Commonwealth Consolidated Acts

PLANT BREEDER'S RIGHTS ACT 1994 - SECT 39

             (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                    (ab)  the application has been withdrawn; or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                     (b)  if such an application is made to the AAT--the application is withdrawn or finally determined, whether by the AAT or a court.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.