Commonwealth Consolidated Acts

PLANT BREEDER'S RIGHTS ACT 1994 - SECT 40

             (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.