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PLANT BREEDER'S RIGHTS ACT 1994 - SECT 41C

Essential derivation for non-PBR-protected varieties--opportunity to be heard

Opportunity to be heard for interested persons

             (1)  Before making a decision in relation to an application under section 41A for a declaration under section 41D that a plant variety (the second variety ) is essentially derived from another plant variety, the Registrar must give an opportunity to be heard under this section to the following persons (each of whom is an interested person ):

                     (a)  a person notified under paragraph 41A(6)(b);

                     (b)  another person who claims to have an interest in the second variety.

Note:          Paragraph 41A(6)(b) provides for the Registrar to notify a person (or persons) the applicant reasonably believes to be the breeder of the second variety.

             (2)  Subsection (1) only applies if the interested person gives the Registrar an address for service in Australia or New Zealand within the hearing period.

             (3)  The hearing period is the period of 2 months after:

                     (a)  if the Registrar notifies the application to a person (or persons) under paragraph 41A(6)(b)--the later of the following days:

                              (i)  the day the application is notified;

                             (ii)  the day notification of the application is last published in the Plant Varieties Journal ; or

                     (b)  if the Registrar does not notify the application to a person (or persons) under paragraph 41A(6)(b)--the day notification of the application is last published in the Plant Varieties Journal .

Note:          The hearing period is the minimum period for considering the application (see subsection 41D(5)).

Information given in accordance with the opportunity to be heard

             (4)  For the purposes of section 41D, information is given by an interested person in accordance with the person's opportunity to be heard if the information is given in accordance with regulations prescribed for the purposes of this subsection.

             (5)  Regulations made for the purposes of subsection (4) may, without limiting that subsection, include reasonable requirements in relation to the following:

                     (a)  the giving of written information at the request of the Registrar;

                     (b)  the giving of oral information at a hearing convened by the Registrar;

                     (c)  when, where and in what circumstances such a hearing may be convened;

                     (d)  the practice and procedure for any such hearings, including provision for the Registrar to determine such practice and procedure (whether generally or in relation to a particular hearing);

                     (e)  the payment of any fees that are prescribed by the regulations in relation to the opportunity to be heard.

Interested person declines the opportunity to be heard

             (6)  For the purposes of section 41D, an interested person declines the opportunity to be heard if the person:

                     (a)  gives the Registrar notice that the person does not want to be heard; or

                     (b)  fails to give any information in accordance with the person's opportunity to be heard under subsection (4).



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