41FEssential derivation for non‑PBR‑protected varieties—application lodged for PBR in second variety

#### 41F Essential derivation for non‑PBR‑protected varieties—application lodged for PBR in second variety Decision to treat application under section 41A as an application under section 40 (1) The Registrar must decide to treat an application under section 41A for a declaration under section 41D that a plant variety (the second variety) is essentially derived from another variety (the initial variety) as an application under section 40 in relation to those plant varieties if: (a) an application for PBR in a plant variety (the PBR application) is made under section 24; and (b) the Registrar is satisfied that the plant variety in relation to which the PBR application is made is the same as the second variety. > Note: Section 40 provides for a declaration that a plant variety (the second variety) is essentially derived from another plant variety (the initial variety) if PBR has been applied for, or granted, in relation to the second variety. Effect of decision (2) If the Registrar makes a decision under subsection (1): (a) the Registrar must not make a decision under section 41D in relation to the application under section 41A (the original application); and (b) the Registrar must treat the application under section 41A as if it were an application (the converted application) made under section 40 in relation to the initial variety and the second variety, subject to this section. Notification of decision (3) The Registrar must notify the decision to the following persons: (a) each eligible person, within the meaning of section 41A, in relation to the initial variety (including the applicant under section 41A); (b) the applicant for PBR in the second variety; (c) each interested person, other than the applicant for PBR in the second variety, who is required to be given an opportunity to be heard under subsection 41C(1). (4) A notification under subsection (3) must include: (a) a statement of the reasons for the decision, and the effect of this section; and (b) in the case of the notification given under paragraph (3)(a) to the applicant under section 41A—a statement to the effect that the applicant under section 41A may provide additional information under subsection (6) within 2 months after the date of the notification. (5) The Registrar must publish notice of the decision in the Plant Varieties Journal. Relevant information (6) Within 2 months after a notification of the Registrar’s decision is given under subsection (3) to the applicant under section 41A, the applicant under section 41A may give the Registrar any information that would have been required or allowed under subsections 40(4) and (5) had the original application been made under section 40. (7) For the purpose of making a decision under section 40 in relation to the converted application, the Registrar may consider the following: (a) for the purposes of a decision under subsection 40(7): (i) any information in the original application; and (ii) any additional information given in accordance with subsection (6) of this section; (b) for the purposes of a decision under subsection 40(10) or (11): (i) any information in relation to the original application given by an interested person in accordance with the person’s opportunity to be heard under subsection 41C(4); and (ii) any information in relation to the original application obtained in a test growing conducted in accordance with section 41E; and (iii) any information mentioned in subsection 40(10) in relation to the converted application, including information obtained in a test growing conducted in accordance with section 41. Time for making decision (8) The Registrar must not make a decision in relation to the converted application earlier than 2 months after the day the notification is given under paragraph (3)(a) to the applicant under section 41A.