Commonwealth Numbered Acts

PLANT BREEDER'S RIGHTS ACT 1994 No. 110, 1994 - SECT 43

43.(1) For the purposes of this Act, a plant variety in which an application
for PBR is made is registrable if:

   (a)  the variety has a breeder; and

   (b)  the variety is distinct; and

   (c)  the variety is uniform; and

   (d)  the variety is stable; and

   (e)  the variety has not been exploited or has been only recently
        exploited.

(2) For the purposes of this section, a plant variety is distinct if it is
clearly distinguishable from any other variety whose existence is a matter of
common knowledge.

(3) For the purposes of this section, a plant variety is uniform if, subject
to the variation that may be expected from the particular features of its
propagation, it is uniform in its relevant characteristics on propagation.

(4) For the purposes of this section, a plant variety is stable if its
relevant characteristics remain unchanged after repeated propagation.

(5) For the purposes of this section, a plant variety is taken not to have
been exploited if, at the date of lodging the application for PBR in the
variety, propagating or harvested material of the variety has not been sold to
another person by, or with the consent of, the breeder.

(6) For the purposes of this section, a plant variety is taken to have been
only recently exploited if, at the date of lodging the application for PBR in
the variety, propagating or harvested material of the variety has not been
sold to another person by, or with the consent of, the breeder:

   (a)  in Australia - more than one year before that date; or

   (b)  in the territory of another contracting party:

        (i)    in the case of trees or vines - more than 6 years before that
               date; or

        (ii)   in any other case - more than 4 years before that date.

(7) Subsection (6) does not apply to a sale by the breeder of a plant variety
of propagating or harvested material of the variety to another person if that
sale is a part of, or related to, another transaction under which the right of
the breeder to make application for PBR in that plant variety is sold to that
other person.

(8) In addition to any other reason for treating a plant variety as a variety
of common knowledge, a variety is to be treated as a variety of common
knowledge if:

   (a)  an application for PBR in the variety has been lodged in a contracting
        party; and

   (b)  the application is not subsequently refused.

(9) A plant variety that is to be treated as a variety of common knowledge
under subsection (8) because of an application for PBR in the variety is to be
so treated from the time of the application.