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PLANT VARIETY RIGHTS ACT 1987 No. 2, 1987 - SECT 42 Declaration as to non-infringement

PLANT VARIETY RIGHTS ACT 1987 No. 2, 1987 - SECT 42

Declaration as to non-infringement
42. (1) A person who desires to sell a plant or reproductive material of a
plant, or to produce a plant or reproductive material of a plant for sale,
may, by action in the Court against the grantee of plant variety rights in
respect of a new plant variety, claim a declaration that the sale or
production of the plant or reproductive material, as the case requires, would
not constitute an infringement of those plant variety rights and may do so
although no assertion of the infringement has been made by the grantee of the
plant variety rights.

(2) The Court shall not make a declaration sought in an action under
sub-section (1) in relation to a plant or reproductive material of a plant
unless-

   (a)  the plaintiff-

        (i)    has applied in writing to the defendant for an admission in
               writing to the effect of the declaration sought;

        (ii)   has furnished the defendant with full particulars in writing of
               the plant or reproductive material, as the case may be; and

        (iii)  has undertaken to pay a reasonable sum for the expenses of the
               defendant in obtaining advice in respect of the declaration
               sought; and

   (b)  the defendant has refused or failed to make such an admission.

(3) The costs of all parties in proceedings for a declaration under this
section shall, unless the prescribed court otherwise orders, be paid by the
person seeking the declaration.

(4) The validity of a grant of plant variety rights shall not be called in
question in proceedings for a declaration under this section and the making
of, or refusal to make, the declaration does not imply that the grant of plant
variety rights is, or is not, valid.