PLANT VARIETY RIGHTS ACT 1987 No. 2, 1987 - SECT 22 Provisional protection

PLANT VARIETY RIGHTS ACT 1987 No. 2, 1987 - SECT 22

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 sub-section
        (2)-at the expiration of the prescribed period after the notice is
        given, whichever occurs first.

(2) Subject to sub-section (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;

   (b)  after the application was made, the applicant sold a plant, or
        reproductive material of a plant, of that variety in Australia
        otherwise than for-

        (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 sub-section (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 sub-section (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 sub-section (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 sub-section 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 sub-section (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 sub-section 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.