5.3.4 Ceasing of Provisional Protection

Also in this Chapter:

• 5.3.1 IVDS Submissions
• 5.3.2 Further Period to Submit Detailed Description
• 5.3.3 Part 2 Forms and ACRA, GRC Submission

Key Legislation 

Plant Breeder’s Rights Act 1994:

• s34 Detailed description in support of application to be given to Registrar 

• s37 Test growing of plant varieties 

• s39 Provisional protection 

• s44 Grant of PBR  

Related Chapters 

• 4.1 Scope and Nature of Plant Breeder’s Rights 

• 4.8 Provisional Protection 

• 5.6 Grant or Refusal

On this Page

• Overview

• Grant or refusal of an application 

• Notice under section 39(2)

Overview 

The present page outlines the circumstances in which provisional protection may cease. For further information on when an application for PBR is entitled to provisional protection, see 4.8 Provisional Protection.  

Grant or refusal of an application 

Provisional protection may cease when an accepted application for PBR is granted (s44), or when the application is refused.  

When an application for PBR is granted, the applicant becomes the grantee and enjoys the full scope of rights conferred by a granted PBR as outlined in 4.1 Scope and Nature of Plant Breeder’s Rights. The grantee is also entitled to begin an action or proceeding for any infringement of their plant breeder’s right as defined in s39(6).  

If the Registrar is not satisfied that an accepted application for PBR meets the requirements for grant as set forth in s44, then the Registrar must refuse the application. Provisional protection will cease on the date the application is refused. For further information around the refusal or grant of an application, see 5.6 Grant or Refusal. 

Notice under section 39(2) 

Provisional protection will also cease where the Registrar issues a notification to the applicant under s39(2).  

If the Registrar is satisfied in relation to an application for PBR in a plant variety, that: 

 (a)  PBR will not be granted or is unlikely to be granted to the applicant; or 

 (aa) a decision has been taken under s37(2B)(b) not to proceed with the application; or 

 (ab) the application has been withdrawn; or 

 (b)  the applicant has given an undertaking to a person (whether or not for consideration) not to commence proceedings for infringement of the right of which the applicant is deemed to be the grantee; or 

 (c)  at least 12 months have elapsed since the publication of the detailed description that was given to the Registrar under s34(1); 

the Registrar may notify the applicant that provisional protection will cease to apply to the variety on a day specified in the notification unless, before that time the applicant has made a submission to the Registrar providing reasons why provisional protection should be maintained.