Commonwealth Consolidated Acts

PLANT BREEDER'S RIGHTS ACT 1994 - SECT 55

             (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.