39Provisional protection

39 Provisional protection

(1) When an application for PBR in a plant variety is accepted, the applicant is taken to be the grantee of that right for the purposes of Part 5 from the day the application is accepted until: (a) the application is disposed of; or (b) if the Registrar gives the applicant a notification under subsection (2)—the notification is disposed of; whichever occurs first. (2) If the Registrar is satisfied in relation to an application for PBR in a plant variety, that: (a) PBR will not be granted or is unlikely to be granted to the applicant; or (aa) a decision has been taken under paragraph 37(2B)(b) not to proceed with the application; or (ab) the application has been withdrawn; or (b) the applicant has given an undertaking to a person (whether or not for consideration) not to commence proceedings for infringement of the right of which the applicant is deemed to be the grantee; or (c) at least 12 months have elapsed since the publication of the detailed description that was given to the Registrar under subsection 34(1); the Registrar may notify the applicant that this section will cease to apply to that variety on a day specified in the notification unless, before that time the applicant has made a submission to the Registrar providing reasons why this section should not cease to apply.

Note: A decision under this subsection to notify an applicant is reviewable by the ART under section 77.

(3) For the purposes of paragraph (1)(b) a notification referred to in that paragraph is not taken to be disposed of until: (a) the end of the period within which application may be made to the ART for a review of the giving of the notification; or (b) if such an application is made to the ART—the application is withdrawn or finally determined, whether by the ART or a court. (4) As soon as practicable after a person ceases to be taken to be the grantee of PBR under this section, the Registrar must give public notice that the person has ceased to be so taken. (5) Nothing in this section affects the power of: (a) the Federal Court, or a Judge of that Court, under subsection 178(2) of the ART Act; or (b) the Federal Circuit and Family Court of Australia (Division 2), or a Judge of that Court, under subsection 178(2) of the ART Act (as it applies because of subsection 179(4) of that Act); where an appeal is begun in that court from a decision of the ART. (6) A person who is taken to be the grantee of PBR in a plant variety is not entitled to begin an action or proceeding for an infringement of that right occurring during the period when the person is so taken unless and until that right is finally granted to the person under section 44.