Commonwealth Consolidated Acts

PLANT BREEDER'S RIGHTS ACT 1994 - SECT 38

  (1)   If:

  (a)   a plant variety (the subject variety ):

  (i)   was bred outside Australia; or

  (ii)   was bred in Australia but, before an application for PBR was made in Australia, an application for PBR was made in a contracting party other than Australia; and

  (b)   an application under this Act for PBR in the variety has been accepted;

the variety is not to be taken to have a particular characteristic unless subsection   (2), (3), (4) or (5) applies to the variety.

  (2)   This subsection applies to the subject variety if a test growing in Australia has demonstrated that the variety has the particular characteristic.

  (3)   This subsection applies to the subject variety if:

  (a)   a test growing of the variety has been carried out outside Australia; and

  (b)   that test growing has demonstrated that the variety has the particular characteristic; and

  (c)   under an agreement between Australia and the country in which the test growing was carried out, Australia is required to accept that the variety has that particular characteristic.

  (4)   This subsection applies to the subject variety if the Registrar is satisfied that:

  (a)   a test growing of the variety carried out outside Australia has demonstrated that the variety has the particular characteristic; and

  (b)   that test growing of the variety is equivalent to a test growing of the variety in Australia.

  (5)   This subsection applies to the subject variety if the Registrar is satisfied that:

  (a)   a test growing of the variety carried out outside Australia has demonstrated that the variety has the particular characteristic; and

  (b)   any test growing of the variety carried out in Australia would probably demonstrate that the variety has that characteristic; and

  (c)   if a test growing of the variety in Australia sufficient to demonstrate whether the variety has that characteristic were to be carried out, it would take longer than 2 years.

Note:   A decision to the effect that the Registrar is, or is not, satisfied of the matters referred to in subsection   (4) or (5) is reviewable by the ART under section   77.