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PLANT BREEDER'S RIGHTS ACT 1994 - SECT 41D

Essential derivation for non-PBR-protected varieties--declaration

Making the decision

             (1)  On an application under section 41A for a declaration under this section that a plant variety (the second variety ) is essentially derived from another plant variety (the initial variety ), the Registrar may:

                     (a)  declare in writing that the second variety is essentially derived from the initial variety; or

                     (b)  refuse to make such a declaration.

Note 1:       A decision under this section is reviewable by the AAT under section 77.

Note 2:       The Registrar must refuse to make a declaration under this section if the applicant fails to comply with a requirement under paragraph 41E(3)(a) in relation to a test growing.

Note 3:       The Registrar must not make a decision under this section if an application for PBR in the second variety is made under section 24 (see section 41F).

             (2)  The Registrar must make a declaration under subsection (1) if, and only if:

                     (a)  he or she is satisfied on the balance of probabilities that the second variety is:

                              (i)  essentially derived from the initial variety; and

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

                     (b)  the initial variety is not itself declared (under section 40 or this section) to be essentially derived from another plant variety.

             (3)  In deciding whether to make a declaration under subsection (1), the Registrar must consider the following:

                     (a)  the information in the application;

                     (b)  any information given by an interested person in accordance with the person's opportunity to be heard under subsection 41C(4);

                     (c)  any information obtained in a test growing conducted in accordance with section 41E;

                     (d)  any other relevant information.

             (4)  For the purposes of making the decision, the Registrar may draw an inference that is unfavourable to the interests of an interested person (within the meaning of section 41C) if the person, within the hearing period:

                     (a)  does not give the Registrar an address for service for the purposes of subsection 41C(2); or

                     (b)  declines the opportunity to be heard under subsection 41C(6).

Time for making decision

             (5)  The Registrar must not make a decision in relation to the application before the end of the hearing period.

Note:          For the hearing period, see subsection 41C(3).

Notification of decision

             (6)  If the Registrar makes a decision under subsection (1), the Registrar must notify the decision to the following:

                     (a)  each eligible person within the meaning of section 41A (including the applicant);

                     (b)  each interested person who is required to be given an opportunity to be heard under subsection 41C(1).

             (7)  A notification under subsection (6) must include:

                     (a)  a statement of reasons for the decision; and

                     (b)  a statement to the effect that, subject to the AAT Act, application may be made to the AAT for review of the decision to which the notice relates by or on behalf of a person or persons whose interests are affected by the decision.

Effect of declaration--reasonable public access

             (8)  While a declaration under this section that the second variety is essentially derived from the initial variety remains in force, section 19 applies in relation to the second variety as if the reference in subsection 19(4) to 2 years after the grant of PBR were a reference to 2 years after the declaration was made.

Note:          Section 19 requires the grantee of PBR in a plant variety to take reasonable steps to ensure reasonable public access to the plant variety.



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