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PLANT BREEDER'S RIGHTS ACT 1994 - SECT 44

Grant of PBR

             (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 Registrar 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 Registrar; and

                          (viii)  if the Registrar 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 Registrar 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 Registrar 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 Registrar is not satisfied of all of the matters referred to in paragraph (1)(b);

the Registrar must refuse to grant that right to the applicant.

             (4)  The Registrar 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 Registrar; and

                     (c)  the Registrar has given public notice of the variation;

the Registrar 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 Registrar must give the applicant 30 days, starting when a copy of the objection is given to the applicant, or such longer period as the Registrar 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 Registrar 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 Registrar of a certificate in an approved form, signed by the Registrar, containing such particulars of the plant variety concerned as the Registrar 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 Registrar refuses to grant PBR in a plant variety, the Registrar must, within 30 days of so refusing, notify the applicant:

                     (a)  of the refusal; and

                     (b)  of 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.



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