3.4 PROVISIONAL PROTECTION

Provisional protection under Section 39 of the PBR Act protects varieties during the period between the application being accepted and the final granting of rights. It means that if rights are eventually granted, the grantee can then take action retrospectively on infringements between the time of application and the time of granting of rights – if this period is longer than 12 months after the date of publication of the detailed description, the applicant will have to apply for an extension.

The Secretary may be prepared to extend provisional protection to allow an applicant time to supply additional information to support their application. Requests for extensions of provisional protection should be made prior to expiry of the provisional protection setting out:

	•	progress which has been made toward finalisation of the application;
	•	reason(s) for requesting the extension;
	•	the length of the extension which is being sought (maximum twelve months); and
	•	whether or not the variety has been commercialised.

Section 39(2) outlines conditions under which the Secretary may notify the applicant that provisional protection no longer applies. This includes withdrawal of application, PBR will not or is unlikely to be granted, and the applicant has agreed not to commence proceedings for an infringement.

For varieties lodged prior to November 1994 and now commercialised, the examination fee must be paid before a request for an extension can be considered.

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