PLANT VARIETY RIGHTS ACT 1987 No. 2, 1987 - SECT 3 Interpretation

PLANT VARIETY RIGHTS ACT 1987 No. 2, 1987 - SECT 3

3. (1) In this Act, unless the contrary intention appears-

"accepted", in relation to an application, means accepted by the Secretary
under section 18;

"Advisory Committee" means the Plant Variety Rights Advisory Committee
established by section 44;

"applicant", in relation to an application, means the person for the time
being shown in the application as the person making the application;

"application" means an application under section 15 for plant variety rights
in respect of a new plant variety to which this Act applies;

"breeder", in relation to a new plant variety, means-

   (a)  subject to paragraph (c), in the case of a variety originated by one
        person only-that person;

   (b)  subject to paragraph (c), in the case of a variety originated by 2 or
        more persons (whether jointly, independently at the same time,
        independently at different times or otherwise)-each of those persons;
        or

   (c)  in the case of a variety originated-

        (i)    by a person in the course of performing duties or functions as
               a member or employee of a body (whether incorporate or
               unincorporate); or

        (ii)   by 2 or more persons in the course of performing duties as
               members or employees of such a body,
the body of which that person is a member or employee, or of which those
persons are members or employees, as the case may be;

"Convention" means the International Convention for the Protection of New
Varieties of Plants, a copy of the English text of which is set out in the
Schedule;

"Court" means the Federal Court of Australia;

"genetic resources centre" means-

   (a)  a place known as a Plant Genetic Resources Centre; or

   (b)  a place that is a genetic resources centre because of a declaration in
        force under sub-section 10 (1);

"grantee", in relation to plant variety rights, means the person for the time
being entered on the Register as the grantee of those rights;

"member" means a member of the Advisory Committee, and includes the Registrar;

"new plant variety" means a plant variety that-

   (a)  was originated by a person;

   (b)  is homogeneous having regard to the particular features of its sexual
        reproduction or vegetative propagation;

   (c)  is stable; and

   (d)  is distinguishable by one or more important morphological,
        physiological or other characteristics from all other plant varieties
        whose existence was a matter of public knowledge at the time when the
        application in respect of the variety was made;

"plant" does not include fungus, alga or bacterium;

"plant variety" includes cultivar, clone, hybrid and strain;

"plant variety rights" means the rights specified in section 12;

"Register" means the Register of Plant Variety Rights kept in pursuance of
section 9;

"Registrar" means the Registrar of Plant Variety Rights;

"reproductive material", in relation to a plant, means-

   (a)  a seed of that plant;

   (b)  a cutting from that plant; or

   (c)  any other part, or product, of that plant, from which another plant
        can be produced;

"Secretary" means the Secretary to the Department;

"sell", in relation to a plant or reproductive material of a plant, includes
let on hire and exchange by way of barter;

"successor", in relation to a breeder of a new plant variety, means a person
to whom the right of the breeder to make an application for plant variety
rights in respect of that plant variety has been assigned or transmitted;

"will" includes a codicil.

(2) For the purpose of this Act, a plant variety in respect of which an
application has been made shall be taken to be stable if, and only if, plants
of the variety remain true to the description of a plant of the variety given
in the application-

   (a)  except where paragraph (b) applies-after repeated reproduction or
        propagation of plants of the variety; or

   (b)  where the application specifies a particular cycle of reproduction or
        multiplication-at the end of each of those cycles.

(3) For the purposes of this Act, where a plant variety is originated by the
selective breeding of plants, the person who carried out that breeding shall
be taken to have originated that variety.

(4) For the purposes of this Act, where a plant variety is originated by a
humanly induced genetic mutation, the person who induced that mutation shall
be taken to have originated that variety.

(5) Where-

   (a)  a person carries on activities in relation to particular plants or
        particular reproductive material of plants in the hope that a
        plant variety derived from those plants or that material will
        originate by natural processes; and

   (b)  a plant variety so derived, or apparently so derived, originates by
        natural processes, that person shall be taken to have originated the
        plant variety referred to in paragraph (b).

(6) A reference in this Act to a test growing of a plant variety is a
reference to a test involving-

   (a)  the growing, or the production and growing, of plants, or of 2 or more
        generations of plants, of that variety at a place that is, and under
        conditions that are, appropriate for the growing of plants of that
        variety;

   (b)  the observation of the characteristics, and the condition, of the
        plants grown at the various stages in their growth; and

   (c)  the recording of those observations.

(7) Where, for the purposes of this Act, the Secretary or another person
(including a court and the Administrative Appeals Tribunal) is required to be
satisfied that a plant variety in respect of which an application has been
made is a new plant variety, that person shall, for the purpose of deciding
whether the person is so satisfied, assume-

   (a)  that all the plant varieties whose existence was a matter of public
        knowledge when the application was made were constituted by, and
        constituted only by, the plant varieties that were in existence at the
        time when the application was made; and

   (b)  that the only plant varieties that were in existence at the time when
        the application was made were the plant varieties of the existence of
        which at that time that person is aware after making such inquiries,
        and consulting such publications readily available in Australia, as
        that person considers appropriate.