55Declarations as to non‑infringement

55 Declarations as to non‑infringement

(1) A person who proposes to perform an act described in a paragraph of section 11 in relation to the propagating material of a plant variety may, by an action in the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) against the grantee of PBR in a plant variety, apply for a declaration that the performance of that act would not constitute an infringement of that right. (2) A person may apply for a declaration whether or not there has been an assertion of an infringement of PBR by the grantee of that right. (3) The court must not make such a declaration unless: (a) the person proposing to perform the act: (i) has applied in writing to the grantee of the PBR concerned for an admission that the proposed performance of the act would not infringe that right; and (ii) has given the grantee full written particulars of the propagating material concerned; and (iii) has undertaken to repay all expenses reasonably incurred by the grantee in obtaining advice in the declaration; and (b) the grantee has refused or failed to make such an admission. (4) The costs of all parties in proceedings for a declaration under this section are to be paid by the person seeking the declaration unless the court otherwise orders. (5) The validity of a grant of PBR in a plant variety is not to be called in question in proceedings for a declaration under this section. (6) The making of, or the refusal to make, a declaration under this section does not imply that a grant of PBR in a plant variety is, or is not, valid. (7) The grantee must be joined as a respondent in the proceedings. (8) In this section:

grantee includes an exclusive licensee of the grantee.