4.7 Acceptance or Rejection of PBR Application

Date Published

Part 1 Examination Timeframe and Outcomes

Application for PBR takes the form of a completed PBR Part 1 Application Form. To comply with timeliness commitments, completed Part 1 Application Forms must be assessed and a Part 1 Examination first report issued within 8 weeks of receipt of the application form by IP Australia (not including the end of year office closure period). 

Part 1 Examination reports may either:

  • be clear of any deficiencies, in which case the report is a final acceptance report and the Registrar has accepted the application into provisional protection; or
  • identify one or more deficiencies that must be overcome for the application to proceed to acceptance. 

Applicants or their agents may respond to adverse Part 1 Examination reports in order to address raised deficiencies. These responses will be assessed by a PBR Examiner with a further report issued within 4 weeks of receiving the response. 

If identified deficiencies are not satisfactorily addressed, applications may be recommended for rejection. 

Acceptance of PBR Applications

If the Registrar is satisfied that an application for plant breeder's rights for a variety meets the requirements of s30(2) of the Plant Breeder's Rights Act, including the requirements of s26 as defined in s30(2(b)), then the Registrar must accept the application. 

To obtain acceptance of an application, and consequently provisional protection, it must be established that there is a prima facie case for treating the candidate variety as distinct from all other varieties of common knowledge or VCKs. To apply for a plant breeder's right for a candidate variety, the applicant and/or agent acting on their behalf must submit a completed Part 1 Application Form to the Registrar. This initial application provides information and formalities to satisfy the requirements of s26 of the PBR Act, including details of the origin of the variety and a prima facie case for eligibility of the variety for PBR. A PBR Examiner will assess the completed Part 1 Application Form to determine whether the candidate variety satisfies the requirements of s26 of the Act and to verify that sufficient information has been provided to support a prima facie case for distinctness. 

Provided these requirements are met, the examiner will complete a clear Part 1 Examination Report (final acceptance report) and provide the acceptance delegate with a recommendation that the application is accepted. Acceptance delegates are given the authority to accept applications for PBR that satisfy the legislative requirements outlined above by an Instrument of Delegation exercised by the Chief of PBR under s59 of the PBR Act. 

After acceptance, provisional protection applies to the application for the candidate variety. 

Adverse Part 1 Examination Report

In some cases, the examiner assessing an application for acceptance under s30 of the Plant Breeder's Rights Act is unable to accept the application into provisional protection. 

This may occur if:

  • information or formalities to satisfy the requirements of s26 of the Act as outlined in the Part 1 Application Form have not been satisfactorily completed by the applicant or their agent; or
  • the application fails to establish a prima facie case for treating the candidate variety as distinct from other plant varieties. 

Within 8 weeks of receiving a completed Part 1 Application Form for a candidate variety, the examiner will issue a Part 1 Examination first report outlining any such deficiencies to the applicant or their agent. In most cases the applicant is permitted two opportunities to correct any raised deficiencies, although some flexibility may be allowed in cases where applicants have provided evidence that substantial progress towards resolution of the deficiencies is being made or where the circumstances of the application warrant a further extension or extensions of time. Applicants and agents are encouraged to communicate with the Registrar where such flexibility may be required. 

The applicant or agent has 30 days from the date of receiving the first report to respond to the report and address any deficiencies raised by the examiner. If no response is received after 30 days, a reminder notice will be issued to advise the applicant/agent that there are outstanding issues preventing their application from being accepted and providing the applicant/agent with an additional 30 days to respond. If no response is received after this additional 30 day period, a second reminder notice will be issued referencing the possibility of rejection if the deficiencies are not corrected. 

Applicants or their agents may submit amended application pages by mail, email or by hand. Amended application pages are assessed and a further Part 1 Examination report issued. If deficiencies are still present in the amended application, the further Part 1 Examination report will be an adverse report that provides the applicant or agent with 30 days in which to respond. 

Rejection of PBR Applications

Applications may be rejected by the examiner at any time prior to acceptance. 

If no satisfactory response addressing the raised deficiencies is received within 30 days of the issue of the final reminder notice referenced above, examiners may consider the application for rejection. In such cases the issue is referred to the Chief of PBR. Before the decision is taken to reject the application, the applicant is given a final 30 days to provide satisfactory reasoning as to why the application should not be rejected. 

If the applicant or their agent does not provide a satisfactory response within this deadline, the delegate may proceed to reject the application in accordance with s30 of the Act. The delegate must provide written notice to the applicant of the rejection which outlines the reasons for the rejection under s30(5) of the Act. 

Appeal of Decisions for Rejection

After an application has been rejected, there is a 28 day period where the applicant may apply to the Administrative Review Tribunal for review of the decision for rejection under s77(1(b(v))) of the Plant Breeder's Rights Act. 

If an appeal is lodged, the case is referred to the Chief of PBR. 

Amended Reasons

Amended Reason Date Amended

Fixed link to chapter 4.7.2

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