Elders Rural Services Australia Limited v Registrar of Plant Breeder's Rights [2011] FCA 384 (19 April 2011)
The PBR Act permits any person to act as an agent for another in relation to matters relating to PBR’s, and it is common for Australian patent attorneys, especially those having expertise in relevant areas of biology, to provide advice and services in relation to PBR’s. Here at Patentology, we do not claim to have such expertise, or indeed any practical experience in relation to PBR’s, so we would welcome any comments from informed readers who might find fault with what follows.
In short, Justice Lander in the Federal Court of Australia has uncovered an apparent drafting error in the transitional provisions of the PBR Act which – if we understand the consequences correctly – results in unenforceability of any rights which were originally applied for under the PVR Act but not granted until after commencement of the PBR Act.
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Plant Breeder’s Rights (PBR’s), granted under the Plant Breeder’s Rights Act 1994 (the PBR Act), perform a similar function in Australia to Plant Patents in the US. Generally speaking, PBR’s are rights granted to the breeder of a new variety of plant that provide exclusive control over propagating materials, such as seeds, cuttings, divisions, tissue culture, and so forth. The current PBR Act came into force on 10 November 1994, prior to which rights in relation to new plant varieties were granted under the Plant Variety Rights Act 1987 (the PVR Act).
The PBR Act permits any person to act as an agent for another in relation to matters relating to PBR’s, and it is common for Australian patent attorneys, especially those having expertise in relevant areas of biology, to provide advice and services in relation to PBR’s. Here at Patentology, we do not claim to have such expertise, or indeed any practical experience in relation to PBR’s, so we would welcome any comments from informed readers who might find fault with what follows.
In short, Justice Lander in the Federal Court of Australia has uncovered an apparent drafting error in the transitional provisions of the PBR Act which – if we understand the consequences correctly – results in unenforceability of any rights which were originally applied for under the PVR Act but not granted until after commencement of the PBR Act.
Tags: Australia, Plant Breeder's Rights
