40Essential derivation for PBR‑protected varieties—declaration

#### 40 Essential derivation for PBR‑protected varieties—declaration (1) A person (an eligible person) may make an application under subsection (1A) if the person is: (a) the grantee of PBR in a plant variety; or (b) an exclusive licensee of such a grantee. (1A) An eligible person in relation to a plant variety (the initial variety) may apply in writing to the Registrar for a declaration that another variety (the second variety) is essentially derived from the initial variety if: (a) another person is the grantee of, or has applied for, PBR in the second variety; and (b) the eligible person is satisfied that the second variety is essentially derived from the initial variety; and (c) the initial variety has not itself been declared (under section 40 or 41D) to be essentially derived from another variety in which PBR has been granted. > Note 1: If the breeder of the second variety has not applied for, or been granted, PBR in the second variety, an eligible person may apply under section 41A for a declaration that the second variety is essentially derived from the initial variety. > Note 2: If an application for PBR in the second variety is made after an application is made under section 41A in relation to that variety, the application under section 41A may be treated as if it were an application under this section (see section 41F). (1B) The Registrar must notify the application under subsection (1A) to each eligible person in relation to the initial variety other than the applicant. (1C) If an eligible person in relation to a plant variety (the initial variety) applies for a declaration under subsection (1A) in relation to another plant variety (the second variety), that does not prevent another eligible person in relation to the initial variety also applying for a declaration under that subsection in relation to the second variety. (2) Nothing in this section implies that an eligible person in relation to a plant variety (the initial variety) may not, in relation to an application by another person for PBR in another plant variety (the second variety) that has been accepted but not finally determined: (a) make an objection, under section 35, to the granting of PBR in the second variety; and (b) in the alternative, if PBR is granted to another person in the second variety—apply under subsection (1A) for a declaration that the second variety is essentially derived from the initial variety. (3) If the second variety: (a) is the subject of an application for PBR; and (b) is also the subject of an application for a declaration of essential derivation; then, unless and until the Registrar decides to grant the application for PBR: (c) the Registrar must not make the declaration of essential derivation; but (d) the Registrar may, in his or her discretion: (i) examine both the application for PBR and the application for a declaration of essential derivation at the same time; and (ii) for the purpose only of examining the application for a declaration of essential derivation—treat the applicant for PBR as the grantee of PBR in the variety. (4) An application for a declaration of essential derivation must: (a) be in the approved form; and (b) be accompanied by the prescribed fee in respect of the application. (5) An application must contain such information relevant to establishing a prima facie case that the second variety is an essentially derived variety of the initial variety as is required by the form. (6) If the initial variety has itself been declared to be essentially derived from another variety, the Registrar must: (a) refuse to declare the second variety essentially derived from the initial variety; and (b) notify each eligible person in relation to the initial variety (including the applicant) of the refusal and the reasons for it. (7) If the initial variety has not been so declared, the Registrar must determine, on the basis of the application, whether the Registrar is satisfied that there is a prima facie case that the second variety is an essentially derived variety of the initial variety. (8) If the Registrar is satisfied of that prima facie case, the Registrar must: (a) notify the applicant and the grantee of PBR in the second variety that the Registrar is so satisfied; and (b) notify the grantee of PBR in the second variety that, unless the grantee establishes, within 30 days after being so notified or such longer period as the Registrar allows, that the second variety is not an essentially derived variety of the initial variety, the Registrar will, at the end of that period, declare the second variety to be such an essentially derived variety. > Note: A decision under this subsection to refuse to extend the period of 30 days is reviewable by the ART under section 77. (9) If the Registrar is not satisfied of that prima facie case, the Registrar must notify each eligible person in relation to the initial variety (including the applicant) that the Registrar is not so satisfied, and of the reasons for not being so satisfied. (10) If, after considering: (a) the information presented by the grantee of PBR in the second variety; and (b) any information obtained from a test growing conducted in accordance with section 41; and (c) any other relevant information obtained by the Registrar; the Registrar is not satisfied that the grantee of PBR in the second variety has rebutted the prima facie case, the Registrar must: (d) declare, in writing, that the second variety is an essentially derived variety of the initial variety; and (e) notify each eligible person in relation to the initial variety (including the applicant) of the declaration; and (f) notify the grantee of PBR in the second variety of the declaration and of the reasons for not being satisfied that the prima facie case has been rebutted. (11) If, after considering the information referred to in paragraph (10)(a), (b) or (c), the Registrar is satisfied that the grantee of PBR in the second variety has rebutted the prima facie case, the Registrar must: (a) notify each eligible person in relation to the initial variety (including the applicant) that he or she is so satisfied, and of the reasons for being so satisfied; and (b) notify the grantee of PBR in the second variety that he or she is so satisfied. (12) While a declaration under this section that the second variety is essentially derived from the initial variety remains in force, section 19 applies in relation to the second variety as if: (a) the references in that section to the grantee, in relation to that variety were references both to the person holding PBR in that variety and to the person holding PBR in the initial variety; and (b) the reference in subsection 19(4) to 2 years after the grant of PBR were a reference to 2 years after the grant of PBR in the second variety whether or not the declaration of essential derivation was made at the same time or a later time; and (c) a failure by the other person holding PBR in the initial variety or the person holding PBR in the second variety to co‑operate in making the second variety available to the public in accordance with the requirements of subsection 19(1) was a failure of the grantee to comply with the requirements of that subsection. > Note 1: Section 19 requires the grantee of PBR in a plant variety to take reasonable steps to ensure reasonable public access to the plant variety. > Note 2: A decision under this section to declare, or not to declare, a plant variety essentially derived is reviewable by the ART under section 77.