PLANT VARIETY RIGHTS ACT 1987 No. 2, 1987 - SECT 39 Protection of public interest in new plant varieties

PLANT VARIETY RIGHTS ACT 1987 No. 2, 1987 - SECT 39

39. (1) For the purposes of this Act, the reasonable requirements of the
public with respect to a plant variety in respect of which plant variety
rights subsist shall be deemed to be satisfied if-

   (a)  where there is no demand or no significant demand for plants of that
        variety but there is a demand or a significant demand for reproductive
        material of plants of that variety-reproductive material of plants of
        that variety of reasonable quality is available for sale to the public
        at reasonable prices, or as gifts to the public, in sufficient
        quantities to meet demand; or

   (b)  in any other case-plants, or reproductive material of plants, of that
        variety of reasonable quality are available for sale to the public at
        reasonable prices, or as gifts to the public, in sufficient quantities
        to meet demand.

(2) The grantee of plant variety rights in respect of a plant variety shall,
subject to any conditions imposed under section 34, take all reasonable steps
to ensure that the reasonable requirements of the public with respect to that
plant variety are satisfied.

(3) For the purpose of ensuring that the reasonable requirements of the public
with respect to a plant variety in respect of which plant variety rights
subsist are satisfied, the Secretary, in accordance with sub-sections (4) to
(10), inclusive, may, on behalf of the grantee of those rights-

   (a)  license a person or persons whom the Secretary considers appropriate
        to sell plants of that variety;

   (b)  license a person or persons whom the Secretary considers appropriate
        to sell reproductive material of plants of that variety;

   (c)  license a person or persons whom the Secretary considers appropriate
        to produce plants of that variety for sale; or

   (d)  license a person or persons whom the Secretary considers appropriate
        to produce reproductive material of plants of that variety for sale,
        during such period as the Secretary considers appropriate.

(4) Where, at any time later than 2 years after the grant of plant variety
rights in respect of a plant variety, a person considers that the grantee of
those rights is failing to comply with sub-section (2) in relation to that
variety and that the failure affects the interests of that person, that person
may, in writing, request the Secretary to exercise a relevant power or powers
under sub-section (3) in relation to that variety.

(5) A request by a person under sub-section (4) in relation to a plant variety
shall-

   (a)  set out the reasons why that person considers that the grantee of
        plant variety rights in respect of that variety is failing to comply
        with sub-section (2);

   (b)  give particulars of the way in which the person considers that the
        failure affects the interests of the person; and

   (c)  give an address for the purpose of a notice to the person under
        sub-section (7).

(6) Where a request under sub-section (4) is made to the Secretary in relation
to a plant variety, the Secretary shall give the grantee of plant
variety rights in respect of that variety-

   (a)  a copy of the request; and

   (b)  a written invitation to furnish to the Secretary, within one month
        after the day on which the invitation is given, a written statement
        setting out reasons why the Secretary should be satisfied that the
        grantee-

        (i)    is complying with sub-section (2) in relation to that variety;
               or

        (ii)   will so comply within a reasonable time.

(7) Where a request is made to the Secretary under sub-section (4) to exercise
a power or powers under sub-section (3) in relation to a plant variety, the
Secretary shall, after considering the request and any statement furnished by
the grantee of plant variety rights in respect of that variety in response to
the invitation under paragraph (6) (b), decide whether or not to exercise the
power or powers concerned and shall, within 30 days after the decision was
taken-

   (a)  give written notice of his or her decision to the grantee of plant
        variety rights in respect of that plant variety setting out the
        grounds for the decision; and

   (b)  cause written notice of his or her decision to be posted by pre-paid
        post as a letter addressed to the person who made the request at the
        address given by that person in accordance with paragraph (5) (c)
        setting out the grounds for the decision.

(8) Where the Secretary proposes to exercise a power under sub-section (3) in
relation to a plant variety, the Secretary shall give public notice-

   (a)  identifying the variety;

   (b)  setting out particulars of the thing or things that the Secretary
        proposes to license persons to do and of the periods for which the
        Secretary proposes to license them; and

   (c)  inviting persons to apply in writing to the Secretary, within one
        month after the giving of public notice, to be licensed to do that
        thing, or to do any of those things, as the case requires, in relation
        to that variety, and the Secretary shall not exercise that power
        without considering all applications in response to the invitation.

(9) The Secretary shall not license a person under sub-section (3) in relation
to a plant variety unless, at least one month before so doing, the Secretary-

   (a)  gave written notice to each person who applied to be licensed in
        response to the relevant invitation given under sub-section (8); and

   (b)  gave public notice, of the name or names of the person or persons whom
        the Secretary proposes to license.

(10) A licence granted to a person by the Secretary under sub-section (3) on
behalf of the grantee of plant variety rights in respect of a plant variety
shall be granted on such terms and conditions as the Secretary determines,
being terms and conditions that the Secretary considers would be the terms and
conditions of the licence if it were being granted by the grantee in the
normal course of business.

(11) Where-

   (a)  a licence has been granted to a person under sub-section (3) to
        produce plants, or reproductive material of plants, of a
        plant variety; and

   (b)  the Secretary is satisfied that, unless the powers of the Secretary
        under this sub-section are exercised, that person will be unable to
        obtain reproductive material of plants of that variety at a reasonable
        price or without charge, the Secretary may, on behalf of the grantee
        of those rights, make available to that person reproductive material
        of plants of that variety stored at a genetic resources centre under
        sub-section 33 (4).