An Act to provide for the granting of proprietary rights to
breeders of certain new varieties of plants and fungi, to repeal the Plant
Variety Rights Act 1987, and for related purposes
Part 1—Preliminary
1
Short title [see
Note 1]
This Act may be cited as the Plant
Breeder’s Rights Act 1994.
2
Commencement [see
Note 1]
(1) Subject to subsection (2), the
provisions of this Act commence on a day to be fixed by Proclamation.
(2) If a provision of this Act does not
commence under subsection (1) within the period of 6 months commencing on
the day on which this Act receives the Royal Assent, it commences on the first
day after the end of that period.
3
Definitions
(1) In this Act, unless the contrary
intention appears:
AAT means the Administrative Appeals
Tribunal.
AAT Act means the Administrative Appeals
Tribunal Act 1975.
Advisory Committee means the Plant Breeder’s
Rights Advisory Committee established by section 63.
applicant, in relation to an application,
means the person currently shown in the application as the person making the
application.
application means an application under
section 24 for PBR in a plant variety to which this Act extends.
approved form means a form approved by the
Secretary for the purposes of the provision in which the expression appears.
breeder, in
relation to a new plant variety, means:
(a) subject to paragraph (c), if
the variety was bred by one person only—the person; or
(b) subject to paragraph (c), if
the variety was bred by 2 or more persons (whether jointly or independently and
whether at the same time or different times)—each of those persons; or
(c) if the variety was bred:
(i) by a person in the
course of performing duties or functions as a member or employee of a body
(whether incorporate or unincorporate); or
(ii) by
2 or more persons in the course of performing duties as a member or employee of
such a body;
the
body of which that person or each of those persons is a member or employee;
and includes any person or body that is the successor in
title to the person referred to in paragraph (a), to any of the persons
referred to in paragraph (b) or the body referred to in paragraph (c).
conditioning, in relation to propagating
material of a plant variety, means:
(a) cleaning, coating, sorting,
packaging or grading of the material; or
(b) any other similar treatment;
undertaken for the purpose of preparing the material for
propagation or sale.
contracting party means a State, or an
intergovernmental organisation, that is a party to the Convention.
Convention means the International Convention
for the Protection of New Varieties of Plants, a copy of the English text of
which is set out in the Schedule.
Court means the Federal Court of Australia.
dependent plant variety, in relation to
another plant variety in which a person holds PBR in Australia, means a plant
variety over which PBR in the other plant variety extends under section 13.
essential characteristics, in relation to a
plant variety, means heritable traits that are determined by the expression of
one or more genes, or other heritable determinants, that contribute to the principal
features, performance or value of the variety.
genetic resource centre means a place that
the Secretary declares to be a genetic resource centre under subsection 70(1).
grantee:
(a) in relation to PBR in a plant
variety—means the person currently entered on the Register as the holder of
that right in that variety; and
(b) in relation to PBR in a plant
variety declared to be an essentially derived variety of another plant
variety—includes the person currently entered on the Register as the holder of
that right in relation to that other plant variety.
herbarium means the organisation that the
Secretary declares to be the herbarium under section 71.
hybrid means a plant that is a combination of
2 or more genotypes of the same or different taxa but excluding a combination
comprising a scion grafted on to a root stock.
indigenous means:
(a) a member of the Aboriginal race of
Australia; or
(b) a descendant of the indigenous
inhabitants of the Torres Strait Islands.
member means a member of the Advisory Committee
and includes the Registrar.
PBR, in a plant variety, means the plant
breeder’s right specified in section 11.
PBR, in respect of a plant variety registered
in another contracting party, means a plant breeder’s right corresponding to
the right specified in section 11 conferred under the law of that
contracting party.
PBR office means place of work of the
Registrar or a person who is engaged under the Public Service Act 1999
or otherwise for or on behalf of the Commonwealth and whose duties involve providing
assistance to the Registrar.
PBR sub‑office means place of work in a
single State of the Registrar or a person who is engaged under the Public
Service Act 1999 or otherwise for or on behalf of the Commonwealth and
whose duties involve providing assistance to the Registrar.
plant includes all fungi and algae but does
not include bacteria, bacteroids, mycoplasmas, viruses, viroids and
bacteriophages.
plant class, for the purpose of variety
denomination, means a class consisting of all plants:
(a) that belong to a single botanical
genus; or
(b) that belong to a group of closely
related genera;
that is specified from time to time as a plant class in
the Registrar’s List of Plant Classes maintained under subsection 61(1A).
plant variety
means a plant grouping (including a hybrid):
(a) that is contained within a single
botanical taxon of the lowest known rank; and
(b) that can be defined by the
expression of the characteristics resulting from the genotype of each
individual within that plant grouping; and
(c) that can be distinguished from any
other plant grouping by the expression of at least one of those
characteristics; and
(d) that can be considered as a
functional unit because of its suitability for being propagated unchanged.
Note: Plant groupings for the purposes of this
definition include genetically modified plant groupings. See section 6.
process, in relation to the reproduction of
propagating material, of a plant variety does not include:
(a) the development of a cell or
tissue or a plant part into a plant of that variety; or
(b) the growth of a plant into a
larger plant of that variety.
propagating material, in relation to a plant
of a particular plant variety, means any part or product from which, whether
alone or in combination with other parts or products of that plant, another
plant with the same essential characteristics can be produced.
propagation, in relation to a living organism
or its components, means the growth, culture or multiplication of that organism
or component, whether by sexual or asexual means.
Register means the Register of Plant
Varieties kept under section 61.
Registrar means the Registrar of Plant
Breeder’s Rights.
reproduction, in relation to propagating
material of a plant of a particular variety, means any process, whereby the
number of units of that propagating material that have the capacity to grow
into independent plants is multiplied.
Secretary means the Secretary of the
Department.
sell includes letting on hire and exchanging
by way of barter.
successor means:
(a) in relation to a breeder of a
plant variety—a person to whom the right of the breeder to make application for
PBR in that variety has been assigned, or transmitted by will or by operation
of law; and
(b) in relation to a grantee of PBR—a
person to whom that right has been assigned, or transmitted by will or by
operation of law.
synonym, in relation to the name of a plant
variety, means a name that:
(a) is included in an application in
addition to the name of the variety; and
(b) is a name by which the variety
will be known or sold in Australia.
test growing includes a comparative test
growing.
Union means the Union for the Protection of
New Varieties of Plants as defined in Article 1 of the Convention.
will includes a codicil.
(2) If a provision of this Act requires or
authorises the Secretary or the Registrar to give written notice of any matter
to a particular person and does not specify the means of giving that notice,
that provision is to be taken, for the purposes of section 29 of the Acts
Interpretation Act 1901 to authorise or require the Secretary or Registrar
to serve the notice on the person personally or by post.
4
Definition of essentially derived varieties
A plant variety is taken to be an
essentially derived variety of another plant variety if:
(a) it is predominantly derived from
that other plant variety; and
(b) it retains the essential
characteristics that result from the genotype or combination of genotypes of
that other variety; and
(c) it does not exhibit any important
(as distinct from cosmetic) features that differentiate it from that other
variety.
5
Definition of breeding
(1) A reference in this Act to breeding, in
relation to a new plant variety, includes a reference to the discovery of a
plant together with its use in selective propagation so as to enable the
development of the new plant variety.
(2) If a plant is discovered by one person
but used in selective propagation by another so as to enable the development of
a new plant variety, those persons are together taken to be the joint breeders
of the new plant variety.
6
Genetic modification
For the purposes of this Act, an
organism may be treated as constituting a plant grouping within a single
botanical taxon despite the fact that the genome of the plants in that plant
grouping has been altered by the introduction of genetic material that is not
from plants.
8
Approved persons
(1) In this Act, a reference to an approved
person is a reference to a person who, on the basis of the person’s
qualifications and experience, the Secretary has designated, by instrument in
writing, to be such a person in relation to one of more species of plant.
(2) The Registrar must, from time to time,
cause lists of all persons who are approved persons in relation to particular
species of plant to be published in the Plant Varieties Journal.
9 Act
to bind Crown
(1) This Act binds the Crown in right of the
Commonwealth, of each of the States, of the Australian Capital Territory and of
the Northern Territory.
(2) Nothing in this Act renders the Crown, in
any of its capacities, liable to be prosecuted for an offence.
9A
Application of the Criminal Code
Chapter 2 (other than Part 2.5)
of the Criminal Code applies to all offences against this Act.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
10
Extent of Act
Nothing in this Act requires or permits
the granting of PBR in a plant variety unless:
(a) if Australia is a party to the
Convention—the grant is appropriate to give effect to the obligations of Australia
under the Convention; or
(b) the breeding of the plant variety
constitutes an invention for the purpose of paragraph 51(xviii) of the
Constitution.
Part 2—Plant breeder’s right
11
General nature of PBR
Subject to sections 16, 17, 18, 19
and 23, PBR in a plant variety is the exclusive right, subject to this Act, to
do, or to license another person to do, the following acts in relation to
propagating material of the variety:
(a) produce or reproduce the material;
(b) condition the material for the
purpose of propagation;
(c) offer the material for sale;
(d) sell the material;
(e) import the material;
(f) export the material;
(g) stock the material for the
purposes described in paragraph (a), (b), (c), (d), (e) or (f).
Note: In certain circumstances, the right conferred
by this section extends to essentially derived varieties (see section 12),
certain dependent plant varieties (see section 13), harvested material
(see section 14) and products obtained from harvested material (see
section 15).
12
Extension of PBR to cover essentially derived varieties
Subject to section 23, if:
(a) PBR is granted to a person in a
plant variety (the initial variety); and
(b) PBR is granted to another person
in another plant variety; and
(c) the Secretary makes a declaration,
on application by the first‑mentioned person, that the other plant
variety is an essentially derived variety from the initial variety;
the right granted in the initial variety extends, with
effect from the date of the declaration, to that other plant variety.
13
Extension of PBR to cover certain dependent plant varieties
Subject
to section 23, if PBR is granted in a plant variety (the initial
variety), the right extends to:
(a) any
other plant variety that:
(i) is not clearly
distinguishable from the initial variety; and
(ii) is clearly
distinguishable from any plant variety that was a matter of common knowledge at
the time of the grant of PBR in the initial variety; and
(b) any other plant variety that
cannot be reproduced except by the repeated use of the initial variety or of a
variety referred to in paragraph (a);
whether or not that other plant variety was in existence
at the time PBR was granted in the initial variety.
14
Extension of PBR to harvested material in certain circumstances
(1) If:
(a) propagating material of a plant
variety covered by PBR is produced or reproduced without the authorisation of
the grantee; and
(b) the grantee does not have a
reasonable opportunity to exercise the grantee’s right in relation to the
propagating material; and
(c) material
is harvested from the propagating material;
section 11 operates as if the harvested material were
propagating material.
(2) Subsection (1) applies to so much of
the material harvested by a farmer from propagating material conditioned and
reproduced in the circumstances set out in subsection 17(1) as is not itself
required by the farmer, for the farmer’s own use, for reproductive purposes.
15
Extension of PBR to products obtained from harvested material in certain
circumstances
If:
(a) propagating material of a plant
variety covered by PBR is produced or reproduced without authorisation of the
grantee; and
(b) the grantee does not have a
reasonable opportunity to exercise the grantee’s rights in relation to the
propagating material; and
(c) material is harvested from plants
grown from the propagating material but the grantee does not have, in the
circumstances set out in section 14, a reasonable opportunity of exercising
the grantee’s rights in the harvested material; and
(d) products are made from the
harvested material;
section 11 operates as if those products were
propagating material.
16
Certain acts done for private, experimental or breeding purposes do not infringe
PBR
Any act done in relation to a plant
variety covered by PBR that is done:
(a) privately and for non‑commercial
purposes; or
(b) for experimental purposes; or
(c) for the purpose of breeding other
plant varieties;
does not infringe the PBR.
17 Conditioning
and use of farm saved seed does not infringe PBR
(1) If:
(a) a person engaged in farming
activities legitimately obtains propagating material of a plant variety covered
by PBR either by purchase or by previous operation of this section, for use in
such activities; and
(b) the plant variety is not included
within a taxon declared under subsection (2) to be a taxon to which this
subsection does not apply; and
(c) the person subsequently harvests
further propagating material from plants grown from that first‑mentioned
propagating material;
the PBR is not infringed by:
(d) the conditioning of so much of
that further propagating material as is required for the person’s use for
reproductive purposes; or
(e) the reproduction of that further
propagating material.
(2) The regulations may declare a particular
taxon to be a taxon to which subsection (1) does not apply.
18
Restriction on grantee’s rights in certain circumstances
(1) If:
(a) a person is authorised by or under
a law of the Commonwealth or of a State or Territory to do an act referred to
in a paragraph of section 11 in relation to propagating material of a
plant variety; and
(b) the act is one which (apart from
this provision) would require authorisation from the grantee of PBR in the
plant variety; and
(c) before the person does the act,
the person either pays equitable remuneration to the grantee in respect of the
act or arranges for the payment of such remuneration; and
(d) the person does the act;
then the grantee is not entitled to exercise PBR in the
plant variety against the person in respect of that act.
(2) To avoid doubt, subsection (1) does
not limit the operation of section 17 in relation to the conditioning or
reproduction of propagating material in the circumstances referred to in that
section.
(3) In this section:
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.
19
Reasonable public access to plant varieties covered by PBR
(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.
20 PBR
is personal property
(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.
21
Registrar must be notified of an assignment of 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.
22
Duration of PBR
(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.
23
Exhaustion of PBR
(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.
Part 3—Application for plant breeder’s right
Division 1—The making of the application
24
Right to apply for PBR
(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.
25
Right to apply for PBR is personal property
(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.
26
Form of application for PBR
(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.
27
Names of new plant varieties
(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.
28
Applications to be given priority dates
(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 or, if another date is determined under the
regulations for the application, the date determined.
(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.
29
Priority dates arising from foreign application
(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.
30
Acceptance or rejection of applications
(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.
31
Requests for variation of application
(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 assigned to, or has been transmitted by will or
operation of law to, another person, that other person may request the
Secretary, in writing, to vary the application so that that other person is
shown as the applicant.
(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.
32
Notification of decisions on requests to vary application
(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.
33
Withdrawal of application
(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.
Division 2—Dealing with the application after its acceptance
34
Detailed description in support of application to be given to Secretary
(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.
35
Objection to application for PBR
(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.
36
Inspection of applications and objections
(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.
37
Test growing of plant varieties
(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.
38
Characteristics of plant varieties bred or test grown outside Australia
(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.
Division 3—Provisional protection
39
Provisional protection
(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.
Division 4—Essential derivation
40
Applications for declarations of essential derivation
(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.
41
Test growing associated with applications for declarations of essential
derivation
(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.
Part 4—The grant and revocation of Plant Breeder’s Right
Division 1—Grant of Plant Breeder’s Right
42 PBR
not to be granted in excluded varieties
(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.
43
Registrable plant varieties
(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:
plant material, in relation to a plant
variety, means one or more of the following:
(a) propagating material of the plant
variety;
(b) harvested material of the plant
variety;
(c) products obtained from harvested
material of the plant variety.
44
Grant of PBR
(1) If:
(a) an application for PBR in a plant
variety is accepted; and
(b) after examining the application
(including the subsequent detailed description) and any objection to the
application, the Secretary is, or continues to be, satisfied that:
(i) there is such a
variety; and
(ii) the variety is a
registrable plant variety within the meaning of section 43; and
(iii) the applicant is
entitled to make the application; and
(iv) the grant of that right
is not prohibited by this Act; and
(v) that right has not been
granted to another person; and
(vi) the name of the variety
complies with section 27; and
(vii) propagating material of
that variety has been deposited for storage, at the expense of the applicant,
in a genetic resource centre approved by the Secretary; and
(viii) if the Secretary so
requires, a satisfactory specimen plant of the variety has been supplied to the
herbarium; and
(ix) all fees payable under
this Act in respect of the application, examination and grant have been paid;
the Secretary must grant that right to the applicant.
(2) If:
(a) an application for PBR in a plant
variety is accepted; and
(b) the plant variety is a variety of
a species indigenous to Australia;
the Secretary must require supply of a satisfactory
specimen plant of the variety to the herbarium.
(3) If:
(a) an application for PBR in a plant
variety is accepted; and
(b) the Secretary is not satisfied of
all of the matters referred to in paragraph (1)(b);
the Secretary must refuse to grant that right to the
applicant.
(4) The Secretary must not grant or refuse to
grant PBR in a plant variety until at least 6 months after the giving of public
notice of the detailed description of the variety.
(5) If:
(a) an application for PBR in a plant
variety has been varied under section 31; and
(b) the variation relates to the
detailed description of the variety that has been given to the Secretary; and
(c) the Secretary has given public
notice of the variation;
the Secretary must not grant, or refuse to grant, PBR in
the variety until 6 months after giving public notice of the variation or of
the last such variation.
(6) If an objection to an application for PBR
is made under section 35, the Secretary must give the applicant 30 days,
starting when a copy of the objection is given to the applicant, or such longer
period as the Secretary considers to be reasonable in the circumstances, to
provide an answer to the objection.
(7) A quantity of propagating material of a
plant variety that is lodged with a genetic resource centre must be sufficient
to enable that variety to be kept in existence if there were no other
propagating material of plants of that variety.
(8) The delivery and storage of propagating
material of a plant variety does not affect the ownership of the material but
the material must not be dealt with otherwise than for the purposes of this
Act.
(9) The propagating material of a plant
stored at a genetic resource centre may be used by the Secretary for the
purposes of this Act, including the purposes of section 19.
(10) PBR is granted to a person by the issue to
that person by the Secretary of a certificate in an approved form, signed by
the Secretary or the Registrar, containing such particulars of the plant
variety concerned as the Secretary considers appropriate.
(11) If the PBR is granted to persons who make
a joint application for the right, the right is to be granted to those persons
jointly.
(12) If the Secretary refuses to grant PBR in a
plant variety, the Secretary must, within 30 days of so refusing, give written
notice to the applicant:
(a) telling the applicant of the
refusal; and
(b) setting out the reasons for the
refusal.
Note: A decision under this section to grant, or
refuse to grant, PBR in a plant variety is reviewable by the AAT under section 77.
45
Grant of PBR to be exclusive
(1) Subject to subsections (2) and (3),
only one grant of PBR may be made under this Act in relation to a plant
variety.
(2) If 2 breeders lodge a joint application
for PBR, the Registrar may grant PBR to them jointly.
(3) If:
(a) a person is the grantee of PBR in
a plant variety (the initial variety); and
(b) another person is the grantee of
PBR in another plant variety; and
(c) the Secretary declares the other
variety to be an essentially derived variety of the initial variety;
subsection (1) does not prevent PBR in the initial
variety extending to the other variety.
46
Grant of PBR to be entered on Register
(1) When the Secretary grants PBR in a plant
variety, the Registrar must enter in the Register:
(a) a description, or description and
photograph, of a plant of that variety; and
(b) the name of the variety and any
proposed synonym; and
(c) the name of the grantee; and
(d) the name and address of the
breeder; and
(e) the address for the service of
documents on the grantee for the purposes of this Act as shown on the
application for the right; and
(f) the day on which the right is
granted; and
(g) such other particulars relating to
the granting as the Registrar considers appropriate.
(2) When the Secretary makes a declaration
that a variety (the derived variety) is essentially derived from
another variety (the initial variety), the Registrar must enter
in the Register both in respect of the derived variety and the initial variety:
(a) the fact that the declaration has
been made; and
(b) the day on which the declaration
was made.
47
Notice of grant of PBR
(1) The Secretary must, as soon as possible
after granting PBR to a person, give public notice of the grant in the Plant
Varieties Journal.
(2) The Secretary must, as soon as possible
after the making of a declaration that a plant variety is an essentially
derived variety of another plant variety, give public notice of the making of
the declaration in the Plant Varieties Journal.
48
Effect of grant of PBR
(1) If a person is granted PBR in a plant
variety:
(a) any other person who was entitled
to make, but had not made, application for the right in the variety:
(i) ceases to be entitled
to make such application; and
(ii) is not entitled to any
interest in the right; and
(b) any other person who had made
application for the right in the variety:
(i) ceases to be entitled
to have his or her application considered or further considered; and
(ii) is not entitled to any
interest in the right.
(2) Subsection (1)
does not prevent a person:
(a) from applying for a revocation of
the rights under section 50; or
(b) from instituting proceedings
before a court or the AAT in relation to the right; or
(c) from requesting the Secretary to
make a declaration under section 40 that the plant variety in which the
right was granted is essentially derived from another plant variety in which
the person holds PBR.
(3) If:
(a) PBR in a particular plant variety
is granted to a person; and
(b) another person (the eligible
person) was entitled, at law or equity, to an assignment of the right
to make an application for the PBR;
the eligible person is entitled to an assignment of the
PBR.
49 PBR
may be subject to conditions
(1) The Minister may, if the Minister thinks
it necessary, in the public interest, refer to the Plant Breeder’s Rights
Advisory Committee the question whether a grant of PBR, whether proposed or
made, should be subject to conditions.
(2) The Minister may, having regard to the
views of the Plant Breeder’s Rights Advisory Committee on a matter referred
under subsection (1), impose such conditions on PBR that is to be granted
or that has been granted as the Minister considers appropriate.
(3) If the Minister imposes conditions on
PBR:
(a) the Secretary must give public
notice of those conditions and give the grantee a copy of the instrument
setting them out; and
(b) the
Registrar must enter details of those conditions in the Register.
Note: A decision under this section by the Minister
to make a grant subject to conditions is reviewable by the AAT under section 77.
Division 2—Revocation of Plant Breeder’s Right or declaration of
essential derivation
50
Revocation of PBR
(1) The Secretary must revoke PBR in a plant
variety or a declaration that a plant variety is essentially derived from
another plant variety if:
(a) the Secretary becomes satisfied
that facts existed that, if known before the grant of that right or the making
of that declaration, would have resulted in the refusal to grant that right or
make that declaration; or
(b) the grantee has failed to pay a
fee payable in respect of that right or of that declaration within 30 days
after having been given notice that the fee has become payable.
(2) The Secretary may revoke PBR in a plant
variety if:
(a) the Secretary is satisfied that a
person to whom that right has been assigned or transmitted has failed to comply
with section 21; or
(aa) the Secretary is satisfied that
the grantee, without reasonable excuse, has failed to comply with the
requirements of a notice under section 37; or
(b) the Secretary is satisfied that
the grantee has failed to comply with a condition imposed under section 49.
(3) If the Secretary revokes PBR in a plant
variety or a declaration that a plant variety is essentially derived from
another plant variety, the Secretary must, within 7 days after the decision to
revoke was taken, by notice given to the grantee of the right that has been
revoked or of the right that is affected by the giving of the declaration of
essential derivation, tell that grantee of the decision and set out the reasons
for the revocation.
(4) The Secretary must not revoke PBR under
this section unless:
(a) the Secretary has given the
grantee, or any person to whom the Secretary believes that right has been
assigned or transmitted, particulars of the grounds of the proposed revocation;
and
(b) the grantee or that other person
has had 30 days after being given those particulars to make a written statement
to the Secretary in relation to the proposed revocation.
(5) The Secretary must not under this
section, revoke a declaration that a plant variety is essentially derived from
another plant variety (the initial variety) unless:
(a) the Secretary has given the
grantee of PBR in the initial variety, or any person to whom the Secretary
believes that that PBR has been assigned or transmitted, particulars of the
grounds of the proposed revocation of that declaration of essential derivation;
and
(b) the grantee or that other person
has had 30 days after being given those particulars to make a written statement
to the Secretary in relation to the proposed revocation.
(6) The
revocation of PBR in a plant variety or of a declaration that a plant variety
is essentially derived from another plant variety takes effect:
(a) if no application for review of
the revocation is made to the AAT—at the end of the period within which such an
application might be made; or
(b) if such an application is made—at
the time when the application is withdrawn, or finally determined, whether by
the Tribunal or by a court.
(7) Nothing in this section affects the power
of the Court under subsection 44A(2) of the AAT Act.
(8) A person whose interests are affected by
the grant of PBR in a plant variety may apply to the Secretary, in writing, for
the revocation of the right.
(9) A person whose interests are affected by
the making of a declaration that a plant variety is essentially derived from
another plant variety may apply to the Secretary, in writing, for a revocation
of that declaration.
(9A) An application under subsection (8) or
(9) is of no effect unless it is accompanied by the prescribed fee.
(10) If the Secretary decides not to revoke PBR
in a plant variety in accordance with an application under subsection (8)
or not to revoke a declaration of essential derivation in accordance with subsection (9),
the Secretary must, within 7 days of making that decision, by notice in writing
to the person who applied for the revocation, tell the person of the decision
and set out the reasons for the decision.
Note: A decision under this section to revoke, or
refuse to revoke, PBR or a declaration of essential derivation is reviewable by
the AAT under section 77.
51
Entry of particulars of revocation
(1) If:
(a) PBR in a plant variety is revoked
in accordance with section 50; or
(b) the Secretary is served with a
copy of an order of a court given under section 55 revoking that right;
the Secretary must:
(c) enter particulars of the
revocation in the Register; and
(d) give public notice of the
revocation.
(2) If the holder of PBR in a plant variety
fails to pay the prescribed annual fee for the renewal of the right by the last
day for payment of that fee, the holder is taken to have surrendered the right.
(3) The Secretary must:
(a) enter particulars of the surrender
in the Register; and
(b) give public notice of the
surrender.
52
Surrender of PBR
The holder of PBR in a plant variety
may, at any time, by written notice to the Secretary, offer to surrender that
right.
Part 5—Enforcement of Plant Breeder’s Right
53
Infringement of PBR
(1) Subject to sections 16, 17, 18, 19
and 23, PBR in a plant variety is infringed by:
(a) a person doing, without, or
otherwise than in accordance with, authorisation from the grantee of the right,
an act referred to in a paragraph of section 11 in respect of the variety
or of a dependent variety; or
(b) a person claiming, without, or
otherwise than in accordance with, authorisation from the grantee of that
right, the right to do an act referred to in a paragraph of section 11 in
respect of that variety or of a dependent variety; or
(c) a person using a name of the
variety that is entered in the Register in relation to:
(i) any other plant
variety of the same plant class; or
(ii) a plant of any other
variety of the same plant class.
(1A) To avoid doubt, an infringement of PBR in a
plant variety under paragraph (1)(c) can include using a synonym in
relation to the name of a plant variety, if that synonym is entered in the
Register under paragraph 46(1)(b).
(2) If a plant variety (the derived
variety) has been declared to be an essentially derived variety of
another plant variety (the initial variety), the reference in paragraphs (1)(a)
and (b) to authorisation from the grantee of the right means, in relation to
the derived variety, authorisation from both the grantee of PBR in the derived
variety and from the grantee of PBR in the initial variety.
(3) In this section, a reference to the
grantee of PBR in a plant variety includes a reference to a person who has, by
assignment or transmission, become the holder of that right.
54
Actions for infringement
(1) An action for infringement of PBR in a
plant variety may be begun in the Court only by the grantee.
(2) A defendant in an action for infringement
of PBR in a plant variety may apply, by way of counterclaim, for revocation of
that right on the ground that:
(a) the variety was not a new plant
variety; or
(b) facts exist that would have
resulted in the refusal of the grant of that right if they had been known to
the Secretary before the grant of that right.
(3) If, in an action for infringement of PBR
in a plant variety:
(a) the defendant applies, by way of
counterclaim, for the revocation of that right; and
(b) the Court is satisfied that a
ground for revocation of that right exists;
the Court may make an order revoking that right.
(4) If the Court revoked PBR in a plant
variety on the counterclaim of a defendant, the Court may order the defendant
to serve on the Registrar a copy of the order revoking that right.
55
Declarations as to non‑infringement
(1) A person who proposes to perform an act
described in a paragraph of section 11 in relation to the propagating
material of a plant variety may, by an action in the Court against the grantee
of PBR in a plant variety, apply for a declaration that the performance of that
act would not constitute an infringement of that right.
(2) A person may apply for a declaration
whether or not there has been an assertion of an infringement of PBR by the
grantee of that right.
(3) The Court must not make such a
declaration unless:
(a) the person proposing to perform
the act:
(i) has applied in writing
to the grantee of the PBR concerned for an admission that the proposed
performance of the act would not infringe that right; and
(ii) has given the grantee
full written particulars of the propagating material concerned; and
(iii) has undertaken to
repay all expenses reasonably incurred by the grantee in obtaining advice in
the declaration; and
(b) the grantee has refused or failed
to make such an admission.
(4) The costs of all parties in proceedings
for a declaration under this section are to be paid by the person seeking the
declaration unless the Court otherwise orders.
(5) The validity of a grant of PBR in a plant
variety is not to be called in question in proceedings for a declaration under
this section.
(6) The making of, or the refusal to make, a
declaration under this section does not imply that a grant of PBR in a plant
variety is, or is not, valid.
56
Jurisdiction of Court
(1) The Court has jurisdiction with respect
to matters in which actions may, under this Part, be begun in the Court.
(2) That jurisdiction is exclusive of the
jurisdiction of all other courts, other than the jurisdiction of the High Court
under section 75 of the Constitution.
(3) The relief that the Court may grant in an
action or proceeding for infringement of PBR includes an injunction (subject to
such terms, if any, as the Court thinks fit) and, at the option of the
plaintiff, either damages or an account of profits.
(4) The regulations may make provision in
relation to the practice and procedure of the Court in actions under this Act,
including provision prescribing the time within which any action may be begun,
or any other act or thing may be done, and providing for the extension of any
such time.
(5) Subsection (4) does not limit the
power of the Judges of the Court or a majority of them to make rules of Court
under section 59 of the Federal Court of Australia Act 1976 that
are consistent with the regulations referred to in that subsection.
57
Innocent infringement
(1) The Court may refuse to award damages, or
to make an order for an account of profits, against a person in an action for
infringement of PBR in a plant variety, if the person satisfies the Court that,
at the time of the infringement, the person was not aware of, and had no
reasonable grounds for suspecting, the existence of that right.
(2) If the propagating material of plants of
the plant variety, labelled so as to indicate that PBR is held in the variety
in Australia, has been sold to a substantial extent before the date of the
infringement, the person against whom the action for infringement is brought is
taken to have been aware of the existence of PBR in the variety, unless the
contrary is established.
Part 6—Administration
58
Registrar of Plant Breeder’s Rights
(1) There is established by this section a
Registrar of Plant Breeder’s Rights.
(2) The office of the Registrar of Plant
Breeder’s Rights is an office in the Department.
(3) The Registrar has the functions and
powers:
(a) that are conferred on the
Registrar by this Act or by the regulations; or
(b) that are delegated to the
Registrar by the Secretary under section 59.
59
Delegation
Delegation of Minister’s statutory powers and functions
(1) The Minister may, by signed instrument,
delegate to the Registrar, or to an SES employee, or acting SES employee, in
the Department, any of the powers or functions of the Minister under this Act
or the regulations.
Delegation of Secretary’s statutory powers and
functions
(2) The Secretary may, by signed instrument,
delegate to the Registrar, or to an SES employee, or acting SES employee, in
the Department, any of the powers or functions of the Secretary under this Act
or the regulations.
Delegation of Registrar’s statutory powers and
functions
(3) The Registrar may, by signed instrument,
delegate to a prescribed employee, or employees in a prescribed class, any of the
powers or functions of the Registrar under this Act or the regulations.
Subdelegation of delegated powers and functions
(4) A person to whom a power or function
under this Act or the regulations has been delegated by the Minister or the
Secretary under subsection (1) or (2) may, by signed instrument, delegate
the power or function to a prescribed employee, or employees in a prescribed
class.
(5) A power or function that is exercised or
performed by an employee under a delegation under subsection (4) is taken,
for the purposes of this Act and the regulations, to have been exercised or
performed by the person who originally delegated the corresponding power or
function under subsection (1) or (2).
Requirement to act under direction or supervision
(6) If required by an instrument under subsection (3)
or (4) delegating a power or function to an employee, the employee must
exercise the power or perform the function under the direction or supervision
of:
(a) the person who delegated the power
or function to the employee; or
(b) another employee specified in the
instrument.
This subsection applies whether the instrument identifies
the employee specifically or by reference to a class.
Definition
(7) In subsections (3), (4), (5) and
(6):
employee means a person who is engaged under
the Public Service Act 1999 or otherwise for or on behalf of the
Commonwealth and whose duties involve providing assistance to the Registrar.
60
Certain persons not to acquire PBR
(1) A person must not apply for, or otherwise
acquire, except than by will or by operation of law, PBR in a plant variety or
an interest in such right if the person has during the 12 months before the
application, held, or performed the duties of:
(a) the office of Secretary; or
(b) the office of Registrar of Plant
Breeder’s Rights; or
(c) an office in the Department the
duties of which involve providing assistance to the Registrar.
Penalty: 60 penalty units.
(2) A grant of PBR applied for in
contravention of subsection (1) or an acquisition of PBR in contravention
of that subsection is void.
61
Register of Plant Varieties
(1) The Registrar must keep a register, to be
known as the Register of Plant Varieties, at a place approved by the Secretary.
(1A) The Registrar must maintain, for the
purposes of this Act, a list of all plant classes to be known as the
Registrar’s List of Plant Classes.
(1B) In maintaining that list the Registrar
must, for so long as the Union maintains the document presently known as the
List of Classes for Variety Denomination Purposes, have regard to that list and
to any variations to that list as so maintained.
(1C) The list maintained by the Registrar must
be kept as a part of the Register.
(2) In order to foster public access to the
information contained in the Register, the Registrar may disseminate that
information on the Internet or in such other manner as the Registrar considers
most likely to enhance its accessibility.
62
Inspection of Register
(1) A person may inspect the Register at any
reasonable time.
(2) A person is entitled, on payment of such
fee (if any) as is prescribed, to be given a copy of an entry in the Register.
(3) For the purposes of subsection (2),
a reference to an entry in the Register does not include a reference to the
Registrar’s List of Plant Classes or to any part of that list.
Part 7—Plant Breeder’s Rights Advisory Committee
63
Establishment of Advisory Committee
(1) There is established by this section a
Committee by the name of the Plant Breeder’s Rights Advisory Committee.
(2) The functions of the Advisory Committee
are:
(a) at the request of the Minister, to
advise the Minister on the desirability of declaring:
(i) in regulations made
for the purpose of subsection 17(2)—that subsection 17(1) does not apply to a
particular taxon; or
(ii) in regulations made
for the purpose of subsection 22(3)—that the duration of PBR in a particular
taxon will be longer than provided in subsection 22(2); or
(iii) in regulations made
for the purpose of subsection 42(1)—that a particular taxon is a taxon to which
this Act does not apply; and
(aa) at the request of the Minister, to
advise the Minister on the question of whether an existing, or proposed, grant
of PBR should be subject to conditions; and
(b) to advise the Registrar on such
technical matters arising under this Act, and such other matters relating to
the administration of this Act, as the Registrar refers to the Advisory
Committee.
64
Membership of Advisory Committee
(1) The Advisory Committee consists of:
(a) the Registrar; and
(b) 2 members who, in the opinion of
the Minister, are appropriate persons to represent breeders, and likely
breeders, of new plant varieties; and
(c) one member who, in the opinion of
the Minister, is an appropriate person to represent users, and likely users, of
new plant varieties; and
(d) one member who, in the opinion of
the Minister, is an appropriate person to represent the interests of consumers,
and likely consumers, of new plant varieties or of the products of new plant
varieties; and
(e) one member who will represent the
conservation interests in relation to new plant varieties and the potential
impacts of new plant varieties; and
(f) one member who will represent
indigenous Australian interests in relation to new plant varieties and the source,
use and impacts of new plant varieties; and
(g) 2 other members who, in the
opinion of the Minister, possess qualifications or experience that are
appropriate for a member of the Advisory Committee.
(2) The members, other than the Registrar,
must be appointed by the Minister.
(3) The members, other than the Registrar,
hold office as part‑time members.
(4) Each member, other than the Registrar,
holds office for the period, not exceeding 3 years, that is specified in the
instrument of appointment, but is eligible for re‑appointment.
(5) The Minister may terminate the
appointment of a member, other than the Registrar, for misbehaviour or for
physical or mental incapacity.
(6) The Minister must terminate the
appointment of a member, other than the Registrar, if the member:
(a) becomes bankrupt, applies to take
the benefit of any law for the relief of bankrupt or insolvent debtors,
compounds with his or her creditors or makes an assignment of his or her
remuneration for their benefit; or
(b) fails, without reasonable excuse,
to disclose any interest in a matter required to be disclosed under section 66.
(7) If a person’s appointment as a member is
terminated under subsection (6), the Minister must give the person a
written notice informing the person of the termination and setting out the
reasons for the termination.
(8) A member, other than the Registrar, may
resign his or her office by writing signed by the member and delivered to the
Minister.
65
Remuneration and allowances
(1) The members referred to in paragraphs
64(1)(b), (c), (d), (e), (f) and (g) must be paid:
(a) such remuneration as is determined
by the Remuneration Tribunal; and
(b) such allowances as are prescribed.
(2) Subsection (1) has effect subject to
the Remuneration Tribunal Act 1973.
66
Disclosure of interests
(1) A member who has a direct or indirect
pecuniary interest in a matter being considered at a meeting of the Advisory
Committee must, as soon as possible after the relevant facts have come to the
member’s knowledge, disclose the nature of the interest at the meeting.
(2) A disclosure must:
(a) be recorded in the minutes of the
meeting of the Advisory Committee; and
(b) be made known in any advice given
by the Committee in relation to that matter.
67 Meetings
(1) The Registrar may convene such meetings
of the Advisory Committee as are necessary for the purposes of the performance
of the functions of the Advisory Committee.
(2) At a meeting of the Advisory Committee, 5
members constitute a quorum.
(3) The Registrar presides at a meeting of
the Advisory Committee at which the Registrar is present.
(4) If the Registrar is not present, the
members present must elect one of their number to preside at the meeting.
(5) Subject to subsection (2), the Advisory
Committee may determine the procedure to be followed at a meeting of the
Committee.
Part 8—Miscellaneous
68
Public notices
(1) The Secretary must issue a journal, to be
called the Plant Varieties Journal, at least 4 times each year.
(2) Any public notice that the Secretary is
required to make under this Act must be published in the Journal.
(3) Public notice of any matter additional to
the matters referred to in subsection (2) that the Secretary considers it
necessary or desirable to publicise may also be published in the Journal.
(4) If the Secretary considers it desirable
to give additional public notice of matters by publishing notices of those
matters in a periodical other than the Journal, the Secretary may arrange for,
or consent to, the giving of additional public notice of those matters in the
periodical.
69
Notices inviting submissions in respect of certain regulations
(1) Regulations must not be made for the
purposes of subsection 17(2), 22(3) or 42(1) unless, before the making of the
regulations and before the Minister seeks any advice from the Advisory
Committee concerning those regulations:
(a) the Minister has, in accordance
with section 68, given public notice of the Minister’s intention to make a
regulation for the purposes of that subsection in relation to a particular
taxon that is specified in the notice; and
(b) the notice has given a broad
indication of the objectives of the intended regulations and invited persons to
make submissions to the Minister concerning it within a period of 30 days after
the publication of the notice.
(2) If the Minister receives, in accordance
with an invitation in a public notice under subsection (1), a submission
concerning an intended regulation, the Minister must have regard to the submission
so made.
(3) If the Minister seeks advice of the
Advisory Committee concerning an intended regulation, the Minister may comply
with subsection (2):
(a) by providing to the Committee, at
the time of requesting the advice of that Committee, a copy of all submissions
received; and
(b) requesting the Advisory Committee
to have regard to those submissions in preparing its advice to the Minister.
70
Genetic resource centres
(1) If, in the opinion of the Secretary, a
place is suitable for the storage and maintenance of germplasm material, the
Secretary may, by notice in writing, declare that place to be a genetic
resource centre for the purposes of this Act.
(2) The person in charge of a genetic
resource centre may do all things necessary to maintain the viability of
propagating material stored at that centre.
71 The
herbarium
If, in the opinion of the Secretary, an
organisation has facilities suitable for the storage of plant specimens, the
Secretary may, by notice in writing, declare the organisation to be the
herbarium for the purposes of this Act.
72
Agents may act in matters relating to PBR
Subject to any other law of the
Commonwealth, including the High Court Rules and the Federal Court Rules, an
application, a written submission or any other document may be prepared or
lodged, and any business may be transacted, for the purposes of this Act, by
one person on behalf of another person.
73
Service of documents
If the Secretary or the Registrar is
required by this Act to give a written notice or other document to an applicant
for, or a grantee of, PBR, that notice or other document may be given by being
posted by pre‑paid post as a letter addressed to the applicant or the
grantee at the address for service shown on the application or entered in the
Register, as the case requires.
74
Infringement offences
(1) A person must not, in relation to
propagating material of a plant variety in which PBR has been granted, do any
of the acts referred to in a paragraph of section 11 if such an act would,
under section 53, infringe the PBR in the variety.
Penalty: 500 penalty units.
(1A) In subsection (1), strict liability
applies to the physical element of circumstance, that the infringement of the
PBR would be under section 53.
Note: For strict liability, see section 6.1 of
the Criminal Code.
(2) The fact that an action for infringement
has been brought against a person under section 54 in respect of a
particular act does not prevent a prosecution under this section in respect of
the same act.
75 Offences
other than infringement offences
(1) A person must not make a false statement
in an application or other document given to the Secretary or the Registrar for
the purposes of this Act.
Penalty: 6 months imprisonment.
(2) A person who is not the grantee of PBR in
a plant variety must not represent to another person that he or she is the
grantee of PBR in that variety.
Penalty: 60 penalty units.
(3) A person must not represent to another
person that PBR granted to that first‑mentioned person in a plant variety
extends to cover another plant variety that is not:
(a) a dependent variety of the first‑mentioned
variety; or
(b) a variety that has been declared
to be an essentially derived variety of the first‑mentioned variety.
Penalty: 60 penalty units.
(4) A person
must not represent to another person that a plant of a variety in which PBR has
not been granted is a plant of a variety in which PBR has been granted.
Penalty: 60 penalty units.
76
Conduct by directors, servants and agents
(1) If, in proceedings for an offence against
section 74 or 75, it is necessary to establish the state of mind of a body
corporate in relation to particular conduct, it is sufficient to show:
(a) that the conduct was engaged in by
a director, servant or agent of the body corporate, within the scope of his or
her actual or apparent authority; and
(b) that the director, servant or
agent had the state of mind.
(2) Any conduct engaged in on behalf of a
body corporate by a director, servant or agent of the body corporate within the
scope of his or her actual or apparent authority is to be taken, for the
purposes of a prosecution for an offence against section 74 or 75, to have
been engaged in also by the body corporate unless the body corporate
establishes that the body corporate took reasonable precautions and exercised
due diligence to avoid the conduct.
(3) If, in proceedings for an offence against
section 74 or 75, it is necessary to establish the state of mind of a
person other than a body corporate in relation to a particular conduct, it is
sufficient to show:
(a) that the conduct was engaged in by
a servant or agent of the person, within the scope of his or her actual or
apparent authority; and
(b) that the servant or agent had the
state of mind.
(4) Any conduct engaged in on behalf of a
person other than a body corporate by a servant or agent of the person within
the scope of his or her actual or apparent authority is to be taken, for the
purposes of a prosecution for an offence against section 74 or 75, to have
been engaged in also by the first‑mentioned person unless the first‑mentioned
person establishes that the first‑mentioned person took reasonable
precautions and exercised due diligence to avoid the conduct.
(5) If:
(a) a person other than a body corporate
is convicted of an offence; and
(b) the person would not have been
convicted for the offence if subsections (3) and (4) had not been enacted;
the person is not liable to be punished by imprisonment
for that offence.
(6) A reference in subsection (1) or (3)
to the state of mind of a person includes a reference to:
(a) the knowledge, intention, opinion,
belief or purpose of the person; and
(b) the person’s reasons for the
intention, opinion, belief or purpose.
(7) A reference in this section to a director
of a body corporate includes a reference to a constituent member of a body
corporate incorporated for a public purpose by a law of the Commonwealth, of a
State or of a Territory.
(8) A reference in this section to engaging
in conduct includes a reference to failing or refusing to engage in conduct.
(9) A reference in this section to an offence
against section 74 or 75 includes a reference to an offence against
section 5, 6, 7 or 7A, or subsection 86(1), of the Crimes Act 1914,
that relates to section 74 or 75 of this Act.
76A
Doing act when PBR office reopens after end of period otherwise provided for
doing act
(1) If the last day of a period provided by
this Act (except this section) or the regulations for doing an act is a day
when the PBR office or a PBR sub‑office is not open for business, the act
may be done in prescribed circumstances on the next day when the office or sub‑office
is open for business.
(2) For the purposes of this section, the PBR
office or a PBR sub‑office is taken not to be open for business on a day:
(a) declared by regulations to be a
day on which the office or sub‑office is not open for business; or
(b) declared, by a prescribed person
in writing published in the prescribed way, to be a day on which the office or
sub‑office is not open for business.
Declarations
(3) A declaration mentioned in paragraph (2)(a)
or (b) may identify the day by reference to its being declared a public holiday
by or under a law of a State or Territory. This does not limit the way the declaration
may identify the day.
(4) A declaration mentioned in paragraph (2)(b):
(a) may be made before, on or after
the day; and
(b) is not a legislative instrument.
Relationship with other law
(5) This section has effect despite the rest
of this Act.
(6) Subsection 36(2) of the Acts
Interpretation Act 1901 does not apply in relation to the act mentioned in subsection (1)
of this section.
Exception for prescribed act
(7) This section does not apply to a
prescribed act.
Note: Subsection 36(2) of the Acts Interpretation
Act 1901 is relevant to a prescribed act.
77
Applications for review
(1) Applications may be made to the AAT for
review of:
(a) a decision by the Minister under
subsection 49(2); or
(b) a decision by the Secretary:
(i) under subsection 19(7)
to exercise a power under subsection 19(3); or
(ii) under subsection 19(3)
to license, or refuse to license, a person who applied to be so licensed in
response to an invitation under paragraph 19(8)(c); or
(iii) under subsection
19(10) to make propagating material available; or
(iv) under subsection 19(11)
to certify, or to refuse to certify, a plant variety; or
(v) under section 30
to accept or reject an application; or
(vi) under section 31
to vary, or refuse to vary, an application; or
(vii) under subsection 34(1)
refusing to extend the period for giving a detailed description; or
(viii) under section 37
to require a test growing; or
(viiia) under paragraph
37(2B)(b) not to proceed further with an application, objection or request for revocation;
or
(ix) under subsection 38(4)
to the effect that the Secretary is satisfied of the matters referred to in
that subsection; or
(x) under subsection 38(5)
to the effect that the Secretary is satisfied of the matters referred to in
that subsection; or
(xi) under subsection 39(2)
to issue a notice to an applicant; or
(xii) under paragraph
40(8)(b) refusing to extend the period for rebutting the prima facie
case of essential derivation; or
(xiii) under section 40
in respect of an application for a declaration of essential derivation; or
(xiv) under section 41 to
require a test growing; or
(xv) under section 44 to
grant, or refuse to grant, PBR in a plant variety; or
(xvi) under section 50 to
revoke, or not to revoke, PBR in a plant variety or a declaration that a plant
variety is essentially derived from another plant variety; or
(c) a decision of the Registrar under
section 21 to amend, or refuse to amend, the Register.
(2) The AAT does not have power under
subsection 29(7) of the AAT Act to extend the time for making an application to
that Tribunal for a review of a decision referred to in subsection (1).
(3) The Secretary must give public notice of:
(a) any application made under subsection (1);
and
(b) any decision of the AAT on such an
application; and
(c) any decision of a court in
relation to, or arising out of:
(i) such an application;
or
(ii) a decision of the AAT
on such an application.
(4) In this
section:
decision has the same meaning as in the AAT
Act.
78
Repeal
The Plant Variety Rights Act 1987
is repealed.
79
Compensation for acquisition of property
(1) If, apart from this section, the
operation of this Act would result in an acquisition of property from a person
otherwise than on just terms, the Commonwealth is to pay the person such
reasonable amount of compensation as is agreed on between the person and the
Commonwealth, or failing agreement, as is determined by a court of competent
jurisdiction.
(2) Any damages or compensation recovered, or
other remedy given, in proceedings that are begun otherwise than under this
section must be taken into account in assessing compensation payable in
proceedings begun under this section and arising out of the same event or
circumstance.
(3) In this section:
acquisition of property has the same meaning
as in paragraph 51(xxxi) of the Constitution.
just terms has the same meaning as in
paragraph 51(xxxi) of the Constitution.
80
Regulations
(1) The Governor‑General may make
regulations prescribing all matters:
(a) required or permitted by this Act
to be prescribed; or
(b) necessary or convenient to be
prescribed for carrying out or giving effect to this Act.
(2) Without limiting subsection (1),
that subsection includes the power to make regulations:
(a) prescribing
fees including:
(i) fees payable in
respect of the making of applications for PBR, the examination of those
applications and the issue of certificates in respect of the grant of PBR; and
(ii) fees payable in
respect of the making of applications for declarations of essential derivation,
the examination of those applications and the making of those declarations; and
(iii) fees payable by
grantees of PBR at specified intervals or on specified dates; and
(iv) fees payable in respect
of costs incurred by the Secretary in respect of the conduct or supervision of
the test growing of plants;
and, if the matter is not dealt
with by another provision of this Act, specifying the time at which, or the
circumstances in which, such fees are to be paid and the manner of payment of
such fees; and
(b) making provision in relation to
the refund, in specified circumstances, of the whole or part of a fee paid
under this Act; and
(c) making provision in relation to
the remission of, or the exemption of specified classes of persons from the
payment of, the whole or a part of a fee; and
(d) making provision in relation to
the amendment of an entry in the Register to correct a clerical error or an
obvious mistake; and
(e) making such transitional and
saving provisions as are necessary or convenient as a result of the repeal of
the Plant Variety Rights Act 1987 and the enactment of this Act.
Part 9—Transitional
81
Definitions
In this Part:
commencing day means the day on which, in
accordance with section 2, this Act commences.
old Act means the Plant Variety Rights Act
1987.
82
Plant variety rights under old Act to be treated as PBR under this Act
(1) If:
(a) a person was granted plant variety
rights in respect of a plant variety under the old Act; and
(b) those rights were still in force
immediately before the commencing day;
then, subject to the regulations, those rights have
effect, despite the repeal of the old Act, on and after that day, as if:
(c) this Act had been in force at the
time when those rights were granted; and
(d) they had been granted at that time
as PBR in that variety.
(2) Despite subsection (1), rights
treated as if they had been granted as PBR under this Act continue in force for
so long only as they would have continued in force if the old Act had not been
repealed.
(3) Nothing in this section gives the holder
of rights treated as PBR in a particular plant variety under this Act the right
to claim PBR in respect of plant varieties that would, under this Act, be
dependent plant varieties in relation to that particular plant variety.
(4) Nothing in this section gives the holder
of rights treated as PBR in a particular plant variety under this Act the right
to seek a declaration that another plant variety is an essentially derived
variety of the particular plant variety unless PBR in that other plant variety
was given only on or after the commencing day.
83
Applications for plant variety rights lodged and criminal proceedings begun
before commencing day
(1) If, before the commencing day:
(a) a person has made application for
plant variety rights under the old Act; but
(b) the application has not been
finally disposed of under that Act;
the provisions of the old Act are taken to continue in
force, for the purpose of dealing with the application, and any objection that
has been made before that day, or is made after that day, in relation to the
application.
(2) If before the commencing day, criminal
proceedings had been begun under the old Act but those proceedings had not been
finally determined before that day, the provisions of the old Act are taken to
continue in force, for the purposes of those proceedings.
84
Other applications and proceedings under old Act
(1) Subject to the regulations, this Act
applies, on and after the commencing day, to any application, request, action
or proceeding made or started under the old Act and not finally dealt with or
determined under that Act before that day as if the application, request,
action or proceeding had been made or started under a corresponding provision
of this Act.
(2) Subsection (1) does not apply in
relation to an application for plant variety rights, or to criminal
proceedings, covered by section 83.
85
Transitional arrangements for membership and functions of Advisory Committee
(1) The persons who, under the old Act, were
members of the Plant Variety Rights Advisory Committee established under
section 44 of that Act are to be taken, with effect from the commencing
day, to be members of the Plant Breeder’s Rights Advisory Committee established
by section 63 of this Act.
(2) Those members who were appointed by the
Minister under section 45 of the old Act continue to hold office as if
they had been appointed by the Minister under section 64 of the new Act on
the same terms and conditions for the balance of the term of their respective
appointments.
(3) Any advice given to the Minister or to
the Secretary by the Plant Variety Rights Advisory Committee has effect, on and
after the commencing day, as if it had been given by the Plant Breeder’s Rights
Advisory Committee.
86
Register of Plant Varieties
On and after the commencing day, the
Register of Plant Varieties under the old Act is taken to form part of the
Register of Plant Varieties under this Act.
Schedule 1
subsection 3(1)
(definition of Convention)
CONVENTION
International
Convention for the Protection
of New Varieties of Plants of December 2, 1961,
as revised at Geneva on November 10, 1972,
on October 23, 1978, and on March 19, 1991
List
of Articles
Chapter I: Definitions
Article 1: Definitions
Chapter II: General Obligations
of the Contracting Parties
Article 2: Basic
Obligation of the Contracting Parties
Article 3: Genera and Species to be Protected
Article 4: National Treatment
Chapter III: Conditions for the
Grant of the Breeder’s Right
Article 5: Conditions
of Protection
Article 6: Novelty
Article 7: Distinctness
Article 8: Uniformity
Article 9: Stability
Chapter IV: Application for the
Grant of the Breeder’s Right
Article 10: Filing of
Applications
Article 11: Right of Priority
Article 12: Examination of the Application
Article 13: Provisional Protection
Chapter V: The Rights of the Breeder
Article 14: Scope of
the Breeder’s Right
Article 15: Exceptions to the Breeder’s Right
Article 16: Exhaustion of the Breeder’s Right
Article 17: Restrictions on the Exercise of
the Breeder’s Right
Article 18: Measures Regulating Commerce
Article 19: Duration of the Breeder’s Right
Chapter VI: Variety Denomination
Article 20: Variety
Denomination
Chapter VII: Nullity and
Cancellation of the Breeder’s Right
Article 21: Nullity
of the Breeder’s Right
Article 22: Cancellation of the Breeder’s
Right
Chapter VIII:The
Union
Article 23: Members
Article 24: Legal Status and Seat
Article 25: Organs
Article 26: The Council
Article 27: The Office of the Union
Article 28: Languages
Article 29: Finances
Chapter IX: Implementation
of the Convention; Other Agreements
Article 30: Implementation
of the Convention
Article
31: Relations Between Contracting Parties and States Bound by Earlier
Acts
Article 32: Special Agreements
Chapter X: Final Provisions
Article 33: Signature
Article 34: Ratification, Acceptance or
Approval; Accession
Article 35: Reservations
Article
36: Communications Concerning Legislation and the Genera and Species
Protected; Information to be Published
Article 37: Entry into Force; Closing of
Earlier Acts
Article 38: Revision of the Convention
Article 39: Denunciation
Article 40: Preservation of Existing Rights
Article 41: Original and Official Texts of the
Convention
Article 42: Depositary Functions
CHAPTER I
DEFINITIONS
Article
1
Definitions
For the purposes
of this Act:
(i) “this
Convention” means the present (1991) Act of the International Convention for
the Protection of New Varieties of Plants;
(ii) “Act
of 1961/1972” means the International Convention for the Protection of New
Varieties of Plants of December 2, 1961, as amended by the Additional Act of
November 10, 1972;
(iii) “Act
of 1978” means the Act of October 23, 1978, of the International Convention for
the Protection of New Varieties of Plants;
(iv) “breeder”
means
— the person
who bred, or discovered and developed, a variety,
— the person
who is the employer of the aforementioned person or who has commissioned the
latter’s work, where the laws of the relevant Contracting Party so provide, or
— the
successor in title of the first or second aforementioned person, as the case
may be;
(v) “breeder’s
right” means the right of the breeder provided for in this Convention;
(vi) “variety”
means a plant grouping within a single botanical taxon of the lowest known
rank, which grouping, irrespective of whether the conditions for the grant of a
breeder’s right are fully met, can be
— defined by
the expression of the characteristics resulting from a given genotype or
combination of genotypes,
—
distinguished from any other plant grouping by the expression of at least one
of the said characteristics and
— considered
as a unit with regard to its suitability for being propagated unchanged;
(vii) “Contracting
Party” means a State or an intergovernmental organization party to this
Convention;
(viii) “territory,”
in relation to a Contracting Party, means, where the Contracting Party is a
State, the territory of that State and, where the Contracting Party is an
intergovernmental organization, the territory in which the constituting treaty
of that intergovernmental organization applies;
(ix) “authority”
means the authority referred to in Article 30(1)(ii);
(x) “Union”
means the Union for the Protection of New Varieties of Plants founded by the
Act of 1961 and further mentioned in the Act of 1972, the Act of 1978 and in
this Convention;
(xi) “member
of the Union” means a State party to the Act of 1961/1972 or the Act of 1978,
or a Contracting Party.
CHAPTER II
GENERAL
OBLIGATIONS OF THE CONTRACTING PARTIES
Article
2
Basic
Obligation of the Contracting Parties
Each Contracting
Party shall grant and protect breeders’ rights.
Article
3
Genera
and Species to be Protected
(1) [States
already members of the Union] Each Contracting Party which is bound
by the Act of 1961/1972 or the Act of 1978 shall apply the provisions of this
Convention,
(i) at
the date on which it becomes bound by this Convention, to all plant genera and
species to which it applies, on the said date, the provisions of the Act of
1961/1972 or the Act of 1978 and,
(ii) at
the latest by the expiration of a period of five years after the said date, to
all plant genera and species.
(2) [New
members of the Union] Each Contracting Party which is not bound by
the Act of 1961/1972 or the Act of 1978 shall apply the provisions of this
Convention,
(i) at
the date on which it becomes bound by this Convention, to at least 15 plant
genera or species and,
(ii) at
the latest by the expiration of a period of 10 years from the said date, to all
plant genera and species.
Article
4
National
Treatment
(1) [Treatment]
Without prejudice to the rights specified in this Convention, nationals of a
Contracting Party as well as natural persons resident and legal entities having
their registered offices within the territory of a Contracting Party shall,
insofar as the grant and protection of breeders’ rights are concerned, enjoy
within the territory of each other Contracting Party the same treatment as is
accorded or may hereafter be accorded by the laws of each such other
Contracting Party to its own nationals, provided that the said nationals,
natural persons or legal entities comply with the conditions and formalities
imposed on the nationals of the said other Contracting Party.
(2) [“Nationals”]
For the purposes of the preceding paragraph, “nationals” means, where the
Contracting Party is a State, the nationals of that State and, where the
Contracting Party is an intergovernmental organization, the nationals of the
States which are members of that organization.
CHAPTER III
CONDITIONS
FOR THE GRANT OF THE BREEDER’S RIGHT
Article
5
Conditions
of Protection
(1) [Criteria
to be satisfied] The breeder’s right shall be granted where the variety is
(i) new,
(ii) distinct,
(iii) uniform
and
(iv) stable.
(2) [Other
conditions] The grant of the breeder’s right shall not be subject to any
further or different conditions, provided that the variety is designated by a
denomination in accordance with the provisions of Article 20, that the
applicant complies with the formalities provided for by the law of the
Contracting Party with whose authority the application has been filed and that
he pays the required fees.
Article
6
Novelty
(1) [Criteria]
The variety shall be deemed to be new if, at the date of filing of the
application for a breeder’s right, propagating or harvested material of the
variety has not been sold or otherwise disposed of to others, by or with the
consent of the breeder, for purposes of exploitation of the variety
(i) in
the territory of the Contracting Party in which the application has been filed
earlier than one year before that date and
(ii) in a
territory other than that of the Contracting Party in which the application has
been filed earlier than four years or, in the case of trees or of vines,
earlier than six years before the said date.
(2) [Varieties
of recent creation] Where a Contracting Party applies this Convention to a
plant genus or species to which it did not previously apply this Convention or
an earlier Act, it may consider a variety of recent creation existing at the
date of such extension of protection to satisfy the condition of novelty
defined in paragraph (1) even where the sale or disposal to others
described in that paragraph took place earlier than the time limits defined in
that paragraph.
(3) [“Territory”
in certain cases] For the purposes of paragraph (1), all the
Contracting Parties which are member States of one and the same
intergovernmental organization may act jointly, where the regulations of that
organization so require, to assimilate acts done on the territories of the
States members of that organization to acts done on their own territories and,
should they do so, shall notify the Secretary‑General accordingly.
Article
7
Distinctness
The variety shall be deemed to be
distinct if it is clearly distinguishable from any other variety whose
existence is a matter of common knowledge at the time of the filing of the
application. In particular, the filing of an application for the granting of a
breeder’s right or for the entering of another variety in an official register
of varieties, in any country, shall be deemed to render that other variety a
matter of common knowledge from the date of the application, provided that the
application leads to the granting of a breeder’s right or to the entering of
the said other variety in the official register of varieties, as the case may
be.
Article
8
Uniformity
The variety shall be deemed to be
uniform if, subject to the variation that may be expected from the particular
features of its propagation, it is sufficiently uniform in its relevant
characteristics.
Article
9
Stability
The variety shall be deemed to be
stable if its relevant characteristics remain unchanged after repeated
propagation or, in the case of a particular cycle of propagation, at the end of
each such cycle.
CHAPTER IV
APPLICATION FOR THE GRANT OF THE BREEDER’S RIGHT
Article
10
Filing
of Applications
(1) [Place
of first application] The breeder may choose the Contracting Party with
whose authority he wishes to file his first application for a breeder’s right.
(2) [Time
of subsequent applications] The breeder may apply to the authorities of
other Contracting Parties for the grant of breeders’ rights without waiting for
the grant to him of a breeder’s right by the authority of the Contracting Party
with which the first application was filed.
(3) [Independence
of protection] No Contracting Party shall refuse to grant a breeder’s right
or limit its duration on the ground that protection for the same variety has
not been applied for, has been refused or has expired in any other State or
intergovernmental organization.
Article
11
Right
of Priority
(1) [The
right; its period] Any breeder who has duly filed an application for the
protection of a variety in one of the Contracting Parties (the “first
application”) shall, for the purpose of filing an application for the grant of
a breeder’s right for the same variety with the authority of any other
Contracting Party (the “subsequent application”), enjoy a right of priority for
a period of 12 months. This period shall be computed from the date of filing of
the first application. The day of filing shall not be included in the latter
period.
(2) [Claiming
the right] In order to benefit from the right of priority, the breeder shall,
in the subsequent application, claim the priority of the first application. The
authority with which the subsequent application has been filed may require the
breeder to furnish, within a period of not less than three months from the
filing date of the subsequent application, a copy of the documents which
constitute the first application, certified to be a true copy by the authority
with which that application was filed, and samples or other evidence that the
variety which is the subject matter of both applications is the same.
(3) [Documents
and material] The breeder shall be allowed a period of two years after the
expiration of the period of priority or, where the first application is
rejected or withdrawn, an appropriate time after such rejection or withdrawal,
in which to furnish, to the authority of the Contracting Party with which he
has filed the subsequent application, any necessary information, document or
material required for the purpose of the examination under Article 12, as
required by the laws of that Contracting Party.
(4) [Events
occurring during the period] Events occurring within the period provided
for in paragraph (1), such as the filing of another application or the
publication or use of the variety that is the subject of the first application,
shall not constitute a ground for rejecting the subsequent application. Such
events shall also not give rise to any third‑party right.
Article
12
Examination
of the Application
Any
decision to grant a breeder’s right shall require an examination for compliance
with the conditions under Articles 5 to 9. In the course of the examination,
the authority may grow the variety or carry out other necessary tests, cause
the growing of the variety or the carrying out of other necessary tests, or
take into account the results of growing tests or other trials which have
already been carried out. For the purposes of examination, the authority may
require the breeder to furnish all the necessary information, documents or
material.
Article
13
Provisional
Protection
Each
Contracting Party shall provide measures designed to safeguard the interests of
the breeder during the period between the filing or the publication of the
application for the grant of a breeder’s right and the grant of that right.
Such measures shall have the effect that the holder of a breeder’s right shall
at least be entitled to equitable remuneration from any person who, during the
said period, has carried out acts which, once the right is granted, require the
breeder’s authorization as provided in Article 14. A Contracting Party may
provide that the said measures shall only take effect in relation to persons
whom the breeder has notified of the filing of the application.
CHAPTER V
THE RIGHTS OF THE BREEDER
Article 14
Scope of the Breeder’s Right
(1) [Acts
in respect of the propagating material] (a) Subject to Articles 15
and 16, the following acts in respect of the propagating material of the
protected variety shall require the authorization of the breeder:
(i) production
or reproduction (multiplication),
(ii) for
the purpose of propagation,
(iii) offering
for sale,
(iv) selling
or other marketing,
(v) exporting,
(vi) importing,
(vii) stocking
for any of the purposes mentioned in (i) to (vi), above.
(b) The
breeder may make his authorization subject to conditions and limitations.
(2) [Acts
in respect of the harvested material] Subject to Articles 15 and 16, the
acts referred to in items (i) to (vii) of paragraph (1)(a) in
respect of harvested material, including entire plants and parts of plants,
obtained through the unauthorized use of propagating material of the protected
variety shall require the authorization of the breeder, unless the breeder has
had reasonable opportunity to exercise his right in relation to the said
propagating material.
(3) [Acts
in respect of certain products] Each Contracting Party may provide that,
subject to Articles 15 and 16, the acts referred to in items (i) to (vii) of paragraph (1)(a)
in respect of products made directly from harvested material of the protected
variety falling within the provisions of paragraph (2) through the
unauthorized use of the said harvested material shall require the authorization
of the breeder, unless the breeder has had reasonable opportunity to exercise
his right in relation to the said harvested material.
(4) [Possible
additional acts] Each Contracting Party may provide that, subject to
Articles 15 and 16, acts other than those referred to in items (i) to (vii) of paragraph (1)(a)
shall also require the authorization of the breeder.
(5) [Essentially
derived and certain other varieties] (a) The provisions of paragraphs (1)
to (4) shall also apply in relation to
(i) varieties
which are essentially derived from the protected variety, where the protected
variety is not itself an essentially derived variety,
(ii) varieties
which are not clearly distinguishable in accordance with Article 7 from the
protected variety and
(iii) varieties
whose production requires the repeated use of the protected variety.
(b) For
the purposes of subparagraph (a)(i), a variety shall be deemed to
be essentially derived from another variety (“the initial variety”) when
(i) it is
predominantly derived from the initial variety, or from a variety that is
itself predominantly derived from the initial variety, while retaining the
expression of the essential characteristics that result from the genotype or
combination of genotypes of the initial variety,
(ii) it
is clearly distinguishable from the initial variety and
(iii) except
for the differences which result from the act of derivation, it conforms to the
initial variety in the expression of the essential characteristics that result
from the genotype or combination of genotypes of the initial variety.
(c) Essentially
derived varieties may be obtained for example by the selection of a natural or
induced mutant, or of a somaclonal variant, the selection of a variant
individual from plants of the initial variety, backcrossing, or transformation
by genetic engineering.
Article
15
Exceptions
to the Breeder’s Right
(1) [Compulsory
exceptions] The breeder’s right shall not extend to
(i) acts
done privately and for non‑commercial purposes,
(ii) acts
done for experimental purposes and
(iii) acts
done for the purpose of breeding other varieties, and, except where the
provisions of Article 14(5) apply, acts referred to in Article 14(1) to (4) in
respect of such other varieties.
(2) [Optional
exception] Notwithstanding Article 14, each Contracting Party may, within
reasonable limits and subject to the safeguarding of the legitimate interests
of the breeder, restrict the breeder’s right in relation to any variety in
order to permit farmers to use for propagating purposes, on their own holdings,
the product of the harvest which they have obtained by planting, on their own
holdings, the protected variety or a variety covered by Article 14(5)(a)(i)
or (ii).
Article
16
Exhaustion
of the Breeder’s Right
(1) [Exhaustion
of right] The breeder’s right shall not extend to acts concerning any
material of the protected variety, or of a variety covered by the provisions of
Article 14(5), which has been sold or otherwise marketed by the breeder or with
his consent in the territory of the Contracting Party concerned, or any
material derived from the said material, unless such acts
(i) involve
further propagation of the variety in question or
(ii) involve
an export of material of the variety, which enables the propagation of the
variety, into a country which does not protect varieties of the plant genus or
species to which the variety belongs, except where the exported material is for
final consumption purposes.
(2) [Meaning
of “material”] For the purposes of paragraph (1), “material” means, in
relation to a variety,
(i) propagating
material of any kind,
(ii) harvested
material, including entire plants and parts of plants, and
(iii) any
product made directly from the harvested material.
(3) [“Territory”
in certain cases] For the purposes of paragraph (1), all the
Contracting Parties which are member States of one and the same
intergovernmental organization may act jointly, where the regulations of that
organization so require, to assimilate acts done on the territories of the
States members of that organization to acts done on their own territories and,
should they do so, shall notify the Secretary‑General accordingly.
Article
17
Restrictions
on the Exercise of the Breeder’s Right
(1) [Public
interest] Except where expressly provided in this Convention, no
Contracting Party may restrict the free exercise of a breeder’s right for
reasons other than of public interest.
(2) [Equitable
remuneration] When any such restriction has the effect of authorizing a
third party to perform any act for which the breeder’s authorization is
required, the Contracting Party concerned shall take all measures necessary to
ensure that the breeder receives equitable remuneration.
Article
18
Measures
Regulating Commerce
The
breeder’s right shall be independent of any measure taken by a Contracting
Party to regulate within its territory the production, certification and
marketing of material of varieties or the importing or exporting of such
material. In any case, such measures shall not affect the application of the
provisions of this Convention.
Article 19
Duration
of the Breeder’s Right
(1) [Period
of protection] The breeder’s right shall be granted for a fixed period.
(2) [Minimum
period] The said period shall not be shorter than 20 years from the date of
the grant of the breeder’s right. For trees and vines, the said period shall
not be shorter than 25 years from the said date.
CHAPTER VI
VARIETY
DENOMINATION
Article
20
Variety
Denomination
(1) [Designation
of varieties by denominations; use of the denomination] (a) The
variety shall be designated by a denomination which will be its generic designation.
(b) Each
Contracting Party shall ensure that, subject to paragraph (4), no rights
in the designation registered as the denomination of the variety shall hamper
the free use of the denomination in connection with the variety, even after the
expiration of the breeder’s right.
(2) [Characteristics
of the denomination] The denomination must enable the variety to be
identified. It may not consist solely of figures except where this is an
established practice for designating varieties. It must not be liable to
mislead or to cause confusion concerning the characteristics, value or identity
of the variety or the identity of the breeder. In particular, it must be
different from every denomination which designates, in the territory of any
Contracting Party, an existing variety of the same plant species or of a
closely related species.
(3) [Registration
of the denomination] The denomination of the variety shall be submitted by
the breeder to the authority. If it is found that the denomination does not
satisfy the requirements of paragraph (2), the authority shall refuse to
register it and shall require the breeder to propose another denomination
within a prescribed period. The denomination shall be registered by the
authority at the same time as the breeder’s right is granted.
(4) [Prior
rights of third persons] Prior rights of third persons shall not be
affected. If, by reason of a prior right, the use of the denomination of a
variety is forbidden to a person who, in accordance with the provisions of paragraph (7),
is obliged to use it, the authority shall require the breeder to submit another
denomination for the variety.
(5) [Same
denomination in all Contracting Parties] A variety must be submitted to all
Contracting Parties under the same denomination. The authority of each
Contracting Party shall register the denomination so submitted, unless it
considers the denomination unsuitable within its territory. In the latter case,
it shall require the breeder to submit another denomination.
(6) [Information
among the authorities of Contracting Parties] The authority of a
Contracting Party shall ensure that the authorities of all the other
Contracting Parties are informed of matters concerning variety denominations,
in particular the submission, registration and cancellation of denominations.
Any authority may address its observations, if any, on the registration of a
denomination to the authority which communicated that denomination.
(7) [Obligation
to use the denomination] Any person who, within the territory of one of the
Contracting Parties, offers for sale or markets propagating material of a
variety protected within the said territory shall be obliged to use the
denomination of that variety, even after the expiration of the breeder’s right
in that variety, except where, in accordance with the provisions of paragraph (4),
prior rights prevent such use.
(8) [Indications
used in association with denominations] When a variety is offered for sale
or marketed, it shall be permitted to associate a trademark, trade name or
other similar indication with a registered variety denomination. If such an
indication is so associated, the denomination must nevertheless be easily
recognizable.
CHAPTER VII
NULLITY
AND CANCELLATION OF THE BREEDER’S RIGHT
Article
21
Nullity
of the Breeder’s Right
(1) [Reasons
of nullity] Each Contracting Party shall declare a breeder’s right granted
by it null and void when it is established
(i) that
the conditions laid down in Articles 6 or 7 were not complied with at the time
of the grant of the breeder’s right,
(ii) that,
where the grant of the breeder’s right has been essentially based upon
information and documents furnished by the breeder, the conditions laid down in
Articles 8 or 9 were not complied with at the time of the grant of the breeder’s
right, or
(iii) that
the breeder’s right has been granted to a person who is not entitled to it,
unless it is transferred to the person who is so entitled.
(2) [Exclusion
of other reasons] No breeder’s right shall be declared null and void for
reasons other than those referred to in paragraph (1).
Article
22
Cancellation
of the Breeder’s Right
(1) [Reasons
for cancellation] (a) Each Contracting Party may cancel a breeder’s
right granted by it if it is established that the conditions laid down in Articles
8 or 9 are no longer fulfilled.
(b) Furthermore,
each Contracting Party may cancel a breeder’s right granted by it if, after
being requested to do so and within a prescribed period,
(i) the
breeder does not provide the authority with the information, documents or
material deemed necessary for verifying the maintenance of the variety,
(ii) the
breeder fails to pay such fees as may be payable to keep his right in force, or
(iii) the
breeder does not propose, where the denomination of the variety is cancelled
after the grant of the right, another suitable denomination.
(2) [Exclusion
of other reasons] No breeder’s right shall be cancelled for reasons other
than those referred to in paragraph (1).
CHAPTER VIII
THE UNION
Article 23
Members
The Contracting Parties shall be members of the Union.
Article 24
Legal Status and Seat
(1) [Legal personality] The Union has legal personality.
(2) [Legal
capacity] The Union enjoys on the territory of each Contracting Party, in
conformity with the laws applicable in the said territory, such legal capacity
as may be necessary for the fulfillment of the objectives of the Union and for
the exercise of its functions.
(3) [Seat]
The seat of the Union and its permanent organs are at Geneva.
(4) [Headquarters
agreement] The Union has a headquarters agreement with the Swiss
Confederation.
Article 25
Organs
The permanent organs of the Union
are the Council and the Office of the Union.
Article
26
The
Council
(1) [Composition]
The Council shall consist of the representatives of the members of the Union.
Each member of the Union shall appoint one representative to the Council and
one alternate. Representatives or alternates may be accompanied by assistants
or advisers.
(2) [Officers]
The Council shall elect a President and a first Vice‑President from among
its members. It may elect other Vice‑Presidents. The first Vice‑President
shall take the place of the President if the latter is unable to officiate. The
President shall hold office for three years.
(3) [Sessions]
The Council shall meet upon convocation by its President. An ordinary session
of the Council shall be held annually. In addition, the President may convene
the Council at his discretion; he shall convene it, within a period of three
months, if one‑third of the members of the Union so request.
(4) [Observers]
States not members of the Union may be invited as observers to meetings of the
Council. Other observers, as well as experts, may also be invited to such
meetings.
(5) [Tasks]
The tasks of the Council shall be to:
(i) study
appropriate measures to safeguard the interests and to encourage the
development of the Union;
(ii) establish
its rules of procedure;
(iii) appoint
the Secretary‑General and, if it finds it necessary, a Vice Secretary‑General
and determine the terms of appointment of each;
(iv) examine
an annual report on the activities of the Union and lay down the program for
its future work;
(v) give
to the Secretary‑General all necessary directions for the accomplishment
of the tasks of the Union;
(vi) establish
the administrative and financial regulations of the Union;
(vii) examine
and approve the budget of the Union and fix the contribution of each member of
the Union;
(viii) examine
and approve the accounts presented by the Secretary‑General;
(ix) fix
the date and place of the conferences referred to in Article 38 and take the
measures necessary for their preparation; and
(x) in
general, take all necessary decisions to ensure the efficient functioning of
the Union.
(6) [Votes]
(a) Each member of the Union that is a State shall have one vote in the
Council.
(b) Any
Contracting Party that is an intergovernmental organization may, in matters
within its competence, exercise the rights to vote of its member States that
are members of the Union. Such an intergovernmental organization shall not
exercise the rights to vote of its member States if its member States exercise
their right to vote, and vice versa.
(7) [Majorities]
Any decision of the Council shall require a simple majority of the votes cast,
provided that any decision of the Council under paragraphs (5)(ii), (vi)
and (vii) and under Articles 28(3), 29(5)(b) and 38(1) shall require
three fourths of the votes cast. Abstentions shall not be considered as votes.
Article
27
The
Office of the Union
(1) [Tasks
and direction of the Office] The Office of the Union shall carry out all
the duties and tasks entrusted to it by the Council. It shall be under the
direction of the Secretary‑General.
(2) [Duties
of the Secretary‑General] The Secretary‑General shall be
responsible to the Council; he shall be responsible for carrying out the
decisions of the Council. He shall submit the budget of the Union for the
approval of the Council and shall be responsible for its implementation. He
shall make reports to the Council on his administration and the activities and
financial position of the Union.
(3) [Staff]
Subject to the provisions of Article 26(5)(iii), the conditions of appointment
and employment of the staff necessary for the efficient performance of the
tasks of the Office of the Union shall be fixed in the administrative and
financial regulations.
Article 28
Languages
(1) [Languages
of the Office] The English, French, German and Spanish languages shall be
used by the Office of the Union in carrying out its duties.
(2) [Languages
in certain meetings] Meetings of the Council and of revision conferences
shall be held in the four languages.
(3) [Further
languages] The Council may decide that further languages shall be used.
Article 29
Finances
(1) [Income]
The expenses of the Union shall be met from
(i) the
annual contributions of the States members of the Union,
(ii) payments
received for services rendered,
(iii) miscellaneous
receipts.
(2) [Contributions:
units] (a) The share of each State member of the Union in the total
amount of the annual contributions shall be determined by reference to the
total expenditure to be met from the contributions of the States members of the
Union and to the number of contribution units applicable to it under paragraph (3).
The said share shall be computed according to paragraph (4).
(b) The
number of contribution units shall be expressed in whole numbers or fractions
thereof, provided that no fraction shall be smaller than one‑fifth.
(3) [Contributions:
share of each member] (a) The number of contribution units
applicable to any member of the Union which is party to the Act of 1961/1972 or
the Act of 1978 on the date on which it becomes bound by this Convention shall
be the same as the number applicable to it immediately before the said date.
(b) Any
other State member of the Union shall, on joining the Union, indicate, in a
declaration addressed to the Secretary‑General, the number of
contribution units applicable to it.
(c) Any
State member of the Union may, at any time, indicate, in a declaration
addressed to the Secretary‑General, a number of contribution units
different from the number applicable to it under subparagraph (a)
or (b). Such declaration, if made during the first six months of a
calendar year, shall take effect from the beginning of the subsequent calendar
year; otherwise, it shall take effect from the beginning of the second calendar
year which follows the year in which the declaration was made.
(4) [Contributions:
computation of shares] (a) For each budgetary period, the amount
corresponding to one contribution unit shall be obtained by dividing the total
amount of the expenditure to be met in that period from the contributions of
the States members of the Union by the total number of units applicable to
those States members of the Union.
(b) The
amount of the contribution of each State member of the Union shall be obtained
by multiplying the amount corresponding to one contribution unit by the number
of contribution units applicable to that State member of the Union.
(5) [Arrears
in contributions] (a) A State member of the Union which is in
arrears in the payment of its contributions may not, subject to subparagraph (b),
exercise its right to vote in the Council if the amount of its arrears equals
or exceeds the amount of the contribution due from it for the preceding full
year. The suspension of the right to vote shall not relieve such State member
of the Union of its obligations under this Convention and shall not deprive it
of any other rights thereunder.
(b) The
Council may allow the said State member of the Union to continue to exercise
its right to vote if, and as long as, the Council is satisfied that the delay
in payment is due to exceptional and unavoidable circumstances.
(6) [Auditing
of the accounts] The auditing of the accounts of the Union shall be
effected by a State member of the Union as provided in the administrative and
financial regulations. Such State member of the Union shall be designated, with
its agreement, by the Council.
(7) [Contributions
of intergovernmental organizations] Any Contracting Party which is an
intergovernmental organization shall not be obliged to pay contributions. If,
nevertheless, it chooses to pay contributions, the provisions of paragraphs (1)
to (4) shall be applied accordingly.
CHAPTER IX
IMPLEMENTATION OF THE CONVENTION;
OTHER AGREEMENTS
Article 30
Implementation
of the Convention
(1) [Measures
of implementation] Each Contracting Party shall adopt all measures
necessary for the implementation of this Convention; in particular, it shall:
(i) provide
for appropriate legal remedies for the effective enforcement of breeders’
rights;
(ii) maintain
an authority entrusted with the task of granting breeders’ rights or entrust
the said task to an authority maintained by another Contracting Party;
(iii) ensure
that the public is informed through the regular publication of information
concerning
— applications
for and grants of breeders’ rights, and
— proposed
and approved denominations.
(2) [Conformity
of laws] It shall be understood that, on depositing its instrument of
ratification, acceptance, approval or accession, as the case may be, each State
or intergovernmental organization must be in a position, under its laws, to
give effect to the provisions of this Convention.
Article 31
Relations
Between Contracting Parties
and States Bound by Earlier Acts
(1) [Relations
between States bound by this Convention] Between States members of the Union
which are bound both by this Convention and any earlier Act of the Convention,
only this Convention shall apply.
(2) [Possible
relations with States not bound by this Convention] Any State member of the
Union not bound by this Convention may declare, in a notification addressed to
the Secretary‑General, that, in its relations with each member of the
Union bound only by this Convention, it will apply the latest Act by which it
is bound. As from the expiration of one month after the date of such
notification and until the State member of the Union making the declaration
becomes bound by this Convention, the said member of the Union shall apply the
latest Act by which it is bound in its relations with each of the members of
the Union bound only by this Convention, whereas the latter shall apply this
Convention in respect of the former.
Article 32
Special
Agreements
Members
of the Union reserve the right to conclude among themselves special agreements
for the protection of varieties, insofar as such agreements do not contravene
the provisions of this Convention.
CHAPTER X
FINAL PROVISIONS
Article 33
Signature
This
Convention shall be open for signature by any State which is a member of the Union
at the date of its adoption. It shall remain open for signature until March 31, 1992.
Article 34
Ratification, Acceptance or Approval; Accession
(1) [States
and certain intergovernmental organizations] (a) Any State may, as
provided in this Article, become party to this Convention.
(b) Any
intergovernmental organization may, as provided in this Article, become party
to this Convention if it
(i) has
competence in respect of matters governed by this Convention,
(ii) has
its own legislation providing for the grant and protection of breeders’ rights
binding on all its member States and
(iii) has
been duly authorized, in accordance with its internal procedures, to accede to
this Convention.
(2) [Instrument
of adherence] Any State which has signed this Convention shall become party
to this Convention by depositing an instrument of ratification, acceptance or
approval of this Convention. Any State which has not signed this Convention and
any intergovernmental organization shall become party to this Convention by
depositing an instrument of accession to this Convention. Instruments of
ratification, acceptance, approval or accession shall be deposited with the
Secretary‑General.
(3) [Advice
Of the Council] Any State which is not a member of the Union and any
intergovernmental organization shall, before depositing its instrument of
accession, ask the Council to advise it in respect of the conformity of its
laws with the provisions of this Convention. If the decision embodying the
advice is positive, the instrument of accession may be deposited.
Article 35
Reservations
(1) [Principle]
Subject to paragraph (2), no reservations to this Convention are
permitted.
(2) [Possible
exception] (a) Notwithstanding the provisions of Article 3(1), any
State which, at the time of becoming party to this Convention, is a party to
the Act of 1978 and which, as far as varieties reproduced asexually are concerned,
provides for protection by an industrial property title other than a breeder’s
right shall have the right to continue to do so without applying this
Convention to those varieties.
(b) Any
State making use of the said right shall, at the time of depositing its
instrument of ratification, acceptance, approval or accession, as the case may
be, notify the Secretary‑General accordingly. The same State may, at any
time, withdraw the said notification.
Article 36
Communications
Concerning Legislation and the Genera and Species
Protected; Information to be Published
(1) [Initial
notification] When depositing its instrument of ratification, acceptance or
approval of or accession to this Convention, as the case may be, any State or
intergovernmental organization shall notify the Secretary‑General of
(i) its
legislation governing breeders’ rights and
(ii) the
list of plant genera and species to which, on the date on which it will become
bound by this Convention, it will apply the provisions of this Convention.
(2) [Notification
of changes] Each Contracting Party shall promptly notify the Secretary‑General
of
(i) any
changes in its legislation governing breeders’ rights and
(ii) any
extension of the application of this Convention to additional plant genera and
species.
(3) [Publication
of the information] The Secretary‑General shall, on the basis of
communications received from each Contracting Party concerned, publish
information on
(i) the
legislation governing breeders’ rights and any changes in that legislation, and
(ii) the
list of plant genera and species referred to in paragraph (1)(ii) and any
extension referred to in paragraph (2)(ii).
Article 37
Entry into Force; Closing of Earlier Acts
(1) [Initial
entry into force] This Convention shall enter into force one month after
five States have deposited their instruments of ratification, acceptance,
approval or accession, as the case may be, provided that at least three of the
said instruments have been deposited by States party to the Act of 1961/1972 or
the Act of 1978.
(2) [Subsequent
entry into force] Any State not covered by paragraph (1) or any
intergovernmental organization shall become bound by this Convention one month
after the date on which it has deposited its instrument of ratification, acceptance,
approval or accession, as the case may be.
(3) [Closing
of the 1978 Act] No instrument of accession to the Act of 1978 may be
deposited after the entry into force of this Convention according to paragraph (1),
except that any State that, in conformity with the established practice of the
General Assembly of the United Nations, is regarded as a developing country may
deposit such an instrument until December 31, 1995, and that any other State
may deposit such an instrument until December 31, 1993, even if this Convention
enters into force before that date.
Article 38
Revision
of the Convention
(1) [Conference]
This Convention may be revised by a conference of the members of the Union. The
convocation of such conference shall be decided by the Council.
(2) [Quorum
and majority] The proceedings of a conference shall be effective only if at
least half of the States members of the Union are represented at it. A majority
of three quarters of the States members of the Union present and voting at the
conference shall be required for the adoption of any revision.
Article 39
Denunciation
(1) [Notifications]
Any Contracting Party may denounce this Convention by notification addressed to
the Secretary‑General. The Secretary‑General shall promptly notify
all members of the Union of the receipt of that notification.
(2) [Earlier
Acts] Notification of the denunciation of this Convention shall be deemed
also to constitute notification of the denunciation of any earlier Act by which
the Contracting Party denouncing this Convention is bound.
(3) [Effective
date] The denunciation shall take effect at the end of the calendar year
following the year in which the notification was received by the Secretary‑General.
(4) [(Acquired
rights] The denunciation shall not affect any rights acquired in a variety
by reason of this Convention or any earlier Act prior to the date on which the
denunciation becomes effective.
Article 40
Preservation
of Existing Rights
This
Convention shall not limit existing breeders’ rights under the laws of
Contracting Parties or by reason of any earlier Act or any agreement other than
this Convention concluded between members of the Union.
Article 41
Original and Official Texts of the Convention
(1) [Original]
This Convention shall be signed in a single original in the English, French and
German languages, the French text prevailing in case of any discrepancy among
the various texts. The original shall be deposited with the Secretary‑General.
(2) [Official
texts] The Secretary‑General shall, after consultation with the
interested Governments, establish official texts of this Convention in the
Arabic, Dutch, Italian, Japanese and Spanish languages and such other languages
as the Council may designate.
Article 42
Depositary Functions
(1) [Transmittal
of copies] The Secretary‑General shall transmit certified copies of
this Convention to all States and intergovernmental organizations which were
represented in the Diplomatic Conference that adopted this Convention and, on
request, to any other State or intergovernmental organization.
(2) [Registration]
The Secretary‑General shall register this Convention with the Secretariat
of the United Nations.