Annex 1 - Applicable Sections of the PBR Act

Date Published

Definitions

"plant variety" means a plant grouping (including a hybrid):

             (a)  that is contained within a single botanical taxon of the lowest known rank; and

             (b)  that can be defined by the expression of the characteristics resulting from the genotype of each individual within that plant grouping; and

             (c)  that can be distinguished from any other plant grouping by the expression of at least one of those characteristics; and

             (d)  that can be considered as a functional unit because of its suitability for being propagated unchanged.

Note:          Plant groupings for the purposes of this definition include genetically modified plant groupings.


Section 11: General nature of PBR

Subject to sections 16, 17, 18, 19 and 23, PBR in a plant variety is the exclusive right, subject to this Act, to do, or to license another person to do, the following acts in relation to propagating material of the variety:

a. produce or reproduce the material;

b. condition the material for the purpose of propagation;

c. offer the material for sale;

d. sell the material;

e. import the material;

f. export the material;

g. stock the material for the purposes described in paragraph (a), (b), (c), (d), (e) or (f).

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).


Section 14: Extension of PBR to harvested material in certain circumstances

             (1)  If:

                     (a)  propagating material of a plant variety covered by PBR is produced or reproduced without the authorisation of the grantee; and

                     (b)  the grantee does not have a reasonable opportunity to exercise the grantee's right in relation to the propagating material; and

                     (c)  material is harvested from the propagating material;

section 11 operates as if the harvested material were propagating material.

             (2)  Subsection (1) applies to so much of the material harvested by a farmer from propagating material conditioned and reproduced in the circumstances set out in subsection 17(1) as is not itself required by the farmer, for the farmer's own use, for reproductive purposes.


Section 15: Extension of PBR to products obtained from harvested material in certain circumstances

                   If:

                     (a)  propagating material of a plant variety covered by PBR is produced or reproduced without authorisation of the grantee; and

                     (b)  the grantee does not have a reasonable opportunity to exercise the grantee's rights in relation to the propagating material; and

                     (c)  material is harvested from plants grown from the propagating material but the grantee does not have, in the circumstances set out in section 14, a reasonable opportunity of exercising the grantee's rights in the harvested material; and

                     (d)  products are made from the harvested material;

section 11 operates as if those products were propagating material.



Section 27: Names of new plant varieties

  1. If PBR has not been granted in another contracting party in a plant variety before an application for that right in that variety is made in Australia, the name set out in the application must comply with subsections (4), (5), (6) and (7).
  2. If, before making an application in Australia for PBR in a plant variety, PBR has been granted in that variety in another contracting party:
    1. the name of the variety set out in the Australian application must be the name under which PBR was first granted in another contracting party; but 
    2. there may, and, if the name referred to in paragraph (a) does not comply with subsections (4), (5), (6) and (7) there must, also be included in the application a synonym, additional to the name of the variety.

3. The synonym must be a name determined in accordance with subsections (4), (5), (6) and (7) as if the variety had not been the subject of a grant of PBR in another contracting party.

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.

4. A name (including a synonym), in respect of a plant variety, must be a word or words (whether invented or not) with or without the addition of either or both of the following:

a. a letter or letters that do not constitute a word;

b. a figure or figures.

5. A name (including a synonym), in respect of a plant variety must not:

a. be likely to deceive or cause confusion, including confusion with the name of another plant variety of the same plant class; or

b. be contrary to law; or

c. contain scandalous or offensive matter; or

d. be prohibited by regulations in force at the time of the application; or

e. be or include a trade mark that is registered, or whose registration is being sought, under the Trade Marks Act 1995, in respect of live plants, plant cells and plant tissues. [emphasis added]

6. A name (including a synonym), in respect of a plant variety must comply with the International Code of Botanical Nomenclature and subsidiary codes.

7. A name (including a synonym), in respect of a plant variety must not consist of, or include:

a. the name of a natural person living at the time of the application unless the person has given written consent to the name of the variety; or

b. the name of a natural person who died within the period of 10 years before the application unless the legal personal representative of the person has given written consent to the name of the variety; or

c. the name of a corporation or other organisation, unless the corporation or other organisation has given its written consent to the name of the variety.




Section 53: Infringement of PBR

  1. Subject to sections 16, 17, 18, 19 and 23, PBR in a plant variety is infringed by:
    1. a person doing, without, or otherwise than in accordance with, authorisation from the grantee of the right, an act referred to in a paragraph of section 11 in respect of the variety or of a dependent variety; or
    2. a person claiming, without, or otherwise than in accordance with, authorisation from the grantee of that right, the right to do an act referred to in a paragraph of section 11 in respect of that variety or of a dependent variety; or
    3. a person using a name of the variety that is entered in the Register in relation to:

i. any other plant variety of the same plant class; or

ii. a plant of any other variety of the same plant class.

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).

2. If a plant variety (the derived variety) has been declared to be an essentially derived variety of another plant variety (the initial variety), the reference in paragraphs (1)(a) and (b) to authorisation from the grantee of the right means, in relation to the derived variety, authorisation from both the grantee of PBR in the derived variety and from the grantee of PBR in the initial variety.

3. In this section, a reference to the grantee of PBR in a plant variety includes a reference to a person who has, by assignment or transmission, become the holder of that right.


Amended Reasons

Amended Reason Date Amended

Additions to Annex 1: definitions, section 14, section 15 of PBR Act.