Commonwealth Numbered Acts

PLANT BREEDER'S RIGHTS ACT 1994 No. 110, 1994 - SECT 44

44.(1) If:

   (a)  an application for PBR in a plant variety is accepted; and

   (b)  after examining the application (including the subsequent detailed
        description) and any objection to the application, the Secretary is,
        or continues to be, satisfied that:

        (i)    there is such a variety; and

        (ii)   the variety is a registrable plant variety within the meaning
               of section 43; and

        (iii)  the applicant is entitled to make the application; and

        (iv)   the grant of that right is not prohibited by this Act; and

        (v)    that right has not been granted to another person; and

        (vi)   the name of the variety complies with section 27; and

        (vii)  propagating material of that variety has been deposited for
               storage, at the expense of the applicant, in a
               genetic resource centre approved by the Secretary; and

        (viii) if the Secretary so requires, a satisfactory specimen plant of
               the variety has been supplied to the herbarium; and

        (ix)   all fees payable under this Act in respect of the application,
               examination and grant have been paid; the Secretary must grant
               that right to the applicant.

(2) If:

   (a)  an application for PBR in a plant variety is accepted; and

   (b)  the plant variety is a variety of a species indigenous to Australia;
        the Secretary must require supply of a satisfactory specimen plant of
        the variety to the herbarium.

(3) If:

   (a)  an application for PBR in a plant variety is accepted; and

   (b)  the Secretary is not satisfied of all of the matters referred to in
        paragraph (1)(b); the Secretary must refuse to grant that right to the
        applicant.

(4) The Secretary must not grant or refuse to grant PBR in a plant variety
until at least 6 months after the giving of public notice of the detailed
description of the variety.

(5) If:

   (a)  an application for PBR in a plant variety has been varied under
        section  31 ; and

   (b)  the variation relates to the detailed description of the variety that
        has been given to the Secretary; and

   (c)  the Secretary has given public notice of the variation; the Secretary
        must not grant, or refuse to grant, PBR in the variety until 6 months
        after giving public notice of the variation or of the last such
        variation.

(6) If an objection to an application for PBR is made under section 35, the
Secretary must give the applicant 30 days, starting when a copy of the
objection is given to the applicant, or such longer period as the Secretary
considers to be reasonable in the circumstances, to provide an answer to the
objection.

(7) A quantity of propagating material of a plant variety that is lodged with
a genetic resource centre must be sufficient to enable that variety to be kept
in existence if there were no other propagating material of plants of that
variety.

(8) The delivery and storage of propagating material of a plant variety does
not affect the ownership of the material but the material must not be dealt
with otherwise than for the purposes of this Act.

(9) The propagating material of a plant stored at a genetic resource centre
may be used by the Secretary for the purposes of this Act, including the
purposes of section 19.

(10) PBR is granted to a person by the issue to that person by the Secretary
of a certificate in an approved form, signed by the Secretary or the
Registrar, containing such particulars of the plant variety concerned as the
Secretary considers appropriate.

(11) If the PBR is granted to persons who make a joint application for the
right, the right is to be granted to those persons jointly.

(12) If the Secretary refuses to grant PBR in a plant variety, the Secretary
must, within 30 days of so refusing, give written notice to the applicant:

   (a)  telling the applicant of the refusal; and

   (b)  setting out the reasons for the refusal. Note: A decision under this
        section to grant, or refuse to grant, PBR in a plant variety is
        reviewable by the AAT under section 77.