| C2004C06039 | PLANT VARIETY RIGHTS ACT 1987 [Note: This Act is "repealed" by Act No. 110 of 1994]
(#DATE 31:10:1992)
- Reprinted as at 31 October 1992 *1* The Plant Variety Rights Act 1987 as shown in this reprint comprises Act No. 2, 1987 amended as indicated in the Tables below. Table of Acts Act Date Date of Application, Number and of Assent commencement saving or year transitional provisions Plant Variety Rights Act 1987 2, 1987 13 Mar 1987 1 May 1987 (see Gazette 1987, No. S69) Primary Industries and Energy Legislation Amendment Act 1988 111, 1988 12 Dec 1988 S. 3: Royal Assent (a) - Primary Industries and Energy Legislation Amendment Act (No. 2) 1989 15, 1990 17 Jan 1990 S. 3: Royal Assent (b) - Primary Industries and Energy Legislation Amendment Act 1990 134, 1990 28 Dec 1990 Part 7 (ss. 34-37): 1 Oct 1990 Remainder: Royal Assent - (a) The Plant Variety Rights Act 1987 was amended by section 3 only of the Primary Industries and Energy Legislation Amendment Act 1988, subsection 2 (1) of which provides as follows: "(1) Subject to this section, this Act commences on the day on which it receives the Royal Assent." (b) The Plant Variety Rights Act 1987 was amended by section 3 only of the Primary Industries and Energy Legislation Amendment Act (No. 2) 1989, subsection 2 (1) of which provides as follows: "(1) Subject to this section, this Act commences on the day on which it receives the Royal Assent." Table of Amendments ad=added or inserted am=amended rep=repealed rs=repealed and substituted Provision affected How affected S. 3 am. No. 111, 1988; No. 134, 1990 S. 12 am. No. 15, 1990 S. 13 am. No. 134, 1990 S. 17A ad. No. 134, 1990 S. 18 am. Nos. 15 and 134, 1990 Ss. 22, 23 am. No. 134, 1990 S. 28 am. No. 15, 1990 S. 38 am. No. 15, 1990 S. 40 am. No. 15, 1990 S. 46 rs. No. 111, 1988 S. 52 am. No. 134, 1990 PLANT VARIETY RIGHTS ACT 1987 - TABLE OF PROVISIONS
TABLE
Section
TABLE OF PROVISIONS
PART I - PRELIMINARY
1. Short title
2. Commencement
3. Interpretation
4. Act to bind Crown
5. Extent of Act
PART II - ADMINISTRATION
6. Registrar of Plant Variety Rights
7. Delegation
8. Certain persons not to acquire plant variety rights
9. Register of Plant Variety Rights
10. Genetic resources centres
11. Public notice
PART III - PLANT VARIETY RIGHTS
Division 1 - Preliminary
12. Plant variety rights
13. Plant variety rights not to be granted in relation to
certain Varieties
14. Plant variety rights not to be granted in respect of
varieties previously sold
Division 2 - Applications for Plant Variety Rights
15. Application for plant variety rights
16. Form of application
17. Names of new plant varieties
17A. Priority of certain breeders
18. Lodging of applications
19. Variation of application
20. Objections to grant of plant variety rights
21. Inspection of applications and objections
22. Provisional protection
23. Characteristics of plant varieties originated outside
Australia
24. Test growing of plant varieties
25. Withdrawal of application
Division 3 - Grant of Plant Variety Rights
26. Grant of plant variety rights
27. Entry of grant of plant variety rights
28. Notice of grant of plant variety rights
29. Effect of grant on certain persons
Division 4 - Miscellaneous
30. Nature of plant variety rights
31. Assignment of plant variety rights
32. Duration of plant variety rights
33. Supply of reproductive material etc.
34. Plant variety rights subject to conditions
35. Revocation of plant variety rights
36. Surrender of plant variety rights
37. Entry of particulars of revocation etc.
38. Plant variety rights not to restrict sales for
food, fibre, fuel etc.
39. Protection of public interest in new plant varieties
40. Infringement of plant variety rights
41. Actions for infringement of plant variety rights
42. Declaration as to non-infringement
43. Jurisdiction of Court
PART IV - PLANT VARIETY RIGHTS ADVISORY COMMITTEE
44. Establishment of Advisory Committee
45. Membership of Advisory Committee
46. Remuneration and allowances
47. Disclosure of interests
48. Meetings
PART V - MISCELLANEOUS
49. Inspection of Register
50. Agents may act in plant variety rights matters
51. Service of documents
52. Offences
53. Applications for review
54. Statement to accompany notice of decisions
55. Regulations
SCHEDULE
CONVENTION
PLANT VARIETY RIGHTS ACT 1987 - LONG TITLE
SECT
An Act to provide for the granting of proprietary
rights to persons originating certain new plant
varieties, and for related purposes
PLANT VARIETY RIGHTS ACT 1987 - PART I - PRELIMINARY
PART I - PRELIMINARY
PLANT VARIETY RIGHTS ACT 1987 - SECT 1
Short title
SECT
1. This Act may be cited as the Plant Variety Rights Act 1987.*1*
SEE NOTES TO FIRST ARTICLE OF THIS CHAPTER .
PLANT VARIETY RIGHTS ACT 1987 - SECT 2
Commencement
SECT
2. This Act shall come into operation on a day to be fixed by
Proclamation.*1*
SEE NOTES TO FIRST ARTICLE OF THIS CHAPTER .
PLANT VARIETY RIGHTS ACT 1987 - SECT 3
Interpretation
SECT
3. (1) In this Act, unless the contrary intention appears:
"accepted", in relation to an application, means accepted by the Secretary
under section 18;
"Advisory Committee" means the Plant Variety Rights Advisory Committee
established by section 44;
"applicant", in relation to an application, means the person for the time
being shown in the application as the person making the application;
"application" means an application under section 15 for plant variety rights
in respect of a new plant variety to which this Act applies;
"breeder", in relation to a new plant variety, means:
(a) subject to paragraph (c), in the case of a variety originated by one
person only - that person;
(b) subject to paragraph (c), in the case of a variety originated by 2 or
more persons (whether jointly, independently at the same time, independently
at different times or otherwise) - each of those persons; or
(c) in the case of a variety originated:
(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 members or employees of such a body;
the body of which that person is a member or employee, or of which those
persons are members or employees, as the case may be;
"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;
"genetic resources centre" means:
(a) a place known as a Plant Genetic Resources Centre;
or (b) a place that is a genetic resources centre because of a declaration
in force under subsection 10 (1);
"grantee", in relation to plant variety rights, means the person for the
time being entered on the Register as the grantee of those rights;
"member" means a member of the Advisory Committee, and includes the
Registrar;
"new plant variety" means a plant variety that:
(a) was originated by a person;
(b) is homogeneous having regard to the particular features of its sexual
reproduction or vegetative propagation;
(c) is stable; and
(d) is distinguishable by one or more important morphological, physiological
or other characteristics from all other plant varieties whose existence was a
matter of common knowledge at the time when the application in respect of the
variety was made;
"plant" does not include fungus, alga or bacterium;
"plant variety" includes cultivar, clone, hybrid and strain;
"plant variety rights" means the rights specified in section 12;
"Register" means the Register of Plant Variety Rights kept in pursuance of
section 9;
"Registrar" means the Registrar of Plant Variety Rights;
"reproductive material", in relation to a plant, means:
(a) a seed of that plant;
(b) a cutting from that plant; or
(c) any other part, or product, of that plant, from which another plant can
be produced;
"Secretary" means the Secretary to the Department;
"sell", in relation to a plant or reproductive material of a plant, includes
let on hire and exchange by way of barter;
"successor", in relation to a breeder of a new plant variety, means a person
to whom the right of the breeder to make an application for plant variety
rights in respect of that plant variety has been assigned or transmitted;
"will" includes a codicil.
(2) For the purpose of this Act, a plant variety in respect of which an
application has been made shall be taken to be stable if, and only if, plants
of the variety remain true to the description of a plant of the variety given
in the application:
(a) except where paragraph (b) applies - after repeated reproduction or
propagation of plants of the variety; or
(b) where the application specifies a particular cycle of reproduction or
multiplication - at the end of each of those cycles.
(3) For the purposes of this Act, where a plant variety is originated by the
selective breeding of plants, the person who carried out that breeding shall
be taken to have originated that variety.
(3A) For the purposes of this Act, a person who selects a plant variety from
a plant population that the person has grown, being a plant variety that is
distinguishable by one or more important morphological, physiological or other
characteristics from all other plant varieties whose existence at the time is
a matter of common knowledge, is taken to have originated that variety.
(4) For the purposes of this Act, where a plant variety is originated by a
humanly induced genetic mutation, the person who induced that mutation shall
be taken to have originated that variety.
(5) Where:
(a) a person carries on activities in relation to particular plants or
particular reproductive material of plants in the hope that a plant variety
derived from those plants or that material will originate by natural
processes; and
(b) a plant variety so derived, or apparently so derived, originates by
natural processes;
that person shall be taken to have originated the plant variety referred to in
paragraph (b).
(6) A reference in this Act to a test growing of a plant variety is a
reference to a test involving:
(a) the growing, or the production and growing, of plants, or of 2 or more
generations of plants, of that variety at a place that is, and under
conditions that are, appropriate for the growing of plants of that variety;
(b) the observation of the characteristics, and the condition, of the plants
grown at the various stages in their growth; and
(c) the recording of those observations.
(7) Where, for the purposes of this Act, the Secretary or another person
(including a court and the Administrative Appeals Tribunal) is required to be
satisfied that a plant variety in respect of which an application has been
made is a new plant variety, that person shall, for the purpose of deciding
whether the person is so satisfied, assume:
(a) that all the plant varieties whose existence was a matter of common
knowledge when the application was made were constituted by, and constituted
only by, the plant varieties that were in existence at the time when the
application was made; and
(b) that the only plant varieties that were in existence at the time when
the application was made were the plant varieties of the existence of which at
that time that person is aware after making such inquiries, and consulting
such publications readily available in Australia, as that person considers
appropriate.
PLANT VARIETY RIGHTS ACT 1987 - SECT 4
Act to bind Crown
SECT
4. (1) This Act binds the Crown in right of the Commonwealth, of each of the
States, of the Northern Territory and of Norfolk Island.
(2) Nothing in this Act renders the Crown in right of the Commonwealth, of a
State, of the Northern Territory or of Norfolk Island liable to be prosecuted
for an offence.
PLANT VARIETY RIGHTS ACT 1987 - SECT 5
Extent of Act
SECT
5. Nothing in this Act requires or permits the grant of plant variety rights
in respect of a new plant variety unless:
(a) the origination of that new plant variety constituted an invention for
the purposes of paragraph 51 (xviii) of the Constitution; or
(b) where Australia is a party to the Convention - the grant is appropriate
to give effect to the obligations of Australia under the Convention.
PLANT VARIETY RIGHTS ACT 1987 - PART II
PART II - ADMINISTRATION
PLANT VARIETY RIGHTS ACT 1987 - SECT 6
Registrar of Plant Variety Rights
SECT
6. (1) There shall be a Registrar of Plant Variety Rights.
(2) The office of Registrar of Plant Variety Rights shall be an office in
the Department.
(3) The Registrar has such functions and powers as are conferred on the
Registrar by this Act or by the regulations or are delegated to the Registrar
by the Secretary under section 7.
PLANT VARIETY RIGHTS ACT 1987 - SECT 7
Delegation
SECT
7. (1) The Secretary may, either generally or as otherwise provided in the
instrument of delegation, by writing signed by the Secretary, delegate to the
Registrar or to another officer of the Department all or any of the powers of
the Secretary under this Act, other than this power of delegation.
(2) A power so delegated, when exercised by the delegate, shall, for the
purposes of this Act, be deemed to have been exercised by the Secretary.
(3) A delegation under this section does not prevent the exercise of a power
by the Secretary.
PLANT VARIETY RIGHTS ACT 1987 - SECT 8
Certain persons not to acquire plant variety rights
SECT
8. (1) The Secretary, the Registrar or a person who, during the preceding 12
months has held, or performed the duties of, the office of Secretary or
Registrar of Plant Variety Rights shall not apply for plant variety rights or
acquire, otherwise than by will or by operation of law, any such rights or an
interest in any such rights.
Penalty: $2,000.
(2) A grant of plant variety rights applied for in contravention of
subsection (1) or an acquisition of plant variety rights in contravention of
that subsection is void.
PLANT VARIETY RIGHTS ACT 1987 - SECT 9
Register of Plant Variety Rights
SECT
9. (1) The Registrar shall keep, at a place approved by the Secretary, a
register, to be known as the Register of Plant Variety Rights, in which shall
be entered particulars required to be entered by this Act or the regulations.
(2) The Registrar shall cause a copy of, or copies of, the Register to be
kept and maintained in each State or Territory (other than the State or
Territory where the place at which the Register is required to be kept is
located) at the principal office of the Department in that State or Territory
and at such other place or places (if any) in that State or Territory as the
Secretary may direct.
PLANT VARIETY RIGHTS ACT 1987 - SECT 10
Genetic resources centres
SECT
10. (1) The Secretary may, by writing signed by the Secretary, declare a
specified place that, in the opinion of the Secretary, is suitable for the
storage and maintenance of germ plasm material to be a genetic resources
centre for the purposes of this Act.
(2) The person in charge of a genetic resources centre may do all things
necessary or desirable to maintain the viability of the reproductive material
of plants stored at that centre in accordance with section 33.
PLANT VARIETY RIGHTS ACT 1987 - SECT 11
Public notice
SECT
11. (1) In addition to giving public notice of matters of which the
Secretary is required to give notice by this Act or by the regulations, the
Secretary may give public notice of other matters relating to this Act where
the Secretary considers it necessary or desirable to do so.
(2) Subject to subsections (3) and (5), where the Secretary is required or
permitted to give public notice of a matter for the purposes of this Act, the
Secretary shall do so by publishing notice in writing of the matter in the
Gazette.
(3) Subject to subsection (4), where the Secretary considers that the volume
of public notices of matters to be given for the purposes of this Act
justifies the issue from time to time of a journal, to be called the Plant
Varieties Journal, and the publication of notices of those matters in that
journal instead of in the Gazette, the Secretary may issue that journal and,
during the period in which the journal is being issued, shall give public
notice of those matters by publishing notice in writing of them in that
journal.
(4) The Secretary:
(a) shall not issue the Plant Varieties Journal unless and until he or she
has given public notice of the intention to do so; and
(b) shall not cease to issue that journal unless and until he or she has
given public notice of the intention to cease to issue the journal.
(5) Subject to subsection (6), where the Secretary considers that it is
desirable to give public notices of matters for the purposes of this Act by
publishing notice of those matters in a particular periodical other than the
Gazette or the Plant Varieties Journal, the Secretary shall, unless it has
become impossible to publish notice of those matters in that particular
periodical, give public notice of those matters by publishing notice in
writing of them in that particular periodical.
(6) The Secretary:
(a) shall not publish notices of matters in a particular periodical in
accordance with subsection (5) unless and until he or she has given public
notice of the intention to do so specifying the publication;
(b) where the Secretary wishes to discontinue publishing notices of matters
in a particular periodical in accordance with subsection (5), the Secretary
shall give public notice of his or her intention to so discontinue and, after
giving that notice, shall so discontinue; and
(c) if it becomes impossible to publish notices of matters in accordance
with subsection (5) in a particular journal because the journal has ceased
publication or otherwise, the Secretary shall publish a notice in writing in
the Gazette of the discontinuance of the publication of those notices in that
publication.
PLANT VARIETY RIGHTS ACT 1987 - PART III
PART III - PLANT VARIETY RIGHTS
PLANT VARIETY RIGHTS ACT 1987 - DIVISION 1
Division 1 - Preliminary
PLANT VARIETY RIGHTS ACT 1987 - SECT 12
Plant variety rights
SECT
12. (1) Plant variety rights, in respect of a new plant variety, are:
(a) the exclusive right to sell, including the right to license other
persons to sell, plants of that variety;
(b) the exclusive right to sell, including the right to license other
persons to sell, reproductive material of plants of that variety;
(c) the exclusive right to produce, including the right to license other
persons to produce, plants of that variety for sale;
(d) the exclusive right to produce, including the right to license other
persons to produce, reproductive material of plants of that variety for sale;
and
(e) if the plants of that variety are plants of a prescribed genus or
prescribed species:
(i) the exclusive right to produce asexually, including the
right to license other persons to produce asexually, plants of that variety
for the commercial production of the fruit, flowers, or any other product, of
those plants; and
(ii) the exclusive right to produce asexually, including the
right to license other persons to produce asexually, reproductive material of
plants of that variety for the commercial production of the fruit, flowers, or
any other product, of those plants.
(2) Plant variety rights in respect of a plant variety are subject to
conditions imposed in respect of those rights by section 33 or under section
34.
(3) Plant variety rights referred to in subparagraph (1) (e) (i) or (ii) are
subject to the condition that the grantee of those rights in respect of a
plant variety shall license a person:
(a) to produce asexually plants of that variety; or
(b) to produce asexually reproductive material of plants of that variety;
(as the case may be) unless the person refuses or fails to comply with any
condition to which the licence may reasonably be, and is, subject.
PLANT VARIETY RIGHTS ACT 1987 - SECT 13
Plant variety rights not to be granted in relation to certain varieties
SECT
13. (1) Plant variety rights must not be granted in respect of a plant
variety if the plants of that variety are plants of a genus or species
declared by the regulations to be a genus or species to which this Act does
not apply.
(2) The Governor-General shall not make a regulation declaring a genus or
species to be a genus or species to which this Act does not apply 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 the genus or species being declared to be a genus or species
to which this Act does not apply.
(3) For the purposes of this section, a plant that is a hybrid derived from
plants of different genera or species may be taken to be a plant of either of
those genera or species.
PLANT VARIETY RIGHTS ACT 1987 - SECT 14
Plant variety rights not to be granted in respect of varieties previously
sold
SECT
14. Where an application is made for plant variety rights in respect of a
plant variety, those rights shall not be granted if there has been a sale of a
plant, or reproductive material of a plant, of that variety by, or with the
consent of, the breeder or a breeder, or a successor of the breeder or of a
breeder, of the variety, and:
(a) the sale took place in Australia before the making of the application;
or
(b) the sale took place in another country earlier than 6 years before the
making of the application.
PLANT VARIETY RIGHTS ACT 1987 - DIVISION 2
Division 2 - Applications for Plant Variety Rights
PLANT VARIETY RIGHTS ACT 1987 - SECT 15
Application for plant variety rights
SECT
15. (1) Subject to this Act, a breeder of a new plant variety may make an
application to the Secretary for plant variety rights in respect of the
variety.
(2) A breeder of a new plant variety has the right under subsection (1) to
make an application for plant variety rights in respect of that variety
whether or not the breeder is an Australian citizen, whether or not the
breeder is resident in Australia and whether the breeder originated the
variety in Australia or in another country.
(3) The right under subsection (1) of a breeder of a new plant variety to
make an application for plant variety rights is personal property and is
capable of assignment or of transmission by will or by operation of law
(whether before or after the application has been made).
(4) An assignment of a right to make an application for plant variety rights
does not have effect unless it is in writing signed by or on behalf of the
assignor.
(5) Subject to subsection (6), where 2 or more persons are entitled to make
applications for plant variety rights in respect of a new plant variety,
whether by reason that they originated the variety jointly or independently or
otherwise, those persons or some of those persons may make a joint application
for those rights.
(6) Where 2 or more persons (in this subsection referred to as the
"breeders") originate a new plant variety jointly, one of those breeders or a
successor of one of those breeders shall not make an application for plant
variety rights in respect of that variety otherwise than jointly with, or with
the consent in writing of, the other person, or each other person, entitled to
make an application for those rights.
PLANT VARIETY RIGHTS ACT 1987 - SECT 16
Form of application
SECT
16. An application for plant variety rights in respect of a plant variety
shall be in writing in a form approved by the Secretary, shall be lodged with
the Secretary in the prescribed manner and shall contain:
(a) the name of the person making the application;
(b) where the applicant is the breeder of the variety, a statement that the
applicant is the breeder of the variety;
(c) where the applicant is not the breeder of the variety, the name and
address of the breeder from whom the applicant derived the right to make an
application and particulars of all relevant assignments and transmissions of
the right to make the relevant application;
(d) a description, or a description and photograph, of a plant of the
variety sufficient to identify plants of that variety;
(e) particulars of the characteristics that distinguish the variety from
other varieties;
(f) particulars of the manner in which the variety was originated;
(g) the name of the variety;
(h) particulars of any application for, or approval of a grant of, rights of
any kind in respect of the variety in any other country;
(j) particulars of any tests carried out to establish that the variety is
homogeneous and stable (including particulars of any cycle of reproduction or
multiplication for the purposes of paragraph 3 (2) (b));
(k) in the case of a plant variety originated outside Australia, particulars
of any test growing of that variety carried out for the purpose of determining
whether the variety will, if grown in Australia, have a particular
characteristic;
(m) an address in Australia for the service of documents on the applicant
for the purposes of this Act; and
(n) such other particulars (if any) as are prescribed.
PLANT VARIETY RIGHTS ACT 1987 - SECT 17
Names of new plant varieties
SECT
17. (1) The name of a new plant variety shall consist of a word or words
(which may be an invented word or words) with or without the addition of:
(a) a letter or letters not constituting a word;
(b) a figure or figures; or
(c) both a letter or letters not constituting a word and a figure or
figures.
(2) A new plant variety shall not have:
(a) a name the use of which would be likely to deceive or cause confusion,
including a name that is the same as, or is likely to be mistaken for, the
name of another plant variety;
(b) a name the use of which would be contrary to law;
(c) a name that comprises or contains scandalous or offensive matter; or
(d) a name, or name of a kind, that is, at the time when the application is
made, prohibited by the regulations.
(3) The name of a new plant variety in respect of which an application is
made shall comply with any recommendations of the International Code of
Nomenclature for Cultivated Plants, as in force when the application is made,
formulated and adopted by the International Commission for Nomenclature of
Cultivated Plants of the International Union of Biological Sciences that are
accepted by Australia.
(4) The name of a new plant variety in respect of which an application is
made shall not consist of, or include:
(a) the name of a natural person living at the time of the application,
other than a person who has given written consent to the name of the plant
variety;
(b) the name of a natural person who died within the period of 10 years
immediately preceding the application, other than a person who has given, or
whose legal personal representative has given, written consent to the name of
the plant variety; or
(c) the name of a corporation, organisation or institution, other than a
corporation, organisation or institution that has given its written consent to
the name of the plant variety.
PLANT VARIETY RIGHTS ACT 1987 - SECT 17A
Priority of certain breeders
SECT
17A. (1) A person who:
(a) is the breeder of a new plant variety; and
(b) in a member State of the Union (other than Australia) within the meaning
of the Convention, makes an application (in this section called the "foreign
application") for all or any plant variety rights in respect of that variety;
has priority for the purposes of this Act in respect of that variety during
the period of 12 months commencing on the day after the day on which that
application is made.
(2) If:
(a) during that period of 12 months the person makes an application to the
Secretary for protection under this Act in respect of that plant variety
accompanied by a claim for priority in respect of the foreign application;
and
(b) during that period but within 3 months of making that application, the
person lodges with the Secretary a copy of the documents that constituted the
foreign application certified to be a true copy of those documents by the
authority that received the foreign application;
the person has priority in respect of that plant variety during such
additional period, commencing at the end of that period of 12 months, as is
prescribed.
(3) If, during that additional period, the person provides the Secretary
with such particulars in relation to the plant variety as would be required if
the person were making an application under section 16, the person is taken to
have made an application under this Act for plant variety rights in respect of
that variety.
PLANT VARIETY RIGHTS ACT 1987 - SECT 18
Lodging of applications
SECT
18. (1) Where an application is lodged in respect of a new plant variety:
(a) if the Secretary is satisfied that:
(i) the application complies with the requirement of section
16; and
(ii) the name of the variety complies with section 17;
and
(iii) no other person has priority for the purposes of this
Act in respect of that variety;
the Secretary shall accept the application; or
(b) if the Secretary is not so satisfied - the Secretary shall reject the
application.
(2) Where the Secretary accepts an application, the Secretary shall, within
30 days after accepting the application, give written notice to the applicant
stating that the application has been accepted and, as soon as possible after
notifying the applicant, give public notice of the acceptance of the
application.
(3) Where the Secretary rejects an application, the Secretary shall, within
30 days after rejecting the application, give written notice to the applicant
stating that the application has been rejected and setting out the grounds for
the rejection.
PLANT VARIETY RIGHTS ACT 1987 - SECT 19
Variation of application
SECT
19. (1) Where, after an application has been accepted and before it is
disposed of, the applicant requests the Secretary in writing to vary the
application, the Secretary may, in his or her discretion, vary the application
in accordance with the request.
(2) Where, after an application has been accepted and before it is disposed
of, the right of the applicant to make the application is assigned or
transmitted to another person, that person shall forthwith request the
Secretary, in writing, to vary the application so that that person is shown as
the person making the application and the Secretary, if he or she is satisfied
that that right has been so assigned or transmitted, shall so vary the
application.
(3) Where the Secretary complies with a request under subsection (1) or (2)
to vary an application, the Secretary shall forthwith give written notice to
the person who made the request stating that the application has been varied
in accordance with the request.
(4) Where the Secretary rejects a request under subsection (1) or (2) to
vary an application, the Secretary shall forthwith give written notice to the
person who made the request stating that the request has been rejected and
setting out the grounds for the rejection.
(5) Where the Secretary complies with a request under subsection (2) to vary
an application so that a person who claims to have been assigned the right to
make the application is shown as the person making the application, the
Secretary shall forthwith give written notice of particulars of the variation
to the person who was the applicant before the variation was made.
(6) Where the Secretary rejects a request under subsection (2) to vary an
application so that a person who claims to have been assigned the right to
make the application would be shown as the person making the application, the
Secretary shall forthwith give written notice to the applicant:
(a) setting out particulars of the request;
(b) stating that the request has been rejected; and
(c) setting out the grounds for the rejection.
(7) Where an application is varied in pursuance of a request under
subsection (1) in a manner that the Secretary considers to be significant, or
is varied under subsection (2), the Secretary shall forthwith give public
notice of particulars of the variation.
(8) A request by a person under subsection (2) shall give an address in
Australia for the service of documents on the person for the purposes of this
Act and:
(a) where the Secretary complies with the request and the address so given
is different from the address contained in the application in accordance with
paragraph 16 (m) - the Secretary shall vary the application so that the
address so given is shown as the address for the service of documents on the
applicant for the purposes of this Act; or
(b) where the Secretary rejects the request - the notice to that person
under subsection (4) shall be given by being posted by pre-paid post as a
letter addressed to the person at the address so given.
PLANT VARIETY RIGHTS ACT 1987 - SECT 20
Objections to grant of plant variety rights
SECT
20. (1) Where public notice of an application for plant variety rights in
respect of a plant variety or of the variation of such an application is
given, any person who considers:
(a) that the commercial interests of the person would be affected by the
grant of those rights to the applicant; and
(b) that the Secretary cannot be satisfied, in relation to that variety, of
a matter referred to in paragraph 26 (1) (a) (other than a matter referred to
in subparagraph 26 (1) (a) (viii));
may, within 6 months after the giving of public notice of the application or
any further time before the application is disposed of that is allowed by the
Registrar, lodge with the Registrar written objection to the grant of those
rights setting out particulars of the manner in which the person considers
that the interests of the person would be affected and of the reasons why the
person considers that the Secretary cannot be satisfied of that matter.
(2) Where an objection to the grant of plant variety rights is lodged under
subsection (1), the Registrar shall cause a copy of that objection to be given
to the applicant for those rights.
PLANT VARIETY RIGHTS ACT 1987 - SECT 21
Inspection of applications and objections
SECT
21. A person may inspect an application, or an objection lodged under
subsection 20 (1), at any reasonable time and is entitled, upon payment of
such fee (if any) as is prescribed, to be given a copy of the application or
of the objection.
PLANT VARIETY RIGHTS ACT 1987 - SECT 22
Provisional protection
SECT
22. (1) Where an application for plant variety rights in respect of a plant
variety has been accepted, the applicant shall, for the purpose of sections 40
and 41, be deemed to be the grantee of plant variety rights in respect of that
plant variety during the period commencing on the acceptance of the
application and ending:
(a) when the application is disposed of; or
(b) if the Secretary has given the applicant a notice under subsection (2) -
at the expiration of the prescribed period after the notice is given;
whichever occurs first.
(2) Subject to subsection (3), where the Secretary is satisfied, in relation
to an application for plant variety rights in respect of a plant variety,
that:
(a) plant variety rights will not be granted, or are unlikely to be granted,
to the applicant in respect of that plant variety:
(i) scientific purposes;
(ii) the purpose of creating a stock of plants, or
reproductive material of plants, of that variety for supply to the applicant;
or
(iii) another prescribed purpose; or
(c) the applicant has given an undertaking to a person, whether or not for
consideration, not to institute proceedings for the infringement of the rights
of which the applicant is deemed to be the grantee by virtue of subsection
(1);
the Secretary may give the applicant notice, in writing, that this section
shall cease to apply to that variety.
(3) The Secretary shall not give notice under subsection (2) in relation to
an application unless and until the Secretary has given the applicant
particulars of the grounds for the proposed notice and a reasonable
opportunity to make a written submission to the Secretary in relation to the
proposed notice.
(4) Where a person ceases to be deemed to be the grantee of plant variety
rights by virtue of a notice under subsection (2), the Secretary shall give
public notice that the person has ceased to be so deemed.
(5) For the purposes of paragraph (1) (b), the prescribed period is the
period commencing on the day on which the notice referred to in that paragraph
is given and ending:
(a) subject to paragraph (b), at the expiration of the period within which
an application may be made to the Administrative Appeals Tribunal for a review
of the giving of the notice; or
(b) if such an application is made to the Administrative Appeals Tribunal -
at the time at which the application is withdrawn or finally determined,
whether by the Tribunal or by a court.
(6) Nothing in this section shall be taken to affect the powers of the
Federal Court under subsection 44A (2) of the Administrative Appeals Tribunal
Act 1975 where an appeal is instituted in that court from a decision of the
Administrative Appeals Tribunal in respect of an application referred to in
paragraph (5) (b).
(7) A person who is deemed by subsection (1) to be the grantee of plant
variety rights in respect of a plant variety is not entitled to institute an
action or proceeding for an infringement of those rights occurring during the
period in respect of which the person is deemed by that subsection to be the
grantee of those rights unless and until plant variety rights in respect of
that plant variety are granted to the person under section 26.
PLANT VARIETY RIGHTS ACT 1987 - SECT 23
Characteristics of plant varieties originated outside Australia
SECT
23. For the purposes of this Act, where a plant variety in respect of which
an application has been accepted was originated outside Australia, the variety
shall not be taken to have a particular characteristic unless:
(a) a test growing of the variety carried out in Australia has demonstrated
that the variety has that characteristic; or
(aa) a test growing of the variety carried out at a place outside Australia
has demonstrated that the variety has that characteristic and Australia is
required, under an agreement between Australia and the country in which the
test growing was carried out, to accept that the variety has that
characteristic; or
(b) the Secretary is satisfied that:
(i) a test growing of the variety carried out at a place
outside Australia has demonstrated that the variety has that characteristic;
and
(ii) the test growing of the variety carried out at that place
is equivalent to a test growing of the variety carried out in Australia; or
(c) the Secretary is satisfied that:
(i) a test growing of the variety carried out at a place
outside Australia has demonstrated that the variety has that characteristic;
(ii) any test growing of the variety carried out in Australia
would probably demonstrate that the variety has that characteristic; and
(iii) if a test growing of the variety in Australia that would
be sufficient to demonstrate whether the variety has that characteristic were
to be carried out, the test growing would take longer than 2 years.
PLANT VARIETY RIGHTS ACT 1987 - SECT 24
Test growing of plant varieties
SECT
24. (1) Where, in dealing with an application in respect of a plant variety,
the Secretary considers it necessary that there should be a test growing, or a
further test growing, of the variety:
(a) for the purpose of determining whether the plant variety is homogeneous
or stable; or
(b) for the purpose of determining whether the variety will, if grown in
Australia, have a particular characteristic;
the Secretary shall give written notice to the applicant:
(c) stating that the Secretary considers that a test growing, or a further
test growing, as the case may be, of the variety is necessary;
(d) specifying the purpose of the test growing; and
(e) requiring the applicant:
(i) to supply the Secretary with sufficient plants, or
sufficient reproductive material of plants, of the variety, as the case
requires, and with any necessary information, to enable the variety to be test
grown for the purpose so specified; or
(ii) to have the variety test grown for the purpose so
specified and to give the Secretary a copy of the records of observations made
during the test growing;
whichever the Secretary deems appropriate;
and, if the notice contains the requirement referred to in subparagraph (e)
(i) and the applicant complies with the requirement, the Secretary shall
arrange to have the variety test grown.
(2) After the completion of the test growing of a plant variety arranged by
the Secretary, any plants or reproductive material of plants used in, or
resulting from, the test growing which are or is capable of being transported
shall be delivered to the applicant for plant variety rights in respect of
that plant variety.
PLANT VARIETY RIGHTS ACT 1987 - SECT 25
Withdrawal of application
SECT
25. (1) An application may be withdrawn by the applicant.
(2) Where an application is withdrawn after public notice of the application
has been given, the Secretary shall forthwith give public notice of that
withdrawal.
PLANT VARIETY RIGHTS ACT 1987 - DIVISION 3
Division 3 - Grant of Plant Variety Rights
PLANT VARIETY RIGHTS ACT 1987 - SECT 26
Grant of plant variety rights
SECT
26. (1) Subject to this section, where an application for plant variety
rights in respect of a plant variety is accepted:
(a) if the Secretary is satisfied that:
(i) there is such a plant variety;
(ii) the plant variety is a new plant variety;
(iii) the applicant is entitled to make the application;
(iv) the grant of those rights to the applicant is not
prohibited by this Act;
(v) those rights have not been granted to another person;
(vi) there has been no earlier application for those rights
that has not been withdrawn or otherwise disposed of;
(vii) the name of the variety would comply with section 17;
and
(viii) all fees payable under this Act in relation to the
application and the grant have been paid;
the Secretary shall grant those rights to the applicant; or
(b) if the Secretary is not so satisfied - the Secretary shall refuse to
grant those rights to the applicant.
(2) The Secretary shall not grant, or refuse to grant, plant variety rights
in respect of a plant variety unless a period of at least 6 months has elapsed
since the giving of public notice of the application, or, if the application
has been varied in pursuance of a request under subsection 19 (1) in a manner
that the Secretary considers to be significant, a period of 6 months has
elapsed since the giving of public notice of particulars of the variation, or
of the last such variation, as the case requires.
(3) The Secretary shall not refuse to grant plant variety rights unless the
Secretary has given the applicant for the rights a reasonable opportunity to
make a written submission to the Secretary in relation to the application.
(4) Where an objection to the grant of plant variety rights has been lodged
under section 20, the Secretary shall not grant the rights unless the
Secretary has given the person who lodged the objection a reasonable
opportunity to make a written submission to the Secretary in relation to the
objection.
(5) Plant variety rights shall be granted to a person by the issue to that
person by the Secretary of a certificate, signed by the Secretary or by the
Registrar, in a form approved by the Secretary and containing such particulars
of the plant variety to which the rights relate as the Secretary considers
appropriate.
(6) Where plant variety rights are granted to persons who made a joint
application for those rights, those rights shall be granted to those persons
jointly.
(7) Where the Secretary refuses to grant plant variety rights in respect of
a plant variety, the Secretary shall, within 30 days after refusing, give
written notice of the refusal to the applicant for the rights setting out the
grounds for the refusal.
PLANT VARIETY RIGHTS ACT 1987 - SECT 27
Entry of grant of plant variety rights
SECT
27. When the Secretary grants plant variety rights in respect of a plant
variety, the Registrar shall enter in the Register:
(a) a description, or a description and photograph, of a plant of that
variety;
(b) the name of the variety;
(c) the name of the grantee;
(d) the name and address of the breeder;
(e) the address for the service of documents on the grantee for the purposes
of this Act which is shown on the application for the rights;
(f) the day on which the rights were granted; and
(g) such other particulars relating to the grant as the Secretary considers
appropriate.
PLANT VARIETY RIGHTS ACT 1987 - SECT 28
Notice of grant of plant variety rights
SECT
28. Where the Secretary grants plant variety rights, the Secretary shall, as
soon as possible after granting those rights, give public notice of the grant.
PLANT VARIETY RIGHTS ACT 1987 - SECT 29
Effect of grant on certain persons
SECT
29. (1) Where plant variety rights in respect of a plant variety are granted
to a person, another person who was entitled to make an application for those
rights (whether or not a person who orginated that variety independently of
the breeder), or the successor of such another person, is not entitled to any
interest in those rights because of the entitlement to make the application or
because of the grounds of the entitlement, but nothing in this subsection
prevents a person from applying to the Secretary for the revocation of those
rights or from instituting proceedings before a court or the Administrative
Appeals Tribunal in respect of those rights.
(2) Where:
(a) plant variety rights in respect of a new plant variety are granted to a
person; and
(b) another person (in this subsection referred to as the "eligible person")
was entitled, at law or in equity, to have the right to make an application
for those plant variety rights assigned to the eligible person;
then the eligible person is entitled to have those plant variety rights
assigned to the eligible person.
PLANT VARIETY RIGHTS ACT 1987 - DIVISION 4
Division 4 - Miscellaneous
PLANT VARIETY RIGHTS ACT 1987 - SECT 30
Nature of plant variety rights
SECT
30. (1) Plant variety rights are personal property and, subject to any
conditions imposed under section 34, are capable of assignment or of
transmission by will or by operation of law.
(2) An assignment of plant variety rights (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.
(3) Where the grantee of plant variety rights gives another person a licence
in respect of those rights, the licence binds every successor in title to the
interest of the grantee in those rights to the same extent as it was binding
on the grantee of those rights.
PLANT VARIETY RIGHTS ACT 1987 - SECT 31
Assignment of plant variety rights
SECT
31. (1) Where plant variety rights are assigned or transmitted to a person,
the person shall, within 7 days after acquiring those rights, inform the
Registrar in writing that the person has acquired those rights, giving
particulars of the manner in which those rights were acquired, and the
Registrar, if satisfied that the rights have been so assigned or transmitted,
shall amend the Register and enter the name of that person on the Register as
the grantee of those rights.
(2) Where, in accordance with subsection (1), the Registrar enters on the
Register as the grantee of plant variety rights the name of a person who
claims to have acquired those rights, the Registrar shall, within 7 days after
entering the name on the Register, give written notice to that person and to
the person who was the grantee before the entry was made stating that the
entry has been made.
(3) Where the Registrar is not satisfied that plant variety rights have been
assigned or transmitted to a person (in this subsection referred to as the
"claimant") who has informed the Registrar in accordance with subsection (1)
that those rights have been assigned or transmitted to the claimant, the
Registrar shall forthwith:
(a) give written notice to the claimant:
(i) stating that the Registrar is not so satisfied; and
(ii) setting out the grounds on which the Registrar is not so
satisfied; and
(b) give written notice to the grantee of those rights:
(i) setting out particulars of the information given by the
claimant;
(ii) stating that the Registrar is not so satisfied;
and
(iii) setting out the grounds on which the Registrar is not so
satisfied.
(4) A person who informs the Registrar in accordance with subsection (1)
that plant variety rights have been assigned or transmitted to the person
shall give written notice to the Registrar of an address in Australia for the
service of documents on him or her in accordance with this Act and:
(a) where the Registrar enters the name of that person on the Register in
accordance with subsection (1) and that address is different from the address
entered in the Register in accordance with paragraph 27 (e) - the Registrar
shall amend the Register so that the address so given is entered in the
Register as the address for service of documents on the grantee for the
purposes of this Act; or
(b) where the Registrar is not satisfied that those rights have been
assigned or transmitted to that person - the notice to that person under
paragraph (3) (a) shall be given by being posted by pre-paid post as a letter
addressed to the person at that address.
PLANT VARIETY RIGHTS ACT 1987 - SECT 32
Duration of plant variety rights
SECT
32. Subject to this Act, plant variety rights in respect of a plant variety
subsist for a period of 20 years commencing on the day on which the successful
application for plant variety rights in respect of the plant variety was
accepted.
PLANT VARIETY RIGHTS ACT 1987 - SECT 33
Supply of reproductive material etc.
SECT
33. (1) Plant variety rights in respect of a plant variety are subject to
the condition that the grantee of the rights shall comply with any notice
given to the grantee by the Secretary under subsection (2) or (8).
(2) Where plant variety rights are granted in respect of a plant variety,
the Secretary may give the grantee of the rights written notice requiring the
grantee, within 14 days of the giving of the notice or any further time that
is allowed by the Secretary, to cause a specified quantity of reproductive
material of plants of that variety to be delivered, at the expense of the
grantee, to a specified genetic resources centre.
(3) The quantity of reproductive material of plants of a variety specified
in a notice under subsection (2) shall be the quantity that the Secretary
considers would be sufficient to enable that variety to be kept in existence
if there were no other reproductive material of plants of that variety.
(4) Where the reproductive material of plants is delivered to a genetic
resources centre in accordance with the condition imposed on plant variety
rights by subsection (1), the Secretary shall, subject to subsection (6),
cause that material to be stored at a genetic resources centre.
(5) The delivery and storing of the reproductive material of plants in
accordance with this section does not affect the ownership of the material but
that material shall not be dealt with otherwise than for the purposes of this
Act.
(6) The reproductive material of plant stored at a genetic resources centre
may be used by the Secretary for the purposes of this Act, including the
purposes of section 39.
(7) Without limiting subsections (5) and (6), where, in accordance with this
section, the reproductive material of plants is stored at a genetic resources
centre that is a place known as a National Plant Genetic Resources Centre, the
material shall not form part of the collection known as the national gene bank
collection and shall not be used for the purposes of that collection.
(8) Where plant variety rights are granted in respect of a plant variety,
the Secretary may give the grantee of the rights written notice requiring the
grantee, within 14 days of the giving of the notice or any further time that
is allowed by the Secretary, to cause to be delivered to the Secretary a
specimen of a plant of the variety suitable for deposition by the Secretary in
a herbarium.
(9) Where a specimen of a plant is delivered in accordance with the
condition imposed on plant variety rights by subsection (1), the Secretary
shall cause the specimen to be deposited in a herbarium.
PLANT VARIETY RIGHTS ACT 1987 - SECT 34
Plant variety rights subject to conditions
SECT
34. (1) Where the Minister considers it necessary, in the public interest,
that plant variety rights in respect of a new plant variety should be subject
to conditions restricting the assignment of those rights, to conditions
requiring, or relating to, the licensing of persons to sell, or produce for
sale, plants, or reproductive material of plants, of that variety or to other
conditions, the Minister may, at the time when those rights are granted or at
any time while those rights subsist, by instrument under his or her hand,
impose those conditions.
(2) Where the Minister imposes conditions on plant variety rights under
subsection (1):
(a) the Secretary shall give to the grantee a copy of the instrument setting
out those conditions;
(b) the Secretary shall give public notice of those conditions; and
(c) the Registrar shall enter particulars of those conditions in the
Register.
PLANT VARIETY RIGHTS ACT 1987 - SECT 35
Revocation of plant variety rights
SECT
35. (1) The Secretary shall revoke the plant variety rights in respect of a
plant variety if:
(a) the Secretary becomes satisfied that the plant variety was not a new
plant variety or that facts exist which, if known before the grant of those
rights, would have resulted in the refusal of the grant; or
(b) the grantee has failed to pay a prescribed fee payable in respect of
those rights within one month after having been given notice, as prescribed,
that that fee has become payable.
(2) The Secretary may revoke the plant variety rights in respect of a plant
variety if the Secretary is satisfied that:
(a) the grantee has failed to comply, in relation to those rights, with the
condition imposed by section 33 or with any condition imposed under section
34; or
(b) a person to whom those rights have been assigned or transmitted has
failed to comply with section 31.
(3) Where the Secretary revokes plant variety rights in respect of a plant
variety in accordance with this section, the Secretary shall, within 7 days
after the decision was taken, give written notice of the revocation to the
grantee setting out the grounds for the revocation.
(4) The Secretary shall not revoke plant variety rights in accordance with
this section unless and until the Secretary has given the grantee and any
person to whom, the Secretary believes, those rights have been assigned or
transmitted particulars of the grounds for the proposed revocation and given
the grantee and any such person a reasonable opportunity to make a written
submission to the Secretary in relation to the proposed revocation.
(5) The revocation of plant variety rights in respect of a plant variety in
accordance with this section takes effect:
(a) subject to paragraph (b), at the expiration of the period within which
an application may be made to the Administrative Appeals Tribunal for a review
of the revocation; or
(b) if such an application is made to the Administrative Appeals Tribunal -
at the time when the application is withdrawn or finally determined, whether
by the Tribunal or by a court.
(6) Nothing in this section shall be taken to affect the powers of the
Federal Court under subsection 44A (2) of the Administrative Appeals Tribunal
Act 1975 where an appeal is instituted in that court from a decision of the
Administrative Appeals Tribunal in respect of an application referred to in
paragraph (5) (b).
(7) Any person whose interests are affected by the grant of plant variety
rights in respect of a plant variety may apply to the Secretary for the
revocation of those rights in accordance with this section.
(8) The Secretary shall consider any application made under subsection (7)
for the revocation of plant variety rights and, if the Secretary decides not
to revoke the rights, the Secretary shall, within 7 days after the decision
was taken, give written notice of the decision to the applicant setting out
the grounds for the decision.
PLANT VARIETY RIGHTS ACT 1987 - SECT 36
Surrender of plant variety rights
SECT
36. (1) Subject to subsection (2), a grantee of plant variety rights may at
any time, by giving notice to the Registrar, offer to surrender those rights,
and the Registrar, after giving public notice of the offer and giving all
parties interested an opportunity to make a written submission to the
Registrar in relation to the offer, may, if the Registrar thinks fit, accept
the offer and revoke those rights.
(2) Where an action or proceeding under section 41 or 42 in respect of plant
variety rights is pending in a court, the Registrar shall not accept an offer
for the surrender of, or revoke, those rights, except by leave of the court or
by consent of the parties to the action or proceeding.
PLANT VARIETY RIGHTS ACT 1987 - SECT 37
Entry of particulars of revocation etc.
SECT
37. Where:
(a) the revocation of plant variety rights in respect of a plant variety in
accordance with section 35 takes effect;
(b) plant variety rights are revoked in accordance with section 36; or
(c) the Registrar is served with an office copy of an order of a court given
under subsection 41 (3) revoking plant variety rights;
then:
(d) the Registrar shall enter particulars of the revocation in the Register;
and
(e) the Secretary shall give public notice of the revocation.
PLANT VARIETY RIGHTS ACT 1987 - SECT 38
Plant variety rights not to restrict sales for food, fibre, fuel etc.
SECT
38. (1) Notwithstanding that plant variety rights subsist in respect of a
plant variety, any person may:
(a) propagate, grow and use plants of that variety for purposes other than
commercial purposes;
(b) sell plants of that variety for use as food or for another use that does
not involve the growing of the plants or the production of plants of that
variety;
(c) sell reproductive material of plants of that variety for use as food or
for another use that does not involve the production of plants of that
variety;
(d) sell with a farm or other place at which plants of that variety are
grown any plants or reproductive material of plants of that variety at that
place; or
(e) use, and do anything necessary or desirable for the purpose of using,
plants or reproductive material of plants of the variety as an initial source
of variation for the purpose of originating another new plant variety except
where the person makes repeated use of plants or reproductive material of
plants of the first-mentioned variety for the commercial production of the
other variety.
(1A) In paragraph (1) (a), "commercial purpose", in relation to plants of a
plant variety in respect of which plant variety rights referred to in
subparagraph 12 (1) (e) (i) or (ii) subsist, includes the commercial
production of the fruit, flowers, or any other product, of those plants.
(2) The right of a person under paragraph (1) (b) to sell plants of a plant
variety in respect of which plant variety rights subsist includes:
(a) the right of the person to use plants, or reproductive material of
plants, of that variety purchased or otherwise acquired by the person without
any infringement of those plant variety rights to:
(i) produce, otherwise than by asexual means, plants for the
sale; or
(ii) produce plants, or reproductive material of plants, from
which plants for the sale may be derived otherwise than by asexual means; and
(b) the right of the person to use plants, or reproductive material of
plants derived by the person from plants, or reproductive material of plants,
of that variety, purchased or otherwise acquired by the person without any
infringement of those plant variety rights to:
(i) produce, otherwise than by asexual means, plants for the
sale; or
(ii) produce plants, or reproductive material of plants, from
which plants for the sale may be derived otherwise than by asexual means.
(3) The right of a person under paragraph (1) (c) to sell reproductive
material of plants of a plant variety in respect of which plant variety rights
subsist includes:
(a) the right of the person to use plants, or reproductive material of
plants, of that variety purchased or otherwise acquired by the person without
any infringement of those plant variety rights to:
(i) produce, otherwise than by asexual means, reproductive
material of plants for the sale; or
(ii) produce plants, or reproductive material of plants, from
which reproductive material of plants for the sale may be derived otherwise
than by asexual means; and
(b) the right of the person to use plants, or reproductive material of
plants derived by the person from plants, or reproductive material of plants,
of that variety, purchased or otherwise acquired by the person without any
infringement of those plant variety rights to:
(i) produce, otherwise than by asexual means, reproductive
material of plants for the sale; or
(ii) produce plants, or reproductive material of plants, from
which reproductive material of plants for the sale may be derived otherwise
than by asexual means.
(4) Without limiting the generality of paragraph (1) (c), for the purposes
of that paragraph, the use of reproductive material of a plant by way of
allowing it to sprout and then eating it, or using it in the preparation of
food, before it has developed further shall not be taken to be a use that
involves the production of a plant.
PLANT VARIETY RIGHTS ACT 1987 - SECT 39
Protection of public interest in new plant varieties
SECT
39. (1) For the purposes of this Act, the reasonable requirements of the
public with respect to a plant variety in respect of which plant variety
rights subsist shall be deemed to be satisfied if:
(a) where there is no demand or no significant demand for plants of that
variety but there is a demand or a significant demand for reproductive
material of plants of that variety - reproductive material of plants of that
variety of reasonable quality is available for sale to the public at
reasonable prices, or as gifts to the public, in sufficient quantities to meet
demand; or
(b) in any other case - plants, or reproductive material of plants, of that
variety of reasonable quality are available for sale to the public at
reasonable prices, or as gifts to the public, in sufficient quantities to meet
demand.
(2) The grantee of plant variety rights in respect of a plant variety shall,
subject to any conditions imposed under section 34, take all reasonable steps
to ensure that the reasonable requirements of the public with respect to that
plant variety are satisfied.
(3) For the purpose of ensuring that the reasonable requirements of the
public with respect to a plant variety in respect of which plant variety
rights subsist are satisfied, the Secretary, in accordance with subsections
(4) to (10), inclusive, may, on behalf of the grantee of those rights:
(a) license a person or persons whom the Secretary considers appropriate to
sell plants of that variety;
(b) license a person or persons whom the Secretary considers appropriate to
sell reproductive material of plants of that variety;
(c) license a person or persons whom the Secretary considers appropriate to
produce plants of that variety for sale; or
(d) license a person or persons whom the Secretary considers appropriate to
produce reproductive material of plants of that variety for sale;
during such period as the Secretary considers appropriate.
(4) Where, at any time later than 2 years after the grant of plant variety
rights in respect of a plant variety, a person considers that the grantee of
those rights is failing to comply with subsection (2) in relation to that
variety and that the failure affects the interests of that person, that person
may, in writing, request the Secretary to exercise a relevant power or powers
under subsection (3) in relation to that variety.
(5) A request by a person under subsection (4) in relation to a plant
variety shall:
(a) set out the reasons why that person considers that the grantee of plant
variety rights in respect of that variety is failing to comply with subsection
(2);
(b) give particulars of the way in which the person considers that the
failure affects the interests of the person; and
(c) give an address for the purpose of a notice to the person under
subsection (7).
(6) Where a request under subsection (4) is made to the Secretary in
relation to a plant variety, the Secretary shall give the grantee of plant
variety rights in respect of that variety:
(a) a copy of the request; and
(b) a written invitation to furnish to the Secretary, within one month after
the day on which the invitation is given, a written statement setting out
reasons why the Secretary should be satisfied that the grantee:
(i) is complying with subsection (2) in relation to that
variety; or
(ii) will so comply within a reasonable time.
(7) Where a request is made to the Secretary under subsection (4) to
exercise a power or powers under subsection (3) in relation to a plant
variety, the Secretary shall, after considering the request and any statement
furnished by the grantee of plant variety rights in respect of that variety in
response to the invitation under paragraph (6) (b), decide whether or not to
exercise the power or powers concerned and shall, within 30 days after the
decision was taken:
(a) give written notice of his or her decision to the grantee of plant
variety rights in respect of that plant variety setting out the grounds for
the decision; and
(b) cause written notice of his or her decision to be posted by pre-paid
post as a letter addressed to the person who made the request at the address
given by that person in accordance with paragraph (5) (c) setting out the
grounds for the decision.
(8) Where the Secretary proposes to exercise a power under subsection (3) in
relation to a plant variety, the Secretary shall give public notice:
(a) identifying the variety;
(b) setting out particulars of the thing or things that the Secretary
proposes to license persons to do and of the periods for which the Secretary
proposes to license them; and
(c) inviting persons to apply in writing to the Secretary, within one month
after the giving of public notice, to be licensed to do that thing, or to do
any of those things, as the case requires, in relation to that variety;
and the Secretary shall not exercise that power without considering all
applications in response to the invitation.
(9) The Secretary shall not license a person under subsection (3) in
relation to a plant variety unless, at least one month before so doing, the
Secretary:
(a) gave written notice to each person who applied to be licensed in
response to the relevant invitation given under subsection (8); and
(b) gave public notice;
of the name or names of the person or persons whom the Secretary proposes to
license.
(10) A licence granted to a person by the Secretary under subsection (3) on
behalf of the grantee of plant variety rights in respect of a plant variety
shall be granted on such terms and conditions as the Secretary determines,
being terms and conditions that the Secretary considers would be the terms and
conditions of the licence if it were being granted by the grantee in the
normal course of business.
(11) Where:
(a) a licence has been granted to a person under subsection (3) to produce
plants, or reproductive material of plants, of a plant variety; and
(b) the Secretary is satisfied that, unless the powers of the Secretary
under this subsection are exercised, that person will be unable to obtain
reproductive material of plants of that variety at a reasonable price or
without charge;
the Secretary may, on behalf of the grantee of those rights, make available to
that person reproductive material of plants of that variety stored at a
genetic resources centre under subsection 33 (4).
PLANT VARIETY RIGHTS ACT 1987 - SECT 40
Infringement of plant variety rights
SECT
40. Subject to sections 38 and 39, the plant variety rights of a grantee in
respect of a plant variety are infringed by:
(a) a person who, not being licensed by the grantee to sell plants of that
variety, sells, or holds himself, herself or itself out as being willing to
sell, plants of that variety;
(b) a person who, not being licensed by the grantee to sell reproductive
material of plants of that variety, sells, or holds himself, herself or itself
out as being willing to sell, reproductive material of plants of that
variety;
(c) a person who, not being licensed by the grantee to produce plants of
that variety for sale, produces plants of that variety for sale;
(d) a person who, not being licensed by the grantee to produce reproductive
material of plants of that variety for sale, produces reproductive material of
plants of that variety for sale;
(da) a person who, not being licensed by the grantee to produce asexually
plants of that variety for the commercial production of the fruit, flowers, or
any other product, of those plants, so produces plants of that variety for the
commercial production of such fruit, flowers or other product;
(db) a person who, not being licensed by the grantee to produce asexually
reproductive material of plants of that variety for the commercial production
of the fruit, flowers, or any other product, of those plants, so produces
reproductive material of plants of that variety for the commercial production
of such fruit, flowers or other product;
(e) a person who, being a person to whom a licence has been granted in
respect of that plant variety, does not comply with a term or condition of the
licence; or
(f) a person who uses the name of that plant variety, being the name entered
in the Register, in relation to any other plant variety or in relation to any
plant other than a plant of the first-mentioned variety.
PLANT VARIETY RIGHTS ACT 1987 - SECT 41
Actions for infringement of plant variety rights
SECT
41. (1) An action or proceeding for an infringement of plant variety rights
may be instituted in the Court.
(2) A defendant in an action or proceeding for an infringement of plant
variety rights in respect of a plant variety may apply by way of counter-claim
in the action or proceeding for the revocation of the plant variety rights:
(a) on the ground that the plant variety was not a new plant variety; or
(b) on the ground that facts exist which, if known to the Secretary before
the grant of those rights, would have resulted in the refusal of the grant.
(3) If, in an action or proceeding for an infringement of plant variety
rights in respect of a plant variety in which a defendant has applied by way
of counter-claim for the revocation of those rights on a ground referred to in
paragraph (2) (a) or (b), the court is satisfied that the ground exists, the
court may revoke those rights.
(4) Where, in an action or proceeding for an infringement of plant variety
rights, the court, on an application by the defendant by way of counter-claim,
revokes the plant variety rights, the court shall order the defendant to serve
on the Registrar an office copy of the order revoking the plant variety
rights.
PLANT VARIETY RIGHTS ACT 1987 - SECT 42
Declaration as to non-infringement
SECT
42. (1) A person who desires to sell a plant or reproductive material of a
plant, or to produce a plant or reproductive material of a plant for sale,
may, by action in the Court against the grantee of plant variety rights in
respect of a new plant variety, claim a declaration that the sale or
production of the plant or reproductive material, as the case requires, would
not constitute an infringement of those plant variety rights and may do so
although no assertion of the infringement has been made by the grantee of the
plant variety rights.
(2) The Court shall not make a declaration sought in an action under
subsection (1) in relation to a plant or reproductive material of a plant
unless:
(a) the plaintiff:
(i) has applied in writing to the defendant for an admission
in writing to the effect of the declaration sought;
(ii) has furnished the defendant with full particulars in
writing of the plant or reproductive material, as the case may be; and
(iii) has undertaken to pay a reasonable sum for the expenses
of the defendant in obtaining advice in respect of the declaration sought;
and
(b) the defendant has refused or failed to make such an admission.
(3) The costs of all parties in proceedings for a declaration under this
section shall, unless the prescribed court otherwise orders, be paid by the
person seeking the declaration.
(4) The validity of a grant of plant variety rights shall not be called in
question in proceedings for a declaration under this section and the making
of, or refusal to make, the declaration does not imply that the grant of plant
variety rights is, or is not, valid.
PLANT VARIETY RIGHTS ACT 1987 - SECT 43
Jurisdiction of Court
SECT
43. (1) The Court has jurisdiction with respect to matters arising under
this Act in respect of which actions or proceedings may, under this Act, be
instituted in that court and 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.
(2) The relief that the Court may grant in an action or proceeding for
infringement of plant variety rights 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.
(3) The Court may refuse to award damages, or to make an order for an
account of profits, against a person in respect of an infringement of plant
variety rights in relation to a plant variety if the person satisfies the
court that, at the time of the infringement, the person was not aware, and had
no reasonable grounds for suspecting, that plant variety rights existed in
relation to that plant variety.
(4) The regulations may make provision for and in relation to the practice
and procedure of the Court in actions or proceedings under this Act, including
provision prescribing the time within which any action or proceeding may be
instituted, or any other act or thing may be done, and providing for the
extension of any such time.
(5) Subsection (4) shall not be read as limiting 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 not inconsistent with the regulations
referred to in that subsection.
PLANT VARIETY RIGHTS ACT 1987 - PART IV
PART IV - PLANT VARIETY RIGHTS ADVISORY COMMITTEE
PLANT VARIETY RIGHTS ACT 1987 - SECT 44
Establishment of Advisory Committee
SECT
44. (1) There is established by this Act a Committee by the name of the
Plant Variety 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 a genus or species being declared by the regulations to be a
genus or species to which this Act applies; and
(b) to advise the Secretary on such technical matters arising under this
Act, and such other matters relating to the administration of this Act, as the
Secretary refers to the Advisory Committee.
PLANT VARIETY RIGHTS ACT 1987 - SECT 45
Membership of Advisory Committee
SECT
45. (1) The Advisory Committee shall consist of:
(a) the Registrar;
(b) 2 members who, in the opinion of the Minister, are appropriate persons
to represent breeders, and likely breeders, of new plant varieties;
(c) one member who, in the opinion of the Minister, is an appropriate person
to represent producers, and likely producers, of new plant varieties;
(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) 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, shall be appointed by the
Minister.
(3) The members hold office as part-time members.
(4) The members, other than the Registrar, hold office during the pleasure
of the Minister.
(5) A member, other than the Registrar, may resign his or her office by
writing signed by the member and delivered to the Minister.
PLANT VARIETY RIGHTS ACT 1987 - SECT 46
Remuneration and allowances
SECT
46. (1) The members referred to in paragraphs 45 (1) (b), (c), (d) and (e)
shall 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 Tribunals Act
1973.
PLANT VARIETY RIGHTS ACT 1987 - SECT 47
Disclosure of interests
SECT
47. (1) A member who has a direct or indirect pecuniary interest in a matter
being considered at a meeting of the Advisory Committee shall, 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 under subsection (1) in relation to a matter shall:
(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.
PLANT VARIETY RIGHTS ACT 1987 - SECT 48
Meetings
SECT
48. (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, 4 members constitute a quorum.
(3) The Registrar shall preside at a meeting of the Advisory Committee at
which the Registrar is present, but, if the Registrar is not present, the
members present shall elect one of their number to preside at the meeting.
(4) Subject to subsection (2), the procedure to be followed at a meeting of
the Advisory Committee shall be as determined by the Advisory Committee.
PLANT VARIETY RIGHTS ACT 1987 - PART V
PART V - MISCELLANEOUS
PLANT VARIETY RIGHTS ACT 1987 - SECT 49
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