5.7 Revocation of PBR

Date Published

Key Legislation

Plant Breeder's Rights Act 1994:

  • s8 Approved persons

  • s21 Registrar must be notified of an assignment of PBR

  • s37 Test growing of plant varieties

  • s40 Essential derivation for PBR-protected varieties - declaration

  • s44 Grant of PBR

  • s49 PBR may be subject to conditions

  • s50 Revocation of PBR

  • s51 Entry of particulars of revocation

  • s77 Applications for review

Plant Breeder's Rights Regulations 1994:

Related Chapters:

Overview

The Registrar is required to revoke PBR in a plant variety or a declaration of essential derivation from another plant variety (see 7. Essentially Derived Varieties (EDVs)) if the Registrar becomes aware of facts or conditions as set forth in s50 of the Plant Breeder's Rights Act 1994.

A PBR can only be revoked if it has already been granted. If the Registrar becomes aware of facts that would similarly affect an application for a not yet granted PBR in the event that the application is granted, the Registrar may instead refuse to grant PBR (see 5.6 Grant or Refusal) or withdraw the application for PBR (see 5.5.2 Compulsory Withdrawals). 

Circumstances where PBR may be revoked

The Registrar must revoke PBR in a plant variety or a declaration of essential derivation if:

  • The Registrar becomes satisfied of facts that, if known before the grant of PBR or the declaration of essential derivation, would have resulted in a refusal to grant or a refusal to make the declaration;

  • The grantee has failed to pay a fee payable in respect of their right or declaration within 30 days of being given notice that the fee has become payable;

  • In the event of assignment or transfer of PBR, the person the PBR has been assigned or transmitted to has failed to comply with the requirements of s21;

  • The grantee of PBR in the variety has failed to comply with the requirements of a notification issued under s37; or

  • The grantee of PBR in the variety has failed to comply with a condition imposed under s49. 

Facts that would have resulted in refusal to grant or to make a declaration of essential derivation

If the Registrar becomes aware of any facts or evidence that, if known before grant, would mean the PBR or declaration of essential derivation fails to meet the requirements set forth in s44 or s40 of the Act respectively, the Registrar must revoke the PBR or declaration under s50. Further information of the requirements for grant of PBR or declaration of essential derivation can be viewed at 5.6 Grant or Refusal and 7. Essentially Derived Varieties (EDVs). 

Failure to pay fees

If the grantee of a PBR has been given notice that a fee has become payable with respect to their PBR, they have 30 days from the date the notice was issued to pay the fee. If the fee has not been paid within 30 days, the Registrar must revoke PBR in the variety. 

Renewal fees

The PBR Office will issue the following correspondence notifying PBR grantees of outstanding renewal fees:

  • renewal notice 30 days before the anniversary of their PBR grant; and

  • a final renewal notice within 2 months of the anniversary of grant.

 

If the grantee of PBR does not pay the prescribed annual fee for renewal of their PBR (see Schedule 1 of the Plant Breeder's Rights Regulations 1994) within 30 days of receiving the final renewal notice, the Registrar will take steps to revoke their PBR. At the time of revocation, the PBR is taken to have been surrendered under s51(2). 

Failure to comply with section 21

As set forth in s21 of the Act, the Registrar must be notified of an assignment of PBR. This means that if a person claims PBR was assigned or transferred to them, they must inform the Registrar in writing of the assignment or transfer with particulars of how the PBR was acquired. The written notice must also include an address in Australia or New Zealand for service of documents. 

This written notice must be provided to the Registrar within 30 days of acquiring PBR. If these requirements are not met, the Registrar must revoke PBR in the variety. 

Failure to comply with notification issued under section 37

The Registrar may decide, in dealing with a request for revocation of PBR, that test growing or further test growing should be conducted for the variety in question. In such cases, the Registrar will issue a notification under s37 to the person making the request for revocation and to the grantee as well as any other parties the Registrar considers appropriate if the test growing will be a comparative test growing. 

The notification issued by the Registrar will specify the purpose of the test growing to be conducted and may require the person receiving the notification to:

  • Supply the Registrar with sufficient plants or propagating material of the variety and any necessary information to arrange a test growing; or

  • Make arrangements for a qualified person or QP (also known as an approved person under s8) to supervise the test growing, including providing the QP with plants or propagating material and instructing the QP to provide and certify copies of records of observations made during the test growing to the Registrar. 

The person receiving a notification under s37 must comply with the notification's requirements within 2 years of the date the notification was issued if the plant variety is a tree or vine, or 12 months from the date of issue for any other species of plant. 

Failure to comply with conditions imposed under section 49

Under s49, the Minister may impose conditions on a PBR that is to be, or has been, granted as considered necessary in the public interest. If the grantee fails to comply with any such conditions, the Registrar must revoke PBR in the variety. 

Record and public notice of revocation

As set forth in s51 of the Act, the Registrar must enter details of any revocation of PBR conducted in accordance with s50 in the Register and give public notice of the revocation. Entry of particulars and public notice must also be recorded for any rights taken to have been surrendered under s51(2). 

Appeals

A decision to revoke, or refuse to revoke, PBR or a declaration of essential derivation is reviewable by the Administrative Review Tribunal (ART) under s77. 

Amended Reasons

Amended Reason Date Amended

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