An Act to amend the Plant Breeder’s Rights Act 1994, and for related purposes
Note: An electronic version of this Act is available in SCALEplus (http://scaleplus.law.gov.au/html/comact/browse/TOCN.htm)
1 Short title...........................................................................................1 2 Commencement.................................................................................1 3 Schedule(s)........................................................................................2 Schedule 1—Plant Breeder’s Rights Act 1994 3 Part 1—Amendments 3 Part 2—Application provisions 13
An Act to amend the Plant Breeder’s Rights Act 1994, and for related purposes
This Act may be cited as the Plant Breeder’s Rights Amendment Act 2002.
This Act commences on the day after it receives the Royal Assent.
Plant Breeder’s Rights Amendment Act 2002 No. 148, 2002
Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Insert: indigenous means:
1 Subsection 3(1) (definition of synonym)
Repeal the definition, substitute:
synonym, in relation to the name of a plant variety, means a name that:
2 Subsection 3(1)
Insert: test growing includes a comparative test growing.
3 At the end of section 11
Add:
Note: In certain circumstances, the right conferred by this section extends to essentially derived varieties (see section 12), certain dependent plant varieties (see section 13), harvested material (see section 14) and products obtained from harvested material (see section 15).
4 Section 18
Repeal the section, substitute:
18 Restriction on grantee’s rights in certain circumstances
(1) If:
Schedule 1 Plant Breeder’s Rights Act 1994 Part 1 Amendments
then the grantee is not entitled to exercise PBR in the plant variety against the person in respect of that act.
equitable remuneration, in relation to an act done in relation to propagating material of a plant variety, means an amount:
5 At the end of section 23
Add:
6 Paragraph 26(2)(g)
Repeal the paragraph, substitute:
(g) the name of the location at which the variety was bred; and (ga) the name of each variety (the parent variety) used in the
breeding program including, in respect of each parent variety:
(gb) a brief description of the manner in which the variety was bred; and
7 At the end of subsection 26(2)
Add:
Note: The information given under paragraph (ga) is not available to the public under section 36.
8 Paragraph 27(2)(b)
Omit “, by which the variety will also be known and sold in Australia”.
9 After subsection 27(3)
Insert:
(3A) If, before making an application in Australia for PBR in a plant variety, PBR has not been granted in that variety in another contracting party, a synonym may also be included in the application.
10 Subsection 27(4)
Schedule 1 Plant Breeder’s Rights Act 1994 Part 1 Amendments
Omit “A name under subsection (1), or a synonym under subsection (3)”, substitute “A name (including a synonym)”.
11 Paragraph 27(5)(e)
Omit “Trade Marks Act 1955”, substitute “Trade Marks Act 1995”.
12 Subsections 27(5), (6) and (7)
Omit “A name under subsection (1), or a synonym under subsection (3)”, substitute “A name (including a synonym)”.
13 Subsections 29(1) and (2)
Repeal the subsections, substitute:
(1) If:
application treated as the priority date for the purposes of the local application, subject to subsections (3) and (4).
14 Subsections 29(3) and (4)
Omit “to the priority date referred to in subsection (2)”, substitute “to have the date of lodgment of the foreign application treated as the priority date for the purposes of the local application”.
15 Paragraph 30(5)(b)
Omit “the application” (first occurring), substitute “the applicant”.
16 At the end of section 34
Add:
(7) Subsection (6) does not apply to an applicant if the plant variety to which the application relates is in quarantine under the Quarantine Act 1908 when the examination fee becomes payable. Instead, the applicant must pay the prescribed examination fee within 12 months after the plant variety is released from quarantine.
17 At the end of section 36
Add:
(3) However, this section does not entitle a person to inspect the part of the application that contains the information referred to in paragraph 26(2)(ga) or to have a copy of the part of the application containing that information, unless the person is:
18 Subsection 37(1)
Omit all the words after “relates, the” (other than the note), substitute: Secretary:
19 After subsection 37(2)
Insert:
Schedule 1 Plant Breeder’s Rights Act 1994 Part 1 Amendments
(2A) A person to whom a notice is sent under this section must comply with the requirements of the notice:
(2B) If a person, without reasonable excuse, fails to comply with the requirements of a notice issued under this section, the Secretary may:
Note: A decision not to further proceed with the application, objection or request for revocation is reviewable by the AAT under section 77.
20 Paragraphs 37(5)(b) and (c)
Repeal the paragraphs, substitute:
21 After paragraph 39(2)(a)
Insert: (aa) a decision has been taken under paragraph 37(2B)(b) not to proceed with the application; or (ab) the application has been withdrawn; or
22 After paragraph 39(2)(b)
Insert: or (c) at least 12 months have elapsed since the publication of the detailed description that was given to the Secretary under subsection 34(1);
23 Subsections 43(5) and (6)
Omit “propagating or harvested material”, substitute “plant material”.
24 At the end of subsection 43(6)
Add:
Note: For the definition of sell see subsection 3(1).
25 Subsection 43(7)
Omit “propagating or harvested material”, substitute “plant material”.
26 After subsection 43(7)
Insert:
(7A) Subsection (6) does not apply to a sale of plant material of a plant variety to a person by, or with the consent of, the breeder if:
(7B) Subsection (6) does not apply to a sale of plant material of a plant variety to a person by, or with the consent of, the breeder if the sale is part of an agreement under which the person agrees to use plant material of that variety for the sole purpose of evaluating the variety in one or more of the following tests or trials:
(7C) Subsection (6) does not apply to a sale of plant material of a plant variety to a person by, or with the consent of, the breeder if:
(a) the sale only involves plant material that is a by-product or surplus product of one or more of the following:
Schedule 1 Plant Breeder’s Rights Act 1994 Part 1 Amendments
(iii) tests or trials covered by subsection (7B); and
(b) the plant material is sold:
27 Paragraph 43(8)(b)
Repeal the paragraph, substitute:
(b) the application is proceeding, or has led, to the grant of PBR.
28 At the end of section 43
Add:
(10) In this section:
plant material, in relation to a plant variety, means one or more of
the following:
29 Paragraph 48(2)(c)
Omit “section 39”, substitute “section 40”.
30 Subsection 49(1)
Omit “that the Minister proposes to make, or an existing grant of PBR”, substitute “, whether proposed or made”.
31 After paragraph 50(2)(a)
Insert: (aa) the Secretary is satisfied that the grantee, without reasonable excuse, has failed to comply with the requirements of a notice under section 37; or
32 After subsection 53(1)
Insert:
(1A) To avoid doubt, an infringement of PBR in a plant variety under paragraph (1)(c) can include using a synonym in relation to the name of a plant variety, if that synonym is entered in the Register under paragraph 46(1)(b).
33 Subsection 54(1)
Omit “may be begun in the Court”, substitute “may be begun in the
Court only by the grantee”.
34 After paragraph 63(2)(a)
Insert: (aa) at the request of the Minister, to advise the Minister on the question of whether an existing, or proposed, grant of PBR should be subject to conditions; and
34A Paragraph 64(1)(e)
Repeal the paragraph, substitute:
34B Subsection 65(1)
Omit “and (e)”, substitute “, (e), (f) and (g)”.
34C Subsection 67(2)
Repeal the subsection, substitute:
(2) At a meeting of the Advisory Committee, 5 members constitute a quorum.
35 Subsection 64(4)
Omit “2”, substitute “3”.
36 Paragraph 77(1)(a)
Schedule 1 Plant Breeder’s Rights Act 1994 Part 1 Amendments
Omit “subsection 49(1)”, substitute “subsection 49(2)”.
37 After subparagraph 77(1)(b)(viii)
Insert: (viiia) under paragraph 37(2B)(b) not to proceed further with an application, objection or request for revocation; or
38 Article 14(1)(a)(vii) of the Convention as set out in Schedule 1
Omit “(iv)”, substitute “(vi),”.
39 Application of item 4
The amendment made by item 4 applies in relation to an act done on or after the commencement of that item.
40 Application of item 16
The amendment made by item 16 applies in relation to:
41 Application of items 18, 19 and 31
The amendments made by items 18, 19 and 31 apply in relation to a decision that there should be a test growing or further test growing that is made on or after the commencement of those items.
42 Application of item 20
The amendment made by item 20 applies in relation to a test growing begun on or after the commencement of that item.
43 Application of items 21 and 22
The amendments made by items 21 and 22 apply in relation to:
44 Application of items 23, 25, 26 and 28
The amendments made by items 23, 25, 26 and 28 apply in relation to a sale that occurs on or after the commencement of those items.
45 Application of item 27
The amendment made by item 27 applies in relation to an application made before, on or after the commencement of that item.
[Minister’s second reading speech made in— Senate on 13 March 2002 House of Representatives on 12 December 2002]
(65/02)