(Not) a case of PBR

Caithness applied for the grant of plant variety rights for the potato variety ‘Nadine’ on 21 May 1992.

That application was accepted by the Registrar on 28 May 1992.

On 10 November 1994, the Plant Breeder’s Rights Act 1994 came into force and repealed the Plant Variety Rights Act 1987.

On 16 August 1995, Caithness’ application for Nadine was granted and certificate 465 was issued.

Under the old Act (the PVRA), the term of a registration was 20 years from the date of acceptance; i.e. until 28 May 2012. The term of registration under the New Act, however, was 20 years from the date of grant; i.e. until 16 August 2015. Elders, Caithness’ exclusive agent for Australia, challenged the Registrar’s conclusion that the term applicable was that under the old Act.

If Nadine had actually been registered before the old Act was repealed, s 82 of the new Act meant it would have the longer term of protection (i.e., measured from the date of grant) conferred by the new Act as if it had been registered under the new Act.

Because Nadine had only been accepted when the new Act came into force, however, Lander J has ruled that it did not fall under s 82, but s 83.

Moreover, the drafting of s 83 led to the ‘unfairness’ that Nadine was only entitled to protection for the term applicable under the old Act; i.e. until 28 May 2012.

His Honour refused to apply the principle in Inco Europe Ltd v First Choice Distribution [2000] UKHL 15 and interpret s 83 as if additional words could be read into it to remedy an obvious drafting error:

85 The additional words which should be read in at the end of s 83 are said to be “save that a successful applicant will be granted PBR pursuant to the provisions of the Act”.

86 Assuming this Court had the power to do what the applicant contends, the Court should decline to exercise the power for two reasons which follow from the reasons for the construction that I have suggested. First, it would mean that an applicant who could not comply with s 44 of the new Act would have to be deemed to have complied otherwise the application would have to be refused. That would require some further words to be notionally added. Secondly, the applicant would obtain rights, being PBR, that s 82 contemplates that an old Act applicant should not be entitled. The applicant would obtain the rights which are specifically excluded in s 82(3) and (4). That would be a very odd result. It would mean that an applicant who had been granted plant variety rights under the old Act would be deemed to be entitled to PBR without the rights in s 82(3) and (4), but an applicant who had made an application under the old Act but who had not been granted any rights would become entitled to PBR including the rights under s 82(3) and (4).

87 This is not a piece of legislation which can be redrawn by the Court. The unfortunate result which the drafting error discloses is a matter for Parliament.

    Elders Rural Services Australia Limited v Registrar of Plant Breeder’s Rights [2011] FCA 384

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