Commonwealth Consolidated Acts Commonwealth Consolidated Acts(1) A person who proposes to perform an act described in a paragraph of section 11 in relation to the propagating material of a plant variety may, by an action in the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) against the grantee of PBR in a plant variety, apply for a declaration that the performance of that act would not constitute an infringement of that right.
(2) A person may apply for a declaration whether or not there has been an assertion of an infringement of PBR by the grantee of that right.
(3) The court must not make such a declaration unless:
(a) the person proposing to perform the act:
(i) has applied in writing to the grantee of the PBR concerned for an admission that the proposed performance of the act would not infringe that right; and
(ii) has given the grantee full written particulars of the propagating material concerned; and
(iii) has undertaken to repay all expenses reasonably incurred by the grantee in obtaining advice in the declaration; and
(b) the grantee has refused or failed to make such an admission.
(4) The costs of all parties in proceedings for a declaration under this section are to be paid by the person seeking the declaration unless the court otherwise orders.
(5) The validity of a grant of PBR in a plant variety is not to be called in question in proceedings for a declaration under this section.
(6) The making of, or the refusal to make, a declaration under this section does not imply that a grant of PBR in a plant variety is, or is not, valid.
(7) The grantee must be joined as a respondent in the proceedings.
(8) In this section:
"grantee" includes an exclusive licensee of the grantee.