Extension of the Plant Breeder's Rights to cover harvested material and products

Section 14 of the Plant Breeder's Rights Act 1994 gives the breeder the opportunity to exercise Plant Breeder's rights over the harvested material, as if it were propagating material when:

• propagating material of a plant variety covered by PBR is produced or reproduced without the authorisation of the grantee and
  
• the grantee does not have a reasonable opportunity to exercise the grantee's right in relation to the propagating material and
  
• material is harvested from the propagating material.

All three elements must be present.

Similarly Section 15 provides that if the grantee has not had reasonable opportunity to exercise rights over the propagating material or the harvested material, then (s)he can do so over products from the harvested material.

In Cultivaust Pty Ltd v Grain Pool Pty Ltd [2004] FCA 638 Mansfield J in the Federal Court of Australia found that there are two distinct elements to the test for whether or not the right can be extended to cover the harvested material (and by extrapolation 3 test for right to apply to products from the harvested material):

• propagating material of a protected variety has been produced or reproduced without the grantee's permission
  
• the grantee has not had reasonable opportunity to exercise the right over the propagating material (for Section 14) or the harvested material (for section 15).

In the Cultivaust case Mansfield J held that Cultivaust had know that people were propagating the variety without authority but had not taken action, and were thereby deemed not to be able to exercise section 14 or 15.

Go to Section 3.2 Applications

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