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.
