6.8 PRACTICAL STEPS

Enforcement of Plant Breeder's Rights through civil action is the responsibility of the grantee and not IP Australia. Section. The grantee is the only person who can initiate a civil action for infringement of PBR under section 54 (1) of the Plant Breeder's Rights Act 1994.

The Plant Breeder's Rights Office is not involved in enforcement or taking civil action for infringement of Plant Breeder' Rights. This is consistent with other forms of Intellectual Property law where it is the responsibility of the grantee to enforce their rights. However others may also have a vested interest in ensuring that there is not infringement. These include licensees for a variety, growers who have the authority of the grantee and have generally paid a royalty to be able to grow the variety and investors who have paid for the breeding program. All these people are obtaining a commercial advantage from the variety and have generally paid for the privilege. they do not want to see other people having the advantages of the variety without authority or having paid for it. In Australia there have been very few actions for infringement. This is possibly because of the cost and difficulty of proving the infringement. At least one industry association is now looking at ways to assist its members where an infringement is suspected.

If a person suspects that their rights are being infringed they should seek legal advice to ascertain the steps to be taken. For civil action these might include:

	•	Examining the evidence of infringement to ensure that it is sufficient to substantiate an action - if not seek professional advice on how to obtain the right type of evidence
	•	A letter to the alleged infringer indicating that the writer is the grantee of PBR in the variety and seeking assurance that the person is not infringing the rights
	•	If the alleged infringer replies that they are not infringing, the grantee will need to obtain sufficient evidence to mount a prima facie case that there is infringement
	•	At this point a further legal letter could be sent to the alleged infringer indicating that the grantee will take action unless the infringement stops immediately. The grantee could also offer to meet with the alleged infringer or to initiate independent mediation prior to taking court action.
	•	At that point an action can be lodged in the Federal Court under Section 54 of the PBR Act.

It is important to note that at all steps, the grantee should take independent legal advice before proceeding, to ensure that the correct action and approach is initiated.

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