Commonwealth Consolidated Acts

PLANT BREEDER'S RIGHTS ACT 1994 - SECT 41

             (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.