PLANT VARIETY RIGHTS ACT 1987 No. 2, 1987
PLANT VARIETY RIGHTS ACT 1987 No. 2, 1987 - TABLE OF PROVISIONS
TABLE OF PROVISIONS PART I-PRELIMINARYSection 1. Short title 2. Commencement 3. Interpretation 4. Act to bind Crown 5. Extent of Act PART II-ADMINISTRATION 6. Registrar of Plant Variety Rights 7. Delegation 8. Certain persons not to acquire plant variety rights 9. Register of Plant Variety Rights 10. Genetic resources centres 11. Public notice PART III-PLANT VARIETY RIGHTS Division 1-Preliminary 12. Plant variety rights 13. Plant variety rights to be granted in relation to certain varieties only 14. Plant variety rights not to be granted in respect of varieties previously sold Division 2-Applications for Plant Variety Rights 15. Application for plant variety rights 16. Form of application 17. Names of new plant varieties 18. Lodging of applications 19. Variation of application 20. Objections to grant of plant variety rights 21. Inspection of applications and objections 22. Provisional protection 23. Characteristics of plant varieties originated outside Australia 24. Test growing of plant varieties 25. Withdrawal of application Division 3-Grant of Plant Variety Rights 26. Grant of plant variety rights 27. Entry of grant of plant variety rights 28. Notice of grant of plant variety rights 29. Effect of grant on certain persons Division 4-Miscellaneous 30. Nature of plant variety rights 31. Assignment of plant variety rights 32. Duration of plant variety rights 33. Supply of reproductive material, &c. 34. Plant variety rights subject to conditions 35. Revocation of plant variety rights 36. Surrender of plant variety rights 37. Entry of particulars of revocation, &c. 38. Plant variety rights not to restrict sales for food, fibre, fuel, &c. 39. Protection of public interest in new plant varieties 40. Infringement of plant variety rights 41. Actions for infringement of plant variety rights 42. Declaration as to non-infringement 43. Jurisdiction of Court PART IV-PLANT VARIETY RIGHTS ADVISORY COMMITTEE 44. Establishment of Advisory Committee 45. Membership of Advisory Committee 46. Remuneration and allowances 47. Disclosure of interests 48. Meetings PART V-MISCELLANEOUS 49. Inspection of Register 50. Agents may act in plant variety rights matters 51. Service of documents 52. Offences 53. Applications for review 54. Statement to accompany notice of decisions 55. Regulations SCHEDULE CONVENTION PLANT VARIETY RIGHTS ACT 1987 No. 2, 1987 - LONG TITLE
An Act to provide for the granting of proprietary rights to persons originating certain new plant varieties, and for related purposes PLANT VARIETY RIGHTS ACT 1987 No. 2, 1987 - PART I PART I-PRELIMINARY
PLANT VARIETY RIGHTS ACT 1987 No. 2, 1987 - SECT 1 Short title
(Assented to 13 March 1987)
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1. This Act may be cited as the Plant Variety Rights Act 1987. (Minister's second reading speech made in- House of Representatives on 8 October 1986 Senate on 1 December 1986) PLANT VARIETY RIGHTS ACT 1987 No. 2, 1987 - SECT 2 Commencement
2. This Act shall come into operation on a day to be fixed by Proclamation. PLANT VARIETY RIGHTS ACT 1987 No. 2, 1987 - SECT 3 Interpretation
3. (1) In this Act, unless the contrary intention appears- "accepted", in relation to an application, means accepted by the Secretary under section 18; "Advisory Committee" means the Plant Variety Rights Advisory Committee established by section 44; "applicant", in relation to an application, means the person for the time being shown in the application as the person making the application; "application" means an application under section 15 for plant variety rights in respect of a new plant variety to which this Act applies; "breeder", in relation to a new plant variety, means- (a) subject to paragraph (c), in the case of a variety originated by one person only-that person; (b) subject to paragraph (c), in the case of a variety originated by 2 or more persons (whether jointly, independently at the same time, independently at different times or otherwise)-each of those persons; or (c) in the case of a variety originated- (i) by a person in the course of performing duties or functions as a member or employee of a body (whether incorporate or unincorporate); or (ii) by 2 or more persons in the course of performing duties as members or employees of such a body, the body of which that person is a member or employee, or of which those persons are members or employees, as the case may be; "Convention" means the International Convention for the Protection of New Varieties of Plants, a copy of the English text of which is set out in the Schedule; "Court" means the Federal Court of Australia; "genetic resources centre" means- (a) a place known as a Plant Genetic Resources Centre; or (b) a place that is a genetic resources centre because of a declaration in force under sub-section 10 (1); "grantee", in relation to plant variety rights, means the person for the time being entered on the Register as the grantee of those rights; "member" means a member of the Advisory Committee, and includes the Registrar; "new plant variety" means a plant variety that- (a) was originated by a person; (b) is homogeneous having regard to the particular features of its sexual reproduction or vegetative propagation; (c) is stable; and (d) is distinguishable by one or more important morphological, physiological or other characteristics from all other plant varieties whose existence was a matter of public knowledge at the time when the application in respect of the variety was made; "plant" does not include fungus, alga or bacterium; "plant variety" includes cultivar, clone, hybrid and strain; "plant variety rights" means the rights specified in section 12; "Register" means the Register of Plant Variety Rights kept in pursuance of section 9; "Registrar" means the Registrar of Plant Variety Rights; "reproductive material", in relation to a plant, means- (a) a seed of that plant; (b) a cutting from that plant; or (c) any other part, or product, of that plant, from which another plant can be produced; "Secretary" means the Secretary to the Department; "sell", in relation to a plant or reproductive material of a plant, includes let on hire and exchange by way of barter; "successor", in relation to a breeder of a new plant variety, means a person to whom the right of the breeder to make an application for plant variety rights in respect of that plant variety has been assigned or transmitted; "will" includes a codicil. (2) For the purpose of this Act, a plant variety in respect of which an application has been made shall be taken to be stable if, and only if, plants of the variety remain true to the description of a plant of the variety given in the application- (a) except where paragraph (b) applies-after repeated reproduction or
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propagation of plants of the variety; or (b) where the application specifies a particular cycle of reproduction or multiplication-at the end of each of those cycles. (3) For the purposes of this Act, where a plant variety is originated by the selective breeding of plants, the person who carried out that breeding shall be taken to have originated that variety.
(4) For the purposes of this Act, where a plant variety is originated by a humanly induced genetic mutation, the person who induced that mutation shall be taken to have originated that variety.
(5) Where- (a) a person carries on activities in relation to particular plants or particular reproductive material of plants in the hope that a plant variety derived from those plants or that material will originate by natural processes; and (b) a plant variety so derived, or apparently so derived, originates by natural processes, that person shall be taken to have originated the plant variety referred to in paragraph (b). (6) A reference in this Act to a test growing of a plant variety is a reference to a test involving- (a) the growing, or the production and growing, of plants, or of 2 or more generations of plants, of that variety at a place that is, and under conditions that are, appropriate for the growing of plants of that variety; (b) the observation of the characteristics, and the condition, of the plants grown at the various stages in their growth; and (c) the recording of those observations. (7) Where, for the purposes of this Act, the Secretary or another person (including a court and the Administrative Appeals Tribunal) is required to be satisfied that a plant variety in respect of which an application has been made is a new plant variety, that person shall, for the purpose of deciding whether the person is so satisfied, assume- (a) that all the plant varieties whose existence was a matter of public knowledge when the application was made were constituted by, and constituted only by, the plant varieties that were in existence at the time when the application was made; and (b) that the only plant varieties that were in existence at the time when the application was made were the plant varieties of the existence of which at that time that person is aware after making such inquiries, and consulting such publications readily available in Australia, as that person considers appropriate. PLANT VARIETY RIGHTS ACT 1987 No. 2, 1987 - SECT 4 Act to bind Crown
4. (1) This Act binds the Crown in right of the Commonwealth, of each of the States, of the Northern Territory and of Norfolk Island. (2) Nothing in this Act renders the Crown in right of the Commonwealth, of a State, of the Northern Territory or of Norfolk Island liable to be prosecuted for an offence. PLANT VARIETY RIGHTS ACT 1987 No. 2, 1987 - SECT 5 Extent of Act
5. Nothing in this Act requires or permits the grant of plant variety rights in respect of a new plant variety unless- (a) the origination of that new plant variety constituted an invention for the purposes of paragraph 51 (xviii) of the Constitution; or (b) where Australia is a party to the Convention-the grant is appropriate to give effect to the obligations of Australia under the Convention. PLANT VARIETY RIGHTS ACT 1987 No. 2, 1987 - PART II PART II-ADMINISTRATION
PLANT VARIETY RIGHTS ACT 1987 No. 2, 1987 - SECT 6 Registrar of Plant Variety Rights
6. (1) There shall be a Registrar of Plant Variety Rights. (2) The office of Registrar of Plant Variety Rights shall be an office in the Department.
(3) The Registrar has such functions and powers as are conferred on the Registrar by this Act or by the regulations or are delegated to the Registrar by the Secretary under section 7. PLANT VARIETY RIGHTS ACT 1987 No. 2, 1987 - SECT 7 Delegation
7. (1) The Secretary may, either generally or as otherwise provided in the instrument of delegation, by writing signed by the Secretary, delegate to the Registrar or to another officer of the Department all or any of the powers of the Secretary under this Act, other than this power of delegation.
(2) A power so delegated, when exercised by the delegate, shall, for the purposes of this Act, be deemed to have been exercised by the Secretary.
(3) A delegation under this section does not prevent the exercise of a power by the Secretary. PLANT VARIETY RIGHTS ACT 1987 No. 2, 1987 - SECT 8 Certain persons not to acquire plant variety rights
8. (1) The Secretary, the Registrar or a person who, during the preceding 12 months has held, or performed the duties of, the office of Secretary or Registrar of Plant Variety Rights shall not apply for plant variety rights or acquire, otherwise than by will or by operation of law, any such rights or an
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interest in any such rights. Penalty: $2,000. (2) A grant of plant variety rights applied for in contravention of sub-section (1) or an acquisition of plant variety rights in contravention of that sub-section is void. PLANT VARIETY RIGHTS ACT 1987 No. 2, 1987 - SECT 9 Register of Plant Variety Rights
9. (1) The Registrar shall keep, at a place approved by the Secretary, a register, to be known as the Register of Plant Variety Rights, in which shall be entered particulars required to be entered by this Act or the regulations.
(2) The Registrar shall cause a copy of, or copies of, the Register to be kept and maintained in each State or Territory (other than the State or Territory where the place at which the Register is required to be kept is located) at the principal office of the Department in that State or Territory and at such other place or places (if any) in that State or Territory as the Secretary may direct. PLANT VARIETY RIGHTS ACT 1987 No. 2, 1987 - SECT 10 Genetic resources centres
10. (1) The Secretary may, by writing signed by the Secretary, declare a specified place that, in the opinion of the Secretary, is suitable for the storage and maintenance of germ plasm material to be a genetic resources centre for the purposes of this Act.
(2) The person in charge of a genetic resources centre may do all things necessary or desirable to maintain the viability of the reproductive material of plants stored at that centre in accordance with section 33. PLANT VARIETY RIGHTS ACT 1987 No. 2, 1987 - SECT 11 Public notice
11. (1) In addition to giving public notice of matters of which the Secretary is required to give notice by this Act or by the regulations, the Secretary may give public notice of other matters relating to this Act where the Secretary considers it necessary or desirable to do so.
(2) Subject to sub-sections (3) and (5), where the Secretary is required or permitted to give public notice of a matter for the purposes of this Act, the Secretary shall do so by publishing notice in writing of the matter in the Gazette.
(3) Subject to sub-section (4), where the Secretary considers that the volume of public notices of matters to be given for the purposes of this Act justifies the issue from time to time of a journal, to be called the Plant Varieties Journal, and the publication of notices of those matters in that journal instead of in the Gazette, the Secretary may issue that journal and, during the period in which the journal is being issued, shall give public notice of those matters by publishing notice in writing of them in that journal.
(4) The Secretary- (a) shall not issue the Plant Varieties Journal unless and until he or she has given public notice of the intention to do so; and (b) shall not cease to issue that journal unless and until he or she has given public notice of the intention to cease to issue the journal. (5) Subject to sub-section (6), where the Secretary considers that it is desirable to give public notices of matters for the purposes of this Act by publishing notice of those matters in a particular periodical other than the Gazette or the Plant Varieties Journal, the Secretary shall, unless it has become impossible to publish notice of those matters in that particular periodical, give public notice of those matters by publishing notice in writing of them in that particular periodical.
(6) The Secretary- (a) shall not publish notices of matters in a particular periodical in accordance with sub-section (5) unless and until he or she has given public notice of the intention to do so specifying the publication; (b) where the Secretary wishes to discontinue publishing notices of matters in a particular periodical in accordance with sub-section (5), the Secretary shall give public notice of his or her intention to so discontinue and, after giving that notice, shall so discontinue; and (c) if it becomes impossible to publish notices of matters in accordance with sub-section (5) in a particular journal because the journal has ceased publication or otherwise, the Secretary shall publish a notice in writing in the Gazette of the discontinuance of the publication of those notices in that publication. PLANT VARIETY RIGHTS ACT 1987 No. 2, 1987 - PART III PART III-PLANT VARIETY RIGHTS
PLANT VARIETY RIGHTS ACT 1987 No. 2, 1987 - DIVISION 1 Division 1-Preliminary
PLANT VARIETY RIGHTS ACT 1987 No. 2, 1987 - SECT 12 Plant variety rights
12. (1) Plant variety rights, in respect of a new plant variety, are- (a) the exclusive right to sell, including the right to license other persons to sell, plants of that variety; (b) the exclusive right to sell, including the right to license other persons to sell, reproductive material of plants of that variety; (c) the exclusive right to produce, including the right to license other
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persons to produce, plants of that variety for sale; and (d) the exclusive right to produce, including the right to license other persons to produce, reproductive material of plants of that variety for sale. (2) Plant variety rights in respect of a plant variety are subject to conditions imposed in respect of those rights by section 33 or under section 34. PLANT VARIETY RIGHTS ACT 1987 No. 2, 1987 - SECT 13 Plant variety rights to be granted in relation to certain varieties only
13. (1) Plant variety rights shall not be granted in respect of a plant variety unless the plants of that variety are plants of a genus or species declared by the regulations to be a genus or species to which this Act applies.
(2) The Governor-General shall not make a regulation declaring a genus or species to be a genus or species to which this Act applies unless the Governor-General has been informed by the Minister that the Minister has considered advice given by the Advisory Committee in relation to the desirability of the genus or species being declared to be a genus or species to which this Act applies.
(3) For the purposes of this section, a plant that is a hybrid derived from plants of different genera or species may be taken to be a plant of either of those genera or species. PLANT VARIETY RIGHTS ACT 1987 No. 2, 1987 - SECT 14 Plant variety rights not to be granted in respect of varieties previously sold
14. Where an application is made for plant variety rights in respect of a plant variety, those rights shall not be granted if there has been a sale of a plant, or reproductive material of a plant, of that variety by, or with the consent of, the breeder or a breeder, or a successor of the breeder or of a breeder, of the variety, and- (a) the sale took place in Australia before the making of the application;or (b) the sale took place in another country earlier than 6 years before the making of the application. PLANT VARIETY RIGHTS ACT 1987 No. 2, 1987 - DIVISION 2 Division 2-Applications for Plant Variety Rights
PLANT VARIETY RIGHTS ACT 1987 No. 2, 1987 - SECT 15 Application for plant variety rights
15. (1) Subject to this Act, a breeder of a new plant variety may make an application to the Secretary for plant variety rights in respect of the variety. (2) A breeder of a new plant variety has the right under sub-section (1) to make an application for plant variety rights in respect of that variety whether or not the breeder is an Australian citizen, whether or not the breeder is resident in Australia and whether the breeder originated the variety in Australia or in another country.
(3) The right under sub-section (1) of a breeder of a new plant variety to make an application for plant variety rights is personal property and is capable of assignment or of transmission by will or by operation of law (whether before or after the application has been made).
(4) An assignment of a right to make an application for plant variety rights does not have effect unless it is in writing signed by or on behalf of the assignor.
(5) Subject to sub-section (6), where 2 or more persons are entitled to make applications for plant variety rights in respect of a new plant variety, whether by reason that they originated the variety jointly or independently or otherwise, those persons or some of those persons may make a joint application for those rights.
(6) Where 2 or more persons (in this sub-section referred to as the "breeders") originate a new plant variety jointly, one of those breeders or a successor of one of those breeders shall not make an application for plant variety rights in respect of that variety otherwise than jointly with, or with the consent in writing of, the other person, or each other person, entitled to make an application for those rights. PLANT VARIETY RIGHTS ACT 1987 No. 2, 1987 - SECT 16 Form of application
16. An application for plant variety rights in respect of a plant variety shall be in writing in a form approved by the Secretary, shall be lodged with the Secretary in the prescribed manner and shall contain- (a) the name of the person making the application; (b) where the applicant is the breeder of the variety, a statement that the applicant is the breeder of the variety; (c) where the applicant is not the breeder of the variety, the name and address of the breeder from whom the applicant derived the right to make an application and particulars of all relevant assignments and transmissions of the right to make the relevant application; (d) a description, or a description and photograph, of a plant of the variety sufficient to identify plants of that variety; (e) particulars of the characteristics that distinguish the variety from other varieties; (f) particulars of the manner in which the variety was originated;
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(g) the name of the variety; (h) particulars of any application for, or approval of a grant of, rights of any kind in respect of the variety in any other country; (j) particulars of any tests carried out to establish that the variety is homogeneous and stable (including particulars of any cycle of reproduction or multiplication for the purposes of paragraph 3 (2) (b)); (k) in the case of a plant variety originated outside Australia, particulars of any test growing of that variety carried out for the purpose of determining whether the variety will, if grown in Australia, have a particular characteristic; (m) an address in Australia for the service of documents on the applicant for the purposes of this Act; and (n) such other particulars (if any) as are prescribed. PLANT VARIETY RIGHTS ACT 1987 No. 2, 1987 - SECT 17 Names of new plant varieties
17. (1) The name of a new plant variety shall consist of a word or words (which may be an invented word or words) with or without the addition of- (a) a letter or letters not constituting a word; (b) a figure or figures; or (c) both a letter or letters not constituting a word and a figure or figures. (2) A new plant variety shall not have- (a) a name the use of which would be likely to deceive or cause confusion, including a name that is the same as, or is likely to be mistaken for, the name of another plant variety; (b) a name the use of which would be contrary to law; (c) a name that comprises or contains scandalous or offensive matter; or