5.3.2 Further Period to Submit Detailed Description

Date Published

Key Legislation

Plant Breeder's Rights Act 1994:

  • s33(2) Withdrawal of application

  • s34 Detailed description in support of application to be given to Registrar
  • s41 Essential derivation for PBR-protected varieties--test growing
  • s41E Essential derivation for non-PBR-protected varieties--test growing

Note:

  • This page relates to practices and process regarding correspondence and withdrawals for applications that were accepted more than 12 months ago, where the proceed date has lapsed more than 12 months ago, wherein the applicant has not filed a detailed description or previously requested an allowance of further time to file one and the Registrar has not yet requested the applicant file a detailed description or submit a request for further time to file one.
  • For further guidance and detailed instructions for issuing correspondence and processing compulsory withdrawals relating to s34 considerations, view 11.4.6.1 Response to Request for a Further Period to Submit Detailed Description. 

Timeframes for filing a compliant detailed description

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Section 34 of the PBR Act 1994 requires a compliant detailed description to be filed within 12 months of an application being accepted or within such further period as the Registrar allows. The detailed description is deemed compliant if it meets the requirements under s34.

Previously the Registrar made implied decisions to allow further time to file a detailed description. These decisions were implied because it was common practice for the Registrar to allow further time and this had been communicated to and experienced by applicants and examiners. To clarify the additional time being allowed and to apply consistency in administrative decision-making, the Registrar now:

  • Provides an express allowance of further time for new applications; and
  • Generally requires the applicant or their agent to request further time to file the detailed description

Regardless of whether the applicant requests further time, the Registrar may allow further time but this should be a recorded decision and communicated to the applicant or their agent.

If the applicant fails to file a compliant detailed description and the Registrar does not explicitly provide the applicant with further time to file one, then the application is deemed to be Withdrawn under s34 of the Act. This means that even if a non-compliant detailed description is filed and the Registrar has not provided the applicant with further time to file one then the application is deemed to be Withdrawn under the Act.

Requirements for a detailed description

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A detailed description of a variety is deemed compliant if it contains the following, as required by s34(4) of the Plant Breeder’s Rights Act 1994:

  • Particulars of the characteristics that distinguish the variety from other plant varieties of common knowledge;
  • Particulars of (i) any test growing carried out to establish that the variety is distinct, uniform and stable, or (ii) any test growing carried out as required under s41 or s41E;
  • If the variety was bred outside Australia, particulars of any test growing outside Australia;
  • Any other particulars required by the approved form.

Detailed descriptions are lodged by QPs via the Interactive Variety Description System (IVDS), with all descriptions initially submitted as a draft Word document for examiner review.

The draft description should be assessed for consistency with the UPOV Test Guidelines and compared with the details provided in the Part 1 application form completed by the applicant or their agent. Where inconsistencies with the Part 1 application form arise, examiners may correct the inconsistency according to the information provided in the Part 1 form and highlight the correction. Examiners should also review evidence including characteristics of the variety and data provided to support the distinctness, uniformity and stability of the variety.

Requesting the applicant file a detailed description or request further time to file one

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The applicant is solely responsible for complying with all relevant timeframes to file a detailed description. These practices are designed to assist applicants but IP Australia’s failure to follow them unfortunately does not supersede the Act which mandates an application is Withdrawn if relevant timeframes are not met.

To assist applicants, the Registrar will issue correspondence to remind the applicant they need to file a detailed description or request further time to file one:
 

  • If the application was accepted more than 12 months ago, and
  • the proceed date lapsed more than 12 months ago; and
  • the applicant has not filed a detailed description or previously requested an allowance of further time to file one; and
  • IP Australia has not yet requested the applicant to file a detailed description or request further time to file one.

In these instances, the Registrar will issue a withdrawal warning as soon as is practicable that provides the applicant with 2 months to either submit the description or request an extension of time to submit a description. Upon issue of a withdrawal warning, an application is considered to become “inactive”, and therefore not eligible for a refund of examination fees when withdrawn by the applicant or the PBR office. 

Allowing further time to file a detailed description

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Section 34 of the PBR Act permits the Registrar to allow further time for filing of a detailed description. Examiners have delegation to execute this power.

The Registrar previously allowed implied extensions of time. However, the Registrar now communicates decisions relating to extensions of time in writing, specifying the additional time.

The Registrar recognises the challenges faced by applicants in meeting legislative requirements, and generally grants an automatic extension of time for filing a detailed description at acceptance. This extension is calculated as the proceed date (date that the Australian trial will be ready for examination or when an Overseas DUS report will be available) from the accepted Part 1 application submission date plus 9 months.  

Applicants may request further time to file a detailed description by completing an extension of time application form and submitting it to IP Australia via the PBR mailbox or post.

Allowance of further time to file a detailed description should be provided when an applicant or their agent has demonstrated that satisfactory progress is being made towards obtaining PBR. They should provide reasoning for why the time extension is necessary and provide supporting documentation. However, examiners have the delegation to allow further time to file a detailed description for any reason and should consult with the Chief of PBR if practical to do so.

Satisfactory examples of supporting documentation demonstrating progress towards granting of PBR, and/or providing reasoning for the required extension of time, could include (but are not limited to):

  • Documentation of ongoing cultivation trials
  • A declaration from the applicant or their agent detailing environmental factors affecting trial progress
  • A declaration from the applicant or their agent explaining personal circumstances affecting progress towards grant of PBR
  • A declaration from the applicant or their agent indicating that varieties required for the trial are in quarantine.
  • Their Qualified Person is no longer accredited and they are actively looking for a new qualified person.

In response to a request for further time, the Registrar will issue one of the following notices:

1. If satisfactory progress is being made towards grant of PBR and reasons for the time extension are supported by documentation: 

A notice allowing further time, with a revised deadline for the relevant Qualified Person (QP) to file the description.

2. If the progress being made towards the granting of PBR and reason for the extension of time provided is unsatisfactory, or not supported by documentary evidence: 

A notice stating that the request for further time is not allowed, reiterating the deadline for submission of a detailed description. If there is sufficient time (not less than 5 working days remaining until the deadline to submit the detailed description), the notice will also provide a deadline for the applicant or their agent to submit additional information to support their request for further time. Using an evidence based approach, the examiner may use their discretion to allow and communicate an alternative deadline.

Failure to file a compliant detailed description in time

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​​​​​Applicants and their agents will receive notices from the Registrar regarding the deadline to either file a detailed description or request further time for submission. These notices will specify deadlines for both actions.   

Failure to file a detailed description, or a request for further time, by the given deadline will result in the Registrar issuing a notice of withdrawal for the application. Refunds of examination fees will not be routinely applied. Refunds may be considered if specifically requested, and the fees are not considered to have been earned during administration of the application. 

If a detailed description is submitted by the given deadline, examiners should ensure that it is compliant with the requirements for detailed descriptions. After review, examiners should contact the relevant Qualified Person (QP) by email to request any necessary corrections and set a deadline for submission of a finalised description. If no compliant description is received by this deadline, the Registrar will issue a notice of withdrawal for the application.

Under section 33(2) of the PBR Act, if an application is withdrawn after public notice of acceptance is given, the Registrar must give public notice of the withdrawal as soon as is practicable. Accordingly, withdrawal processing including updates to the Plant Varieties Journal should be completed in a timely manner.

Amended Reasons

Amended Reason Date Amended

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