43Registrable plant varieties

#### 43 Registrable plant varieties (1) For the purposes of this Act, a plant variety in which an application for PBR is made is registrable if: (a) the variety has a breeder; and (b) the variety is distinct; and (c) the variety is uniform; and (d) the variety is stable; and (e) the variety has not been exploited or has been only recently exploited. (2) For the purposes of this section, a plant variety is distinct if it is clearly distinguishable from any other variety whose existence is a matter of common knowledge. (3) For the purposes of this section, a plant variety is uniform if, subject to the variation that may be expected from the particular features of its propagation, it is uniform in its relevant characteristics on propagation. (4) For the purposes of this section, a plant variety is stable if its relevant characteristics remain unchanged after repeated propagation. (5) For the purposes of this section, a plant variety is taken not to have been exploited if, at the date of lodging the application for PBR in the variety, plant material of the variety has not been sold to another person by, or with the consent of, the breeder. (6) For the purposes of this section, a plant variety is taken to have been only recently exploited if, at the date of lodging the application for PBR in the variety, plant material of the variety has not been sold to another person by, or with the consent of, the breeder, either: (a) in Australia—more than one year before that date; or (b) outside of Australia: (i) in the case of trees or vines—more than 6 years before that date; or (ii) in any other case—more than 4 years before that date. > Note: For the definition of sell see subsection 3(1). (7) Subsection (6) does not apply to a sale by the breeder of a plant variety of plant material of the variety to another person if that sale is a part of, or related to, another transaction under which the right of the breeder to make application for PBR in that plant variety is sold to that other person. (7A) Subsection (6) does not apply to a sale of plant material of a plant variety to a person by, or with the consent of, the breeder if: (a) the sole purpose of the sale is for the person to multiply plant material of that plant variety on behalf of the breeder; and (b) under the agreement for the sale, immediately after the plant material is multiplied, property in the new plant material vests in the breeder. (7B) Subsection (6) does not apply to a sale of plant material of a plant variety to a person by, or with the consent of, the breeder if the sale is part of an agreement under which the person agrees to use plant material of that variety for the sole purpose of evaluating the variety in one or more of the following tests or trials: (a) field tests; (b) laboratory trials; (c) small‑scale processing trials; (d) tests or trials prescribed for the purposes of this subsection. (7C) Subsection (6) does not apply to a sale of plant material of a plant variety to a person by, or with the consent of, the breeder if: (a) the sale only involves plant material that is a by‑product or surplus product of one or more of the following: (i) the creation of the variety; (ii) a multiplication of the variety; (iii) tests or trials covered by subsection (7B); and (b) the plant material is sold: (i) without identification of the plant variety of the plant material; and (ii) for the sole purpose of final consumption. (8) In addition to any other reason for treating a plant variety as a variety of common knowledge, a variety is to be treated as a variety of common knowledge if: (a) an application for PBR in the variety has been lodged in a contracting party, or in a foreign country that is not a contracting party; and (b) the application is proceeding, or has led, to the grant of PBR. (9) A plant variety that is to be treated as a variety of common knowledge under subsection (8) because of an application for PBR in the variety is to be so treated from the time of the application. (10) In this section: > plant material, in relation to a plant variety, means one or more of the following: (a) propagating material of the plant variety; (b) harvested material of the plant variety; (c) products obtained from harvested material of the plant variety. > variety has the same meaning as in the 1991 Act of the Convention.