PBR

Trans Tasman IP harmonising – patents

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Prime Ministers Gillard (Australia) and Key (EnZed) have reaffirmed their countries’ respective commitment to closer co-operation in (industrial) IP matters between the two countries as part of the Trans Tasman Single Economic Market.

Apparently, over the next 5 years our countries will work towards:

  1. one regulatory framework for patent attorneys;
  2. one trade mark regime;
  3. one application process for patents in both jurisdictions; and
  4. one plant variety right regime.

According to the Statement issued on 16 February, the single application process for patents in both jurisdications will involve 2 stages. In the first stage, “both countries will rely on each other’s work, where possible, to build confidence and simplify processes”. In the second stage, there will be a “single examination process”.

Apparently, this will not involve changing either country’s patent laws as the Statement explains:

Examiners will grant or refuse applications under each country’s law. It will not be necessary for our laws to be identical.

and

Australia and New Zealand will operate as one integrated patent examination entity in practice – not in law. Both countries will retain flexibility to implement legislation and policies.

All this is forecast to take 3 years.

In contrast, streams 2 and 4 envisage one (trade mark or plant breeder’s) regime. That seems to indicate than one or other of our respective trade mark or plant breeder’s laws will need to change because (so far as I understand it – not very far at all, really) EnZed trade mark law is much closer to “modern” (ie. 1994) UK legislation and hence EU rules. Is it too soon to start boning up on ECJ rulings?

See also here and here.

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Plant breeder’s rights in the EU

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The European Court of Justice has dismissed Ralf Schräder’s appeal from the rejection of its registration for plant breeder’s rights in plectranthus ornatus.

It would seem after detailed genetic testing, including travel to South Africa, the EU regulatory authorities have determined the variety the subject of the application is not distinct from a common South African plant.

IPKat has a good overview, with links to earlier stages in the dispute, here.

Case C?38/09 P Ralf Schräder v Community Plant Variety Office

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Enforcement of PBR in Australia

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ACIP has published its final report into the Enforcement of plant breeder’s rights in Australia.

The report is here (pdf) – be warned 138pp, Exec Summary is 10pp.

Some recommendations:

 

Recommendation 1.

A new “purchase” right be added to s.11. This new right would only apply to those taxa that are specifically declared in the regulations. Industry sectors such as wheat breeders would apply to the PBR Office to have particular taxa so declared.

 

Recommendation 2.

The PBR Act be amended to clarify that harvested material that is also propagating material is to be considered as propagating material for the purposes of s.11, even if it is not being used for that purpose.

 

Recommendation 4.

There be no change to the operation of farmer’s privilege under s.17.

However, s.17 should be amended to state in easily understood terms that s.17 does not provide the farmer with the right to perform the acts listed in s.11(a) to (g). For example, the farmer will still require the PBR owner’s authorisation to sell the reproduced propagating material, the harvested material or the product of the harvested material.

Recommendation 5.

As part of IP Australia’s education and awareness programs, raise industry awareness of the opportunity under s.17(2) to have specific taxa excluded from the farmer’s privilege exemption.

Recommendation 6.

Encourage PBR owners to make clear to growers the conditions of sale of propagating material and their obligations in relation to future generations of it. This includes making clear that growers require the authorisation of the PBR owner to sell crops grown from farm-saved seed.

 

 

Recommendation 17.
Introduce an Information Notice system into the PBR Act based on the UK Information Notice system.
This would enable PBR owners to obtain information from suspected infringers on the
source of plant material. Where this is not supplied within a reasonable time, legal proceedings may be commenced in which the presumption is made that the plant material was obtained through unauthorised use of propagating material and that the PBR owner did not have a reasonable opportunity to exercise its rights in relation to the material.

Recommendation 14.

The jurisdiction of the second tier of the Federal Court of Australia to include PBR matters.

Appropriately qualified magistrates must be made available and there should be appropriate measures taken to ensure the processes of the second tier are faster and cheaper than in the first tier. Examples include simplifying and standardising procedures for expert evidence and DNA testing through the issuing practice notes, use of alternate dispute resolution where appropriate, and curtailing of the discovery phase.

Recommendation 12.

An on-going Expert Panel be established to provide guidance and opinions on general issues or specific cases concerning the PBR Act and related law. The Panel should comprise appropriate people with expertise in relevant areas who provide their services as required.

Upon request from any person and for a moderate fee, the Panel may provide detailed guidance and opinions on general issues or specific cases concerning the PBR Act and related law. The Panel should focus on the enforcement of granted rights and not provide advice on the registrability of individual applications for PBR. The Panel’s opinions should be made publicly available in a manner that respects commercially sensitive material. The Panel may refer matters to the Government or ACIP as it sees fit.

 

 

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