, if the applicant has not already done so, give the Secretary a detailed description of the plant variety to which the application relates.

Note: A decision under this subsection to refuse to extend the 12 months period is reviewable by the AAT under section 77.

(2)

If the applicant fails to give the Secretary the detailed description required under this section within the required period, the application is taken to have been withdrawn.

(3)

The detailed description must:

(a)

be in writing; and

(b)

be in an approved form; and

(c)

be lodged with the Secretary in a manner set out in the approved form.

(4)

The detailed description must contain:

(a)

particulars of the characteristics that distinguish the variety from other plant varieties the existence of which is a matter of common knowledge; and

(b)

particulars of:

(i)

any test growing carried out, including a test growing carried out as required under section 37, to establish that the variety is distinct, uniform and stable; and

(ii)

any test growing carried out as required under section 41; and

(c)

if the variety was bred outside Australia—particulars of any test growing outside Australia that tend to establish that the variety will, if grown in Australia, be distinct, uniform and stable; and

(d)

such other particulars (if any) as are required by the approved form;

and must be accompanied by a certificate, in the approved form, verifying the particulars of the detailed description, completed by the approved person nominated in the application as the approved person in relation to that application.

(5)

The Secretary must, as soon as practicable after receiving a detailed description of a plant variety to which an application for PBR relates, give public notice of that description.

(6)

The applicant must:

(a)

unless paragraph (b) applies—within 12 months after the application has been accepted; and

(b)

if the detailed description has been given to the Secretary before the end of that period—at the time when the description was given;

pay to the Commonwealth such examination fee as is prescribed.

(7)

Subsection (6) does not apply to an applicant if the plant variety to which the application relates is in quarantine under the Quarantine Act 1908 when the examination fee becomes payable. Instead, the applicant must pay the prescribed examination fee within 12 months after the plant variety is released from quarantine.

(1)

Any person who considers, in relation to an application for PBR in a plant variety that has been accepted:

(a)

that his or her commercial interests would be affected by the grant of that PBR to the applicant; and

(b)

that the Secretary cannot be satisfied, in relation to that application, of a matter referred to in a paragraph of subsection 26(2) or in subparagraph 44(1)(b)(i), (ii), (iii), (iv), (v), (vi), (vii) or (viii);

may lodge a written objection to the grant of PBR with the Secretary at any time after the giving of that public notice of acceptance of the application and before the end of the period of 6 months starting with the public notice of that detailed description.

(2)

An objection must set out:

(a)

particulars of the manner in which the person considers his or her commercial interests would be affected; and

(b)

the reasons why the person considers that the Secretary cannot be satisfied of a matter referred to in paragraph (1)(b).

(2A)

An objection is of no effect unless it is accompanied by the prescribed fee.

(3)

The Registrar must give a copy of the objection to the applicant.

(1)

A person may, at any reasonable time, inspect an application for PBR in a plant variety (including any detailed description of the plant variety given in support of the application) or an objection lodged in respect of that application (including that detailed description).

(2)

A person is entitled, on payment of such fee as is prescribed, to be given a copy of an application for PBR in a plant variety, of an objection to such an application, or of a detailed description of the plant variety.

(3)

However, this section does not entitle a person to inspect the part of the application that contains the information referred to in paragraph 26(2)(ga) or to have a copy of the part of the application containing that information, unless the person is:

(a)

the applicant; or

(b)

the applicant's authorised agent; or

(c)

the Minister; or

(d)

the Secretary; or

(e)

a person who is required to inspect the part of the application in the course of performing his or her duties in accordance with this Act; or

(f)

a person prescribed for the purposes of this subsection.

PLANT BREEDER'S RIGHTS ACT 1994
- SECT 37
Test growing of plant varieties

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(1)

If, in dealing with:

(a)

an application for PBR that has been accepted; or

(b)

an objection to such an application for PBR; or

(c)

a request for revocation of PBR;

the Secretary decides that there should be a test growing or a further test growing of the variety to which the application, objection or request relates, the Secretary:

(d)

must give written notice of that decision:

(i)

to the person who made the application, objection or request; and

(ii)

in the case of an objection to an application for PBR—also to the applicant; and

(iii)

in the case of a request for revocation of PBR—also to the grantee; and

(e)

may also give written notice of that decision to any other person whom the Secretary considers appropriate if the test growing or further test growing is a comparative test growing.

Note: A decision under this subsection to require a test growing is reviewable by the AAT under section 77.

(2)

The notice, in addition to telling the person of the Secretary's decision:

(a)

must specify the purpose of the test growing; and

(b)

may require the person:

(i)

to supply the Secretary with sufficient plants or sufficient propagating material of plants of the variety, and with any necessary information, to enable the Secretary to arrange a test growing; or

(ii)

to make arrangements for an approved person to supervise the test growing, to supply the approved person with sufficient plants or propagating material to enable the test growing, to give the Secretary a copy of the records of observations made during the test growing and to certify the records of observations so provided;

whichever the Secretary considers appropriate.

(2A)

A person to whom a notice is sent under this section must comply with the requirements of the notice:

(a)

in the case of trees and vines, or propagating materials of trees and vines—within 2 years from the date of service of the notice; and

(b)

in the case of other species of plant or propagating materials of other species of plant—within 12 months from that date.

(2B)

If a person, without reasonable excuse, fails to comply with the requirements of a notice issued under this section, the Secretary may:

(a)

if the person is the grantee—revoke PBR, in the plant variety to which the notice relates, under section 50; or

(b)

if the person made an application, objection or request—decide not to further proceed with the application, objection or request for revocation.

Note: A decision not to further proceed with the application, objection or request for revocation is reviewable by the AAT under section 77.

(3)

If a notice under this section contains the requirement referred to in subparagraph (2)(b)(i) and the applicant complies with the request, the Secretary must arrange to have the variety concerned test grown.

(4)

After completion of a test growing arranged by the Secretary, any propagating material of the variety used in, or resulting from, the test growing, that is capable of being transported must be delivered to the person by whom propagating material of that variety was supplied for the purposes of the test growing.

(5)

All of the costs associated with a test growing must be paid:

(a)

if it is conducted to deal with an application for PBR—by the applicant for PBR; or

(b)

if it is conducted to deal with an objection to an application for PBR:

(i)

by the applicant for PBR, where the test growing shows that there are valid reasons for the objection; or

(ii)

by the objector, in any other case; or

(c)

if it is conducted to deal with a request for revocation of PBR:

(i)

by the grantee, where the test growing shows that there are valid reasons for the request; or

(ii)

by the person making the request, in any other case.

(6)

If a contracting party, or a national or an organisation of a contracting party, requests the Secretary to conduct in Australia a test growing of a plant variety, the Secretary may decide to conduct the test growing as so requested.

(7)

If the Secretary decides to conduct a test growing under subsection (6), subsections (1), (2), (3), (4) and (5) apply to such test growing as if:

(a)

the person or organisation requesting the test growing under subsection (6) was an applicant for PBR; and

(b)

the test growing had been decided on in relation to that application.

(1)

If:

(a)

a plant variety (the subject variety):

(i)

was bred outside Australia; or

(ii)

was bred in Australia but, before an application for PBR was made in Australia, an application for PBR was made in a contracting party other than Australia; and

(b)

an application under this Act for PBR in the variety has been accepted;

the variety is not to be taken to have a particular characteristic unless subsection (2), (3), (4) or (5) applies to the variety.

(2)

This subsection applies to the subject variety if a test growing in Australia has demonstrated that the variety has the particular characteristic.

(3)

This subsection applies to the subject variety if:

(a)

a test growing of the variety has been carried out outside Australia; and

(b)

that test growing has demonstrated that the variety has the particular characteristic; and

(c)

under an agreement between Australia and the country in which the test growing was carried out, Australia is required to accept that the variety has that particular characteristic.

(4)

This subsection applies to the subject variety if the Secretary is satisfied that:

(a)

a test growing of the variety carried out outside Australia has demonstrated that the variety has the particular characteristic; and

(b)

that test growing of the variety is equivalent to a test growing of the variety in Australia.

(5)

This subsection applies to the subject variety if the Secretary is satisfied that:

(a)

a test growing of the variety carried out outside Australia has demonstrated that the variety has the particular characteristic; and

(b)

any test growing of the variety carried out in Australia would probably demonstrate that the variety has that characteristic; and

(c)

if a test growing of the variety in Australia sufficient to demonstrate whether the variety has that characteristic were to be carried out, it would take longer than 2 years.

Note: A decision to the effect that the Secretary is, or is not, satisfied of the matters referred to in subsection (4) or (5) is reviewable by the AAT under section 77.

(1)

When an application for PBR in a plant variety is accepted, the applicant is taken to be the grantee of that right for the purposes of Part 5 from the day the application is accepted until:

(a)

the application is disposed of; or

(b)

if the Secretary gives the applicant a notice under subsection (2)—the notice is disposed of;

whichever occurs first.

(2)

If the Secretary is satisfied in relation to an application for PBR in a plant variety, that:

(a)

PBR will not be granted or is unlikely to be granted to the applicant; or

(aa)

a decision has been taken under paragraph 37(2B)(b) not to proceed with the application; or

(ab)

the application has been withdrawn; or

(b)

the applicant has given an undertaking to a person (whether or not for consideration) not to commence proceedings for infringement of the right of which the applicant is deemed to be the grantee; or

(c)

at least 12 months have elapsed since the publication of the detailed description that was given to the Secretary under subsection 34(1);

the Secretary may notify the applicant, in writing, that this section will cease to apply to that variety on a day specified in the notice unless, before that time the applicant has made a submission to the Secretary providing reasons why this section should not cease to apply.

Note: A decision under this subsection to notify an applicant is reviewable by the AAT under section 77.

(3)

For the purposes of paragraph (1)(b) a notice referred to in that paragraph is not taken to be disposed of until:

(a)

the end of the period within which application may be made to the AAT for a review of the giving of the notice; or

(b)

if such an application is made to the AAT—the application is withdrawn or finally determined, whether by the AAT or a court.

(4)

As soon as practicable after a person ceases to be taken to be the grantee of PBR under this section, the Secretary must give public notice that the person has ceased to be so taken.

(5)

Nothing in this section affects the powers of the Federal Court under subsection 44A(2) of the AAT Act where an appeal is begun in that Court from a decision of the AAT.

(6)

A person who is taken to be the grantee of PBR in a plant variety is not entitled to begin an action or proceeding for an infringement of that right occurring during the period when the person is so taken unless and until that right is finally granted to the person under section 44.

(1)

If:

(a)

a person is the grantee of PBR in a particular plant variety—(the initial variety); and

(b)

another person is the grantee of, or has applied for, PBR in another plant variety (the second variety); and

(c)

the grantee of PBR in the initial variety is satisfied that the second variety is, within the meaning of section 4, an essentially derived variety of the initial variety; and

(d)

the initial variety has not itself been declared to be an essentially derived variety of another variety in which PBR has been granted;

the grantee of PBR in the initial variety may make written application to the Secretary for a declaration that the second variety is so derived.

(2)

Nothing in this section implies that a person who is the grantee of PBR in the initial variety may not, in relation to an application by another person for PBR in the second variety that has been accepted but not finally determined:

(a)

make an objection, under section 35, to the granting of PBR in the second variety; and

(b)

in the alternative, if PBR is granted to another person in the second variety—apply under subsection (1) for a declaration that the second variety is essentially derived from the initial variety.

(3)

If the second variety:

(a)

is the subject of an application for PBR; and

(b)

is also the subject of an application for a declaration of essential derivation;

then, unless and until the Secretary decides to grant the application for PBR:

(c)

the Secretary must not make the declaration of essential derivation; but

(d)

the Secretary may, in his or her discretion:

(i)

examine both the application for PBR and the application for a declaration of essential derivation at the same time; and

(ii)

for the purpose only of examining the application for a declaration of essential derivation—treat the applicant for PBR as the grantee of PBR in the variety.

(4)

An application for a declaration of essential derivation must:

(a)

be in writing; and

(b)

be in an approved form; and

(c)

be lodged with the Secretary in a manner set out in the approved form; and

(d)

be accompanied by the prescribed fee in respect of the application.

(5)

An application must contain such information relevant to establishing a prima facie case that the second variety is an essentially derived variety of the initial variety as is required by the form.

(6)

If the initial variety has itself been declared to be essentially derived from another variety, the Secretary must refuse to declare the second variety essentially derived from:

(a)

the initial variety; and

(b)

inform the applicant for the declaration in writing, to that effect, and give the applicant reasons for the decision.

(7)

If the initial variety has not been so declared, the Secretary must determine, on the basis of the application, whether the Secretary is satisfied that there is a prima facie case that the second variety is an essentially derived variety of the initial variety.

(8)

If the Secretary is satisfied of that prima facie case, the Secretary must:

(a)

inform the applicant and the grantee of PBR in the second variety that the Secretary is so satisfied; and

(b)

inform the grantee of PBR in the second variety that, unless the grantee establishes, within 30 days after being so informed or such longer period as the Secretary allows, that the second variety is not an essentially derived variety of the initial variety, the Secretary will, at the end of that period, declare the second variety to be such an essentially derived variety.

Note: A decision under this subsection to refuse to extend the period of 30 days is reviewable by the AAT under section 77.

(9)

If the Secretary is not satisfied of that prima facie case, the Secretary must inform the applicant, in writing, to that effect, and give the applicant reasons for the decision.

(10)

If, after considering:

(a)

the information presented by the grantee of PBR in the second variety; and

(b)

any information obtained from a test growing conducted in accordance with section 41; and

(c)

any other relevant information obtained by the Secretary;

the Secretary is not satisfied that the grantee of PBR in the second variety has rebutted the prima facie case, the Secretary must:

(d)

declare, in writing, that the second variety is an essentially derived variety of the initial variety; and

(e)

by notice in writing given to the grantee of PBR in the initial variety, tell that grantee of the declaration; and

(f)

by notice in writing given to the grantee of PBR in the second variety, tell that grantee of the declaration and set out the reasons for not being satisfied that the prima facie case has been rebutted.

(11)

If, after considering the information referred to in paragraph (10)(a), (b) or (c), the Secretary is satisfied that the grantee of PBR in the second variety has rebutted the prima facie case, the Secretary must:

(a)

by notice in writing given to the grantee of PBR in the initial variety, tell that grantee that he or she is so satisfied and set out the reasons for being so satisfied; and

(b)

by notice in writing given to the grantee of PBR in the second variety, tell that grantee that he or she is so satisfied.

(12)

While a declaration that the second variety is essentially derived from the initial variety remains in force, section 19 applies in relation to the second variety as if:

(a)

the references in that section to the grantee, in relation to that variety were references both to the person holding PBR in that variety and to the person holding PBR in the initial variety; and

(b)

the reference in subsection 19(4) to 2 years after the grant of PBR were a reference to 2 years after the grant of PBR in the second variety whether or not the declaration of essential derivation was made at the same time or a later time; and

(c)

a failure by the other person holding PBR in the initial variety or the person holding PBR in the second variety to co-operate in making the second variety available to the public in accordance with the requirements of subsection 19(1) was a failure of the grantee to comply with the requirements of that subsection.

Note: A decision under this section to declare, or not to declare, a plant variety essentially derived is reviewable by the AAT under section 77.

(1)

If:

(a)

the grantee of PBR in a plant variety (the initial variety) applies for a declaration that another variety (the second variety) is an essentially derived variety of the initial variety; and

(b)

in the course of that application the grantee of PBR in the initial variety establishes a prima facie case that the second variety is essentially derived; and

(c)

on the basis of information supplied by the grantees of PBR in the initial variety and in the second variety, the Secretary comes to the view that a test growing or further test growing is necessary to determine whether the prima facie case has been rebutted;

the Secretary must give notice of that decision both to the grantee of PBR in the initial variety and in the second variety.

Note: A decision under this subsection to require a test growing is reviewable by the AAT under section 77.

(2)

The notice must require:

(a)

the grantee of PBR in the initial variety to supply the Secretary with sufficient plants or sufficient propagating material of plants of that variety and with any necessary information; and

(b)

the grantee of PBR in the second variety to supply the Secretary with sufficient plants or sufficient propagating material of plants of that second variety and with any necessary information;

to enable the Secretary to arrange a test growing.

(3)

After completion of the test growing, any propagating material of a variety used in, or resulting from, the test growing that is capable of being transported must be delivered to the person by whom propagating material of that variety was supplied for the purpose of the test growing.

(4)

All costs associated with the test growing must be paid by the person who, without the test growing, failed to rebut the prima facie case of essential derivation, whether or not the test growing led to rebuttal of that case.

(5)

If the Secretary requires a test growing or further test growing, subsection 40(8) has effect as if the reference in that subsection to 30 days after being so informed were a reference to 30 days after being informed of the results of the test growing.

(1)

PBR must not be granted in any variety of plant in a taxon that the regulations declare to be a taxon to which this Act does not apply.

(2)

The Governor-General must not make a regulation for the purposes of subsection (1) unless the Governor-General has been informed by the Minister that the Minister has considered advice given by the Advisory Committee in relation to the desirability of making the regulation.

(3)

If:

(a)

a plant variety is a hybrid; and

(b)

each of the plant varieties from which it is derived is a plant variety included in a taxon to which this Act does not apply;

PBR must not be granted in the hybrid.

(1)

For the purposes of this Act, a plant variety in which an application for PBR is made is registrable if:

(a)

the variety has a breeder; and

(b)

the variety is distinct; and

(c)

the variety is uniform; and

(d)

the variety is stable; and

(e)

the variety has not been exploited or has been only recently exploited.

(2)

For the purposes of this section, a plant variety is distinct if it is clearly distinguishable from any other variety whose existence is a matter of common knowledge.

(3)

For the purposes of this section, a plant variety is uniform if, subject to the variation that may be expected from the particular features of its propagation, it is uniform in its relevant characteristics on propagation.

(4)

For the purposes of this section, a plant variety is stable if its relevant characteristics remain unchanged after repeated propagation.

(5)

For the purposes of this section, a plant variety is taken not to have been exploited if, at the date of lodging the application for PBR in the variety, plant material of the variety has not been sold to another person by, or with the consent of, the breeder.

(6)

For the purposes of this section, a plant variety is taken to have been only recently exploited if, at the date of lodging the application for PBR in the variety, plant material of the variety has not been sold to another person by, or with the consent of, the breeder, either:

(a)

in Australia—more than one year before that date; or

(b)

in the territory of another contracting party:

(i)

in the case of trees or vines—more than 6 years before that date; or

(ii)

in any other case—more than 4 years before that date.

Note: For the definition of sell see subsection 3(1).

(7)

Subsection (6) does not apply to a sale by the breeder of a plant variety of plant material of the variety to another person if that sale is a part of, or related to, another transaction under which the right of the breeder to make application for PBR in that plant variety is sold to that other person.

(7A)

Subsection (6) does not apply to a sale of plant material of a plant variety to a person by, or with the consent of, the breeder if:

(a)

the sole purpose of the sale is for the person to multiply plant material of that plant variety on behalf of the breeder; and

(b)

under the agreement for the sale, immediately after the plant material is multiplied, property in the new plant material vests in the breeder.

(7B)

Subsection (6) does not apply to a sale of plant material of a plant variety to a person by, or with the consent of, the breeder if the sale is part of an agreement under which the person agrees to use plant material of that variety for the sole purpose of evaluating the variety in one or more of the following tests or trials:

(a)

field tests;

(b)

laboratory trials;

(c)

small-scale processing trials;

(d)

tests or trials prescribed for the purposes of this subsection.

(7C)

Subsection (6) does not apply to a sale of plant material of a plant variety to a person by, or with the consent of, the breeder if:

(a)

the sale only involves plant material that is a by-product or surplus product of one or more of the following:

(i)

the creation of the variety;

(ii)

a multiplication of the variety;

(iii)

tests or trials covered by subsection (7B); and

(b)

the plant material is sold:

(i)

without identification of the plant variety of the plant material; and

(ii)

for the sole purpose of final consumption.

(8)

In addition to any other reason for treating a plant variety as a variety of common knowledge, a variety is to be treated as a variety of common knowledge if:

(a)

an application for PBR in the variety has been lodged in a contracting party; and

(b)

the application is proceeding, or has led, to the grant of PBR.

(9)

A plant variety that is to be treated as a variety of common knowledge under subsection (8) because of an application for PBR in the variety is to be so treated from the time of the application.

(10)

In this section: