Document ID: chunk:federal_register_of_legislation:C2024C00537:section:40:p1
Version: federal_register_of_legislation:C2024C00537
Segment Type: section
Provision Reference: s 40 (pt 1/4)
Character Range: 67842–70539

40  Essential derivation for PBR‑protected varieties—declaration
 (1) A person (an eligible person) may make an application under subsection (1A) if the person is:
 (a) the grantee of PBR in a plant variety; or
 (b) an exclusive licensee of such a grantee.
 (1A) An eligible person in relation to a plant variety (the initial variety) may apply in writing to the Registrar for a declaration that another variety (the second variety) is essentially derived from the initial variety if:
 (a) another person is the grantee of, or has applied for, PBR in the second variety; and
 (b) the eligible person is satisfied that the second variety is essentially derived from the initial variety; and
 (c) the initial variety has not itself been declared (under section 40 or 41D) to be essentially derived from another variety in which PBR has been granted.
Note 1: If the breeder of the second variety has not applied for, or been granted, PBR in the second variety, an eligible person may apply under section 41A for a declaration that the second variety is essentially derived from the initial variety.
Note 2: If an application for PBR in the second variety is made after an application is made under section 41A in relation to that variety, the application under section 41A may be treated as if it were an application under this section (see section 41F).
 (1B) The Registrar must notify the application under subsection (1A) to each eligible person in relation to the initial variety other than the applicant.
 (1C) If an eligible person in relation to a plant variety (the initial variety) applies for a declaration under subsection (1A) in relation to another plant variety (the second variety), that does not prevent another eligible person in relation to the initial variety also applying for a declaration under that subsection in relation to the second variety.
 (2) Nothing in this section implies that an eligible person in relation to a plant variety (the initial variety) may not, in relation to an application by another person for PBR in another plant variety (the second variety) that has been accepted but not finally determined:
 (a) make an objection, under section 35, to the granting of PBR in the second variety; and
 (b) in the alternative, if PBR is granted to another person in the second variety—apply under subsection (1A) for a declaration that the second variety is essentially derived from the initial variety.
 (3) If the second variety:
 (a) is the subject of an application for PBR; and
 (b) is also the subject of an application for a declaration of essential derivation;
then, unless and until the Registrar decides to grant the application for PBR:
 (c) the Registrar