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Plant Breeder's Rights Amendment Bill 2002

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2002

 

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

SENATE

 

 

 

 

 

 

 

PLANT BREEDER'S RIGHTS AMENDMENT BILL 2002

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

(Circulated by the authority of the Minister for Agriculture, Fisheries and Forestry, the Hon Warren Truss MP)

 



PLANT BREEDER'S RIGHTS AMENDMENT BILL 2002

 

GENERAL OUTLINE

 

The Plant Breeder's Rights (PBR) scheme encourages innovation in plant breeding through the grant of a limited commercial monopoly to breeders of new varieties.  This monopoly is a negative right to exclude others from doing certain acts relating to the breeder’s innovation.

 

The amendments to the Plant Breeder's Rights Act 1994 (PBRA) clarify the rights of plant breeders in certain circumstances where restrictions are imposed; enhance the access of breeders to the PBR scheme; and improve the administration of the PBRA and of the PBR scheme.  All amendments commence after Royal Assent.

 

Clarifying the Rights of Plant Breeders

 

The amendments are predominantly administrative and include a significant clarification to the PBRA (section 18).  Section 11 of the PBRA establishes that the breeder has the right to disallow acts of production, reproduction, conditioning, offering for sale, sale, import, export, and stocking in relation to the above of the propagating material of the plant variety.  As an exemption to the provisions of section 11, the current section 18 does not require the breeder's authorisation for any action that enables propagating material to be used as either a food/fuel or for any other purpose that does not involve propagation.

 

Section 18 was designed to acknowledge public interest concerns regarding the limitations that the breeder might place on the use of their propagating material as, say, food (for example, it is not in the public interest for a breeder to disallow bread making).  However, some parties interpret the current section 18 to allow normal commercial activities involving propagating material (eg the trading of grain that eventually become food) so that the breeder is denied any opportunity to exercise their right.  This is not the intent of the legislation, which is fundamentally aimed at ensuring that the breeder has an opportunity to gain reward for their innovation.  Deletion of the current section 18 will clarify intent, remove the possibility of misinterpretation, and better align the PBRA with Australia’s membership of the International Convention for the Protection of New Varieties of Plants 1991 (UPOV 91), on which the PBRA is based.

 

In a separate amendment a new provision is proposed (to be inserted as section 18) to the effect that t he breeder is able to exercise their right of authorisation for acts under section 11, except where that right is restricted by other Commonwealth, State or Territory legislation.  When such legislation restricts the breeder’s right and authorises a person to do an act that would normally be subject to the breeder’s authorisation, equitable remuneration must be paid to the breeder.   This amendment will better align the PBRA with UPOV 91 with the just outcome that the breeder is rewarded in such circumstances (item 4) .

Concurrent operation of legislation is common.  Legally enforceable Commonwealth, State and Territory legislation operate concurrently with intellectual property rights such as PBR, producing a desirable balance between the rights of the innovator and broader public interest concerns.

 

PBR is a negative right to exclude others from doing certain acts relating to the innovation, thereby providing the PBR owner with the opportunity to gain a commercial reward.  It is not, per se , a positive right to do the acts.  If concurrent legislation also provides for the disallowance of an act which falls within the scope of the PBR owner to disallow, then both legislations can operate although the act itself cannot occur.

 

For example, a PBR owner in a cannabis variety may exercise their (negative) right of disallowance, preventing everyone else from selling the variety.  However, a State/Territory may employ a concurrent law to prevent the owner from selling the variety, because selling cannabis is a criminal offence in the jurisdiction concerned.  The state authority concerned has no intention of selling the variety itself, the breeder has exercised their right, no sales occur and no reward for the innovation is achieved.  Similar situations exist in respect of PBR and other Commonwealth legislation (for example, quarantine laws).

 

In the above example, reward for the PBR owner is not an issue, as the State/Territory does not intend to do the act that the PBR owner would normally have the power to disallow.  However, the PBRA does not explicitly address circumstances where Commonwealth/State/Territory legislation does intend that the act will be done, as opposed to simply preventing it.

 

An illustration of this problem arises when the PBR owner in a major export variety may exercise their right of disallowance, preventing everyone else from exporting.  However, State legislation may prevent the PBR owner from exporting.  The theoretical result is a ‘deadlock’ where no exports occur.

 

The proposed new section 18 clarifies existing policy intent that PBR should not be exercised contrary to the public interest, inter alia , guarding against the possibility that exports cannot occur.  This is achieved by introducing an explicit restriction on the exercise of the PBR owner’s right of disallowance (provided equitable remuneration is negotiated and paid to the PBR owner) if the operation of concurrent legally enforceable legislation empowers a third party to do an act, for example, to export the variety.

 

Amendments to section 23 are linked to the amendment to section 18 clarifying that the rights of the breeder are exhausted following payment of equitable remuneration, except in those instances where the variety is propagated through more than one generation (item 5).



 

Enhancing the Access of Breeders to the Plant Breeder's Rights Scheme

 

Currently a synonym is protected if the Plant Breeder's Right in the variety has been granted in a UPOV contracting party other than Australia.  In the interest of equity, the amendment allows for protection of a synonym for varieties first lodged in Australia, but not yet granted overseas (item 9).

 

Currently the applicant must pay an examination fee no later than 12 months after the application has been accepted.  This is appropriate in most circumstances as the applicant can defray the cost by commercialising the variety while completing the PBR application process.  The same opportunity is not available for applicants whose varieties are in quarantine.  For some species, quarantine may last for several years and in extreme cases quarantine may be up to seven years.  In such cases, payment of the examination fee is a disincentive to the introduction of elite overseas varieties and therefore detracts from one of PBR’s objectives, that is ‘to increase access to the world’s best varieties’.  The amendment provides parity between local and imported varieties by proposing that the time limit to pay examination fees on imported varieties be deferred for a maximum of 12 months after the variety has been released from quarantine (item 16).

 

Currently there is no authority to require provision of propagating material for testing against other varieties, although not to do so frustrates the orderly administration of the PBRA.  The amendment requires all relevant persons to supply minimum amounts of material to an applicant.  Some conditions are envisaged, ie supply of material should not take longer than 2 years for trees and vines and 12 months for all other species (items 18 and 19).  Existing provisions require the return of all material once the test growing has been completed.

 

The practice of testing varieties in farmers' paddocks prior to application lodgment is widespread.  Often farmers exchange the use of their land for the residue of the harvest once the experiment is completed and these (and other similar) practices may be thought of as 'sales'.  This leads to the possibility that eligibility of varieties for PBR is endangered even though such 'sales' are related to development, multiplication, research, etc.  This amendment provides that materials derived from testing/research/development activities are not considered as sales and therefore do not limit a variety's eligibility for PBR (items 26).  In addition, the coverage of these provisions is extended beyond propagating and harvested material to include products obtained from harvested material (item 28).

 

The PBRA is silent on who may initiate infringement actions.  The amendment empowers the grantee to initiate infringement action (item 33).



 

Improving the Administration of the PBRA

 

Amendments protect commercially sensitive information on the application form from public scrutiny and also provide for only a broad description of the names of parent varieties to be publicly available (item 6).

 

Current provisions may not be sufficiently explicit to prevent the possibility of the 'priority date' for lodgement of an application for protection to stretch beyond twelve months from the date of the original application.  The amendment clarifies that the priority date for lodgement of an application is calculated from the date of lodgement of the original application made in another UPOV contracting party (item 13)

 

The amendment clarifies that costs should be recovered from the party who has not proven their case in an objection/request for revocation (item 20).

 

In a number of circumstances there is limited discretion to notify an applicant that protection has ceased.  This includes when a description and examination fee has been provided but an applicant then stalls the progress of an application indefinitely, thereby avoiding the certificate and annual fees but still enjoying provisional protection.  The amendment increases the Secretary's discretion to notify an applicant failing to complete the formalities within 12 months of the publication of the variety's description that protection will cease (items 21 and 22).

 

Currently the subject of an application must be treated as a "variety of common knowledge" unless it is “subsequently refused”.  Many applications are withdrawn before grant. Consequently they have not been “refused”, but neither have they been confirmed as being new varieties.  It is inappropriate that such varieties should be considered as varieties of common knowledge because their characteristics are not generally known.  The amendment removes the mandatory requirement of section 43 for treating “withdrawn” applications, or any applications that do not fulfil the definition of a variety, as varieties of common knowledge (item 27).

 

The current maximum renewable term for membership of the Plant Breeder's Rights Advisory Committee is 2 years.  This is inconsistent with appointments made to other comparable bodies and does not allow maximum utilisation of the competence developed by the Committee.  A period of 3 years is consistent with appointments in other comparable bodies and will promote greater efficiency (item 35).

 

A number of the amendments are of a minor nature.  They make consequential changes from other amendments, make language or cross-references explicit, correct transcription errors, make definitions and simplify language.  Such amendments are to be found under items 1, 2, 3, 7, 8, 10, 11, 12, 14, 15, 17, 18, 23, 24, 25, 29, 30, 31, 32, 34, 36, 37, and 38.



 

FINANCIAL IMPACT STATEMENT

 

There are no foreseeable financial implications for the Commonwealth arising from the amendments to the Plant Breeder's Rights Act 1994 other than any savings from improvements to the program.  Implications for the plant breeding industry arising from amendments to section 18 are set out below in the Regulation Impact Statement.

 

REGULATION IMPACT STATEMENT

 

AMENDMENTS TO THE PLANT BREEDER'S RIGHTS ACT 1994

INCORPORATED IN THE PLANT BREEDER'S RIGHTS AMENDMENT BILL 2002

 

1.         Background

 

The granting of intellectual property rights on living organisms is underpinned by international law.  The International Convention for the Protection of New Varieties of Plants 1991 (UPOV 91) establishes international intellectual property protection for breeders of plant varieties.  The Plant Breeder’s Rights Act 1994 (PBRA) was enacted as a necessary step to Australia’s current membership of the 1991 Convention.

 

The PBRA establishes intellectual property rights for the breeder, thereby giving the opportunity for commercialisation through right of disallowance of specific activities in relation to new plant varieties, essentially in the same way that patent legislation operates.  However, it does not mandate how, when, or to what extent that commercialisation should occur other than that the public must have reasonable access to the protected variety.

 

The scheme allows breeders to be granted rights through application for registration of new plant varieties, subject to their meeting certain strict conditions.  Plant breeder's rights encourage the development of new plant varieties by providing an opportunity for the breeder to recoup their investment of time and money.

 

In this way the PBRA promotes investment in plant breeding, secures access to elite varieties from overseas and speeds technology transfer.  PBRA underpins the competitiveness and sustainability of Australian agriculture and performs an important function in relation to Australia’s intellectual property development aspirations.

 

Innovation in plant breeding serves the public interest.  For example, new varieties are created that are better suited to Australian conditions or meet market needs. This leads to an efficient and competitive agricultural sector providing higher yields, using fewer pesticides and developing new and different products.  Consumers and producers benefit and the breeder is rewarded.

 

Like all intellectual property schemes, plant breeder's rights are granted for a limited period of time, at the end of which varieties become public property.  The breeder’s right is balanced by public interest considerations including: controls against possible abuse; assurance that varieties are publicly available; no requirement for authorisation of the plant breeder for the use of a variety for private, non-commercial or research purposes, including its use in the breeding of further new varieties.

 

The Australian plant breeder’s rights legislation protects a wider range of species than comparable legislation in any other UPOV compliant country (283 genera; 500+ species).  Use of the PBR scheme is entirely voluntary and registration costs are fully recovered from application fees.  The scheme is preferred for most plant breeders, being cost effective and particularly suited to living matter.  By contrast, only about 5 new varieties are patented each year in Australia.

 

Growth in registrations under the PBRA since its enactment in 1994 has been impressive.  More than 3,300 applications for registration have been received with one new variety added each day

·         317 new applications were recorded in 2000-01 (21% up on 1998)

·         up to 100 new breeders enter the scheme each year

·         approximately 60% of all applications are from overseas

·         most applications are from the private sector

·         at least 20 new varieties in the major export crops category are being registered per annum ~ with 680 new varieties of field crops and pastures processed since the inception of the scheme.

 

The majority of amendments contained in the Plant Breeder's Rights Amendment Bill 2002 are administrative and have minimal impact.  This Regulation Impact Analysis focuses on the principal amendment to the PBRA (section 18).

 

2.                   The Problem - Misinterpretation of Section 18

 

The problem in relation to section 18 has been highlighted by two recent High Court actions.  The cases have been triggered by the interaction of the ‘export right’ provided under the PBRA and the ‘export and statutory marketing powers’ of the state based Statutory Marketing Authorities (SMAs).  The first case was brought on behalf of the breeder to confirm the primacy of the breeder's right of authorisation over that of commercial interests in respect of food/fuel not used for propagation, (including commercial interests established under state legislation).  This case has been remitted to the Federal Court .   The second case, brought by a State Authority as a direct response to the first action, questioned the validity of the PBRA.  The High Court has unanimously upheld the validity of the PBRA.

 

Section 11 of the PBRA establishes that the breeder has the right to disallow acts of production, reproduction, conditioning, offering for sale, sale, import, export, and stocking in relation to the above of the propagating material of the plant variety

 

As an exemption to the provisions of section 11, the current section 18 does not require the breeder's authorisation for any action that enables propagating material to be used as either a food/fuel or for any other purpose that does not involve propagation.  Section 18 was designed to acknowledge public interest concerns regarding the limitations that the breeder might place on the use of their propagating material as, say, food (disallowing bread making). 

 

However, some parties misinterpret the current section 18 to allow normal commercial activities involving propagating material (eg the trading of commodities that eventually become food) such that the breeder is denied the opportunity to exercise their right.  This was not the intent when framing the legislation, which is fundamentally aimed at ensuring that the breeder has the opportunity to gain reward for their innovation.  This has led to the situation where the breeder’s right to seek reward for their innovation is not being recognised.  While the possibility of misinterpretation continues, further denial of the breeder’s right of authorisation and non-payment for their innovation may continue.  Moreover, further legal challenges cannot be ruled out.

 

In a further amendment a new provision is proposed (to be inserted as section 18) to the effect that t he breeder is able to exercise their right of authorisation for acts under section 11, except where that right is restricted by other Commonwealth, State or Territory legislation.  When such legislation restricts the breeder’s right and authorises a person to do an act that would normally be subject to the breeder’s authorisation, equitable remuneration must be paid to the breeder.   This amendment will better align the PBRA with UPOV 91 with the just outcome that the breeder is rewarded in such circumstances, and is entirely consistent with the intent of the legislation.

 

3.         Objectives

 

The aim of the proposed amendments is to clarify existing legislation in a way which will remove the scope for misinterpretation of the PBRA and which will create an environment conducive to further investment in plant breeding in Australia resulting in benefits for the broader community.

 

The focus is on removing the possibility of misinterpretation of section 18 as permitting unauthorised commercialisation of propagating material and on ensuring reward for the breeder’s innovation in circumstances where their right is restricted.

 

4.         Options

 

The scope to implement a regulatory solution is limited by the need for consistency with the principles of National Competition Policy and with the obligations of the UPOV Convention.  The amendments maintain the balance between commercial and public interest, which is a fundamental feature of the PBRA and better align the PBRA with the Convention.

 

The Attorney-General's Department has considered the proposed amendments.  The Office of Parliamentary Counsel has assisted in the development of the proposed amendments and the Office of International Law has confirmed that the amendments meet Australia's international commitments under UPOV 91.

 

5.         Impact Analysis

 

Plant breeding is critical to Australia's capacity to meet increasing world demand for food and fibre through improved yields and quality characteristics.  Statistics on investment in plant breeding are not available.  Since the introduction of the PBRA the number of new plant varieties protected under the PBR scheme has increased with over twenty new varieties being added each year in the category of major export crops.  However, this rate of increase is at risk because of the uncertainty generated by the misinterpretation of section 18.

 

The value of the loss of royalty payment to the plant breeder, in respect of the current legal dispute in the Federal Court, cannot be specified at this time because it is the subject of legal proceedings.

 

Estimates of what order of intellectual property payments may be involved cannot be made.  The number of varieties subject to commercial arrangements is unknown and confidentiality of arrangements is a barrier.  Some idea of the dimension of the potential problem can be gleaned from the following.

 

Typically, in the grains sector, the industry talks in terms of royalty payments of around $1 per tonne, although this may vary considerably, up or down, depending on the premium that the variety attracts.  The plant variety in question in the High Court actions is a barley variety.  Australian exports of barley are estimated at 3.9 million tonnes valued at $1,029m in 2000-01.

 

If the uncertainty that currently exists is not clarified, a precedent could be set, perhaps endangering payments on other varieties, including on Australia's largest export crop, wheat, estimated to total 23.8 million tonnes valued at $5.2 billion in 2000-01.  If this were to occur it would be a strong disincentive for future investment in Australia's cropping industries and, eventually, would have an adverse affect on major agricultural exports as innovative new varieties fail to come on to the Australian market.

 

Investors in plant breeding are following the legal dispute over the exercise of PBR closely, since the outcome will determine the level of risk attached to current and to future investments.  Potential investors in new varieties (including representatives of major organisations who are well aware of the problem) are unlikely to invest until the PBRA is clarified.  Approximately sixty per cent of applications for new varieties in Australia derive from overseas interests.  Thus the negative effects of the section 18 issue impact directly on potential flows of investment linked to new and improved varieties from abroad.



Who is Affected by the Problem - Key Stakeholders

 

The key stakeholders likely to be affected by amendments to the PBRA are:

 

(a)        Breeders/Licensees and Investors.

 

Deletion of the current section 18 will remove confusion and provide the right environment for breeders to negotiate commercial contracts that build on the framework of the PBRA.  The new section 18 is unlikely to come into play often but does contain specific provision for breeders to receive equitable remuneration when their authorisation rights are restricted in the public interest in certain circumstances.  These changes will ensure just treatment for plant breeders and provide inducement for future generations of innovative plant breeders in their endeavours.  It will also remove the disincentive to investment, which is important, given that most innovative varieties are being developed/introduced in conjunction with overseas investors.

 

(b)       Farmers, Statutory Marketing Authorities, Manufacturers, Processors and Exporters.

 

Growers, and agencies that represent growers, will be clear that a royalty payment is necessary for the use of the plant breeder's innovation.  The access of growers, manufacturers, processors, exporters and overseas customers to improved varieties and to their harvested product will be enhanced as new varieties come onto the market.

 

(c)        Consumers.

 

Consumers generally will benefit from the stimulus given to the creation and availability of a wider range of plant varieties with designer characteristics arising from increased investment in the plant industry.  The main benefits are those of wider choice and enhanced product.

 

(d)        Commonwealth and State Governments.

 

The concurrent operation of PBR legislation with that of other Commonwealth/State/Territory legislation will be clarified.

 

(e)        Other Government Agencies.

 

No other Government agencies have expressed opposition to the amendments. 

 

Costs of Implementing the Amendments

 

Minimal.  Amendments to the legislation should not add to the costs of the Commonwealth.

 

 

6.         Conclusions and Recommendation

 

The aim of the proposed amendments is to clarify existing legislation in a way that will remove the scope for misinterpretation of the PBRA.  This will create an environment conducive to further investment in plant breeding in Australia, improvement in Australian competitiveness and benefit for the broad community.  In so doing it will reduce the potential for further conflict involving the Commonwealth's PBRA and State legislation.

 

It is recommended that the current section 18 of the PBRA be deleted.  The proposed new section 18 is modelled on Article 17 of UPOV 91, to the effect that the plant breeder must receive equitable remuneration when the exercise of their PBR right is restricted in certain circumstances.

 

7.         Consultation

 

The Department of Agriculture Fisheries and Forestry has circulated the proposed amendments widely reflecting the diversity of industries that utilise plant varieties as building blocks as well as food producing industries.  There has been widespread support for the proposed amendments, including from the Standing Committee on Agriculture and Resource Management Task Force, which surveyed a broad range of representative organisations covering breeders, users and consumers.

 

The proposed amendments also have the support of the Plant Breeder's Rights Advisory Committee (PBRAC), which represents similar groups and provides advice to the Minister for Agriculture Fisheries and Forestry.  Representative organisations that support the amendments are the ABB Grain Limited, Horticulture Australia Limited, AWB Limited, Bureau of Sugar Experiment Stations, Grains Council of Australia, National Agricultural Commodities Marketing Association Limited, Pastoralists and Graziers Association, and the Seed Industry Association of Australia.

 

Agricultural industry is anticipating the introduction of the amendments positively as they will facilitate commercial arrangements based on the PBRA, including through a system of end point royalties.

 

The limited concerns that have been expressed are based on misunderstanding of the current legislation and/or have been put forward by those who have been enjoying a ‘free ride’ at cost to investment in Australia’s plant breeding industry and to Australian competitiveness.

 

8.         Implementation and Review

 

It is intended to introduce amendments to the PBRA as soon as possible.  The PBRAC will monitor the efficacy of amendments to the PBRA on a continuing basis.



NOTES ON CLAUSES

 

Clause 1 - Short Title

 

Provides, subject to this section, for the Act to be cited as the Plant Breeder's Rights Amendment Act 2002 .

 

Clause 2 - Commencement

 

Provides that the Act commences on the day after it receives the Royal Assent.

 

Clause 3 - Schedule (s)

 

Provides that each Act that is specified in the Schedule is amended or repealed as provided in the Schedule.

 

SCHEDULE 1 - AMENDMENT OF THE PLANT BREEDER'S RIGHTS ACT 1994

 

Item 1  Subsection 3(1)

 

This item simplifies the definition of 'synonym' and clarifies that a variety only has to be known or sold (not both) to qualify as a variety of common knowledge.

 

Item 2  Subsection 3(1)

 

This item defines test growing.

 

Item 3  Section 11

 

This item makes explicit the existing links in the operation of sections 12, 13, 14 and 15 with section 11.

 

Item 4  Section 18

 

This item ensures that the breeder is able to exercise their right of authorisation under section 11 except in circumstances when the breeder's right is restricted by Commonwealth, State or Territory legislation.  When that legislation authorises a person to do an act that would normally be subject to the grantee’s authorisation, equitable remuneration must be paid to the grantee.

 

Item 5  Section 23

 

This item effects consequential changes arising from the amendment to section 18 clarifying that the rights of the breeder are exhausted following payment of equitable remuneration except in those instances where the variety is propagated through more than one generation.

Item 6  Paragraph 26(2)(g)

 

This item ensures that certain confidential information on the application for protection is not available to the public and that only broad descriptions of the parent varieties are available to the public.

 

Item 7  Subsection 26(2)

 

This item effects a consequential change arising from changes to paragraph 26(2)(g).

 

Item 8  Paragraph 27(2)(b)

 

This item deletes incorrect wording consequential to changes in item 1, subsection 3(1).

 

Item 9  Subsection 27(3)

 

This item allows a synonym for varieties lodged in Australia, but not yet granted overseas.

 

Item 10  Subsection 27(4)

 

This item tidies up superfluous wording and makes cross-references consistent.

 

Item 11 Paragraph 27(5)(e)

 

This item updates the reference to the Trade Marks Act 1955 to the latest revision of that Act.

 

Item 12  Subsection 27(5) (6) and (7)

 

This item parallels item 10 by tidying up superfluous wording and makes cross-references consistent.

 

Item 13  Subsection 29(1) and (2)

 

This item explicitly prevents the possibility of the 'priority date' for lodgement of an application for protection stretching beyond twelve months from the date of the original application made in another UPOV contracting party.

 

Item 14  Subsection 29(3) and (4)

 

This item makes consequential changes arising from item 12 changes under subsection 29(1) and (2).

 



Item 15  Paragraph 30(5)(b)

 

This item corrects a transcription error.

 

Item 16  Section 34

 

This item provides that the time limit to pay examination fees on imported varieties be deferred for a maximum of 12 months after the variety has been released from quarantine.

 

Item 17  Section 36

 

This item implements a consequential change arising from changes under item 6 and clarifies who has access to confidential information on the application.

 

Item 18  Subsection 37(1)

 

This item empowers the Secretary to notify all relevant persons to supply minimum amounts of plant material for test growing to an applicant.

 

Item 19  Subsection 37(2)

 

This item provides for compliance in respect of the notification to supply material under items 18 and 21 and the time frames within which compliance should be undertaken.  It also cross-references this item with section 77 provisions for review by the Administrative Appeals Tribunal (AAT).

 

Item 20  Paragraphs 37(5)(b) and (c)

 

This item clarifies that costs should be recovered from the party who has not proven their case in an objection/request for revocation.

 

Item 21  Paragraph 39(2)(a)

 

This item increases the circumstances in which the Secretary has discretion to notify an applicant that protection will cease.

 

Item 22  Paragraph 39(2)(b)

 

This item increases the Secretary's discretion to notify an applicant that protection will cease in relation to the time that has elapsed since publication of a description.

 

Item 23  Subsection 43(5) and (6)

 

This item incorporates propagating, harvested material, or products of harvested material of a variety under one-expression ‘plant material’.

 

Item 24  Subsection 43(6)

 

This item makes a cross-reference to the definition of the term ‘sell’.

 

Item 25  Subsection 43(7)

 

This item incorporates propagating, harvested material, or products of harvested material of a variety under one-expression ‘plant material’.

 

Item 26  Subsection 43(7)

 

This item provides that materials derived from testing/research/development activities are not considered as sales and therefore do not limit a variety's eligibility for PBR.

 

Item 27  Paragraph 43(8)(b)

 

This item recognises that the common practice of withdrawal of an application for a variety, about which little may be known, should not result in that variety being considered as a "variety of common knowledge".

 

Item 28  Section 43

 

This item states that the expression ‘plant material’ encompasses propagating material, harvested material or products obtained from harvested material of the variety.

 

Item 29  Paragraph 48(2)(c)

 

This item corrects cross-reference errors.

 

Item 30  Subsection 49(1)

 

This item clarifies that the Minister does not grant PBR but is empowered under subsection (1) to impose conditions on existing and future grants.

 

Item 31  Paragraph 50(2)(a)

 

This item makes consequential changes arising from changes to section 37 under items 21 and 22.

 

Item 32  Subsection 53(1)

 

This item explicitly makes the unauthorised use of a synonym an infringement.

 



Item 33  Subsection 54(1)

 

This item nominates the grantee as having responsibility for initiating infringement action.

 

Item 34  Paragraph 63(2)(a)

 

This item clarifies that the Plant Breeder's Rights Advisory Committee may provide advice on matters referred to them by the Minister under relevant provisions.

 

Item 35  Subsection 64(4)

 

This item extends the maximum renewable term of appointment for Plant Breeder's Rights Advisory Committee members from 2 to 3 years.

 

Item 36  Paragraph 77(1)(a)

 

This item corrects cross-reference errors.

 

Item 37  Subparagraph 77(1)(b)(viii)

 

This item cross-references to item 22 changes under subsection 37(2) making a decision by the Secretary reviewable by the AAT.

 

Item 38  Article 14(1)(a)(vii) of the Convention as set out in Schedule 1

 

This item corrects a transcription error.