Patents, trade marks and designs legislation allow the courts to award additional damages for infringement on top of those to compensate for the harm caused. Additional damages are awarded by punishment in cases of flagrant infringement rather than compensation and restitution, to deter further infringement.
Plant Breeder's Rights does not have this award. The former Advisory Council on Intellectual Property (ACIP) in its 2010 review of enforcement of Plant Breeder's Rights considered that this was inequitable and reduces the ability of Plant Breeder's Rights owners to enforce their rights. The government accepted ACIP's recommendation in June 2011 to amend the Plant Breeder's Rights Act to include exemplary damages, modelled on s122 of the Patents Act.
Consultation 23-Oct-2017 to 4-Dec-2017
Policy development 5-Dec-2017
In Parliament 28-Mar-2018
This item is included in the Intellectual Property Laws Amendment (Productivity Commission Response Part 1 and Other Measures) Bill 2018 and introduced to the Australian Parliament on 28 March 2018.
The Bill passed the House of Representatives on 27 June 2018. It is expected to be debated in the Senate in the Spring sitting of 2018.