US plant patent practitioners – Australian legislative developments


[authors: Sarah Couper & Tom Gumley]

The Australian Government has issued draft legislation on the enforcement of Plant Breeders Rights (PBR) in Australia. This comes 12 months after the Government approved certain recommendations of the Advisory Council of Intellectual Property (ACIP) in its review: “A review of enforcement of Plant Breeder’s Rights”.

The objective of the draft Bill is to provide a cheaper, faster and more flexible forum for less complex PBR disputes. This is to be achieved through providing the Federal Magistrates Court with jurisdiction to hold proceedings for enforcement of PBR.

The Explanatory Memorandum to the draft Bill explains that the Federal Court should be well placed to hear PBR enforcement proceedings, as most disputes over PBR are less complex matters, and many of the parties involved are small businesses with limited resources. The Federal Court of Australia will remain as an option for enforcement of PBR in more complex disputes.

According to the draft Bill, the Federal Magistrates Court will be provided with the following powers:

  • to hear actions for infringement of PBR
  • to issue declarations for non infringement of PBR
  • to grant injunctions, and to order an account of profits or award damages
  • to refuse to order an account of profits or award damages where innocent infringement is established.

The public is now invited to comment on the draft Bill by 1 October 2012. A time table for enactment of the legislation has not been set, although given broad support for the legislative development, the expectation is that the enactment should occur within the next 12 to 24 months.

View copy of the ACIP review: A review of enforcement of Plant Breeder's Rights.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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