FFC puts hot potato to rest

The Full Federal Court has clarified a drafting error in the transitional provisions of the Plant Breeder’s Rights (PBR) Act 1994 in Elders Rural Services Australia Limited v Registrar of Plant Breeder’s Rights [2012] FCAFC 14.

The Plant Breeder’s Rights (PBR) Act 1994 (the new Act) commenced on 10 November 1994, and repealed the Plant Variety Rights Act 1987 (the old Act). However, while transitional provisions provided that all existing rights granted under the old Act (PVR) were converted into Plant Breeder’s Rights (PBR) under the new Act; any applications that were pending at the commencement of the new Act (PBR) remained subject to the provisions of the old repealed act (PVR).

Furthermore, the old PVR Act provided a 20 year term from the date of acceptance, conversely the new PBR Act provides a 20 year term from the date of grant. This discrepancy coupled with the potential delay between acceptance and grant, could result in a difference in the term of protection of up to 3 to 4 years for all ‘rights’ that were pending on 10 November 1994, if the rights existed at all. The Federal Court considered the matter with respect to the ‘Nadine’ potato; the associated rights to which were initially accepted under the old PVR Act, but ultimately granted after commencement of the new PBR Act.  At first instance, the primary judge held that such a drafting error cannot be redrawn by the Court, but is instead a matter for Parliament.

The Full Federal Court subsequently sought to clarify the inconsistency in the transitional provisions of the new Act with respect to the ‘Nadine’ potato. With regard to whether rights existed in view of the old repealed Act, the Court held that ‘either the [applicant] acquired PBR under the new Act by reason of the grant that occurred on 16 August 1995 or it acquired no right at all.’ Furthermore, with regard to the duration of the rights, the Court held that the term must be calculated from date of grant rather than date of acceptance. The Court’s findings that pending PVR rights are protected by a grant of full rights under the PBR Act appears to be the most appropriate outcome. For the ‘Nadine’ potato, the term of protection has ultimately been extended until to 16 August 2015 (an additional three years).