Before 1 July 2017, Norfolk Island has not had any system for protecting new varieties of plants. From 1 July 2017, the Plant Breeder’s Rights Act 1994 (PBR Act) extends to Norfolk Island. This results from new regulation 3AA of the Plant Breeder’s Rights Regulations 1994, inserted by item 9 of Part 2 of Schedule 6 to the Intellectual Property Legislation Amendment (Single Economic Market and Other Measures) Regulation 2016.
The extension of the PBR Act to Norfolk Island is in line with the Australian Government’s commitment to implement comprehensive reform in Norfolk Island. This is to provide people in Norfolk Island with the same rights and responsibilities as those in the rest of Australia. The change also aligns with the other Australian intellectual property systems already applying in Norfolk Island: patents, trade marks, designs, copyright and electronic circuit layout rights.
Between October and December 2016, IP Australia sought public feedback on two proposed transitional arrangements to help ensure a seamless extension of the PBR Act to Norfolk Island. No submissions were received.
The two transitional arrangements, which take effect on 1 July 2017, are set out in the Territories Legislation (Plant Breeder’s Rights) Transitional Rules 2017:
1. Previous sale of plant material
The first transitional arrangement is to ensure the previous sale of plant material in Norfolk Island affects the grant of Australian PBR in just the same way as the previous sale of plant material in the rest of Australia. Currently, PBR in a plant variety cannot be granted in Australia if plant material of the variety was sold in the rest of Australia more than 12 months before lodging the application for PBR in the variety.
After 1 July 2017, PBR will not be granted in a plant variety if plant material of the variety was sold in Norfolk Island more than 12 months before lodging an application for PBR in the variety. This rule applies to:
- applications for PBR lodged on or after 1 July 2017
- applications for PBR lodged before 1 July 2017 if no decision to grant PBR had already been made before 1 July 2017.
For example, a breeder in Norfolk Island breeds a plant variety and sells the variety between 2012 and 2014. The breeder stops selling the variety in 2014. In June 2017, the breeder applies to IP Australia for PBR in the variety. After 1 July 2017, the PBR cannot be granted, owing to the previous sales in Norfolk Island.
2. The absence of PBR protection prior to 1 July 2017
The second transitional arrangement is to ensure that a person who relied on the absence of PBR protection in Norfolk Island in the 12 months before 1 July 2017 is not disadvantaged by the extension of the PBR Act to Norfolk Island. This rule applies if all of the following conditions are met:
- a person (including a corporation);
- used (or took definite steps to use) a plant variety or a dependent plant variety;
- only in Norfolk Island;
- between 1 July 2016 and 30 June 2017; and
- the plant variety was protected under the PBR Act in Australia before 1 July 2017.
If those conditions are met, then the person can make any use of the plant variety on Norfolk Island after 1 July 2017, without infringing the PBR in the variety.
For example, in December 2016 a person on Norfolk Island was making some use of a plant variety. The plant variety was protected under the PBR Act in Australia, but not in Norfolk Island (which did not have its own PBR legislation). Under this transitional arrangement, that person can continue to make any use of the plant variety on Norfolk Island after 1 July 2017 without infringing the PBR in the variety.
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