Document ID: chunk:federal_register_of_legislation:C2021C00502:clause:1_41a:p1
Version: federal_register_of_legislation:C2021C00502
Segment Type: clause
Provision Reference: sch 1 cl 41A (pt 1/2)
Character Range: 20824–23640

41A  Essential derivation for non‑PBR‑protected second varieties—application for declaration

Circumstances in which application may be made
 (1) A person (an eligible person) may make an application under subsection (2) if the person is:
 (a) the grantee of PBR in a plant variety; or
 (b) an exclusive licensee of such a grantee.
 (2) An eligible person in relation to a plant variety (the initial variety) may apply in writing to the Registrar for a declaration under section 41D that another variety (the second variety) is essentially derived from the initial variety if:
 (a) PBR has not been applied for, or granted, 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.

Content of application
 (3) The application must:
 (a) be in the approved form; and
 (b) be accompanied by such fee (if any) as is prescribed by the regulations in respect of the application.
 (4) Without limiting what the approved form may require, the application must contain:
 (a) such information as is required by the form that is relevant to establishing, on the balance of probabilities, that the second variety is:
 (i) essentially derived from the initial variety; and
 (ii) a registrable plant variety within the meaning of section 43; and
 (b) either:
 (i) such information as is required by the form that is necessary to enable the Registrar to notify the application to the person (or persons) the applicant reasonably believes to be the breeder of the second variety; or
 (ii) evidence that the applicant cannot comply with subparagraph (i), despite taking reasonable steps to obtain the information mentioned in that subparagraph.
 (5) The Registrar must refuse to consider the application if satisfied that the applicant has failed to comply with subparagraph (4)(b)(i), unless the Registrar is satisfied that the applicant, after taking reasonable steps to obtain the information mentioned in that subparagraph, cannot do so.
 Note: A decision under this subsection is reviewable by the AAT under section 77.

Notifying other eligible persons and the breeder of the second variety
 (6) The Registrar must notify an application to:
 (a) each eligible person in relation to the initial variety other than the applicant; and
 (b) if the application includes sufficient information for the Registrar to do so—the person (or persons) the applicant reasonably believes to be the breeder of the second variety.
 (7) The notification of the application must include a statement to the effect that the application has been, or will be, published in the Plant Varieties Journal under