Elders Rural Services Australia Limited v Registrar of Plant Breeder's Rights [2012] FCAFC 14

Elders Rural Services Australia Limited v Registrar of Plant Breeder's Rights [2012] FCAFC 14

Because the old Act had been repealed before the grant on 16 August 1995, the second appellant could not have acquired plant variety rights under the old Act. Section 83 of the new Act preserved the old Act only for dealing with the pending application and objections, and implicitly required any successful post-commencement grant to be a grant of PBR under the new Act. Accordingly, the second appellant's PBR in the potato variety "Nadine" lasted for 20 years from the date of grant, 16 August 1995, expiring on 16 August 2015.

Jurisdiction
Australia
Judgment Date
29 February 2012
Procedural Posture
Appeal in Intellectual Property Proceedings Concerning Plant Breeder's Rights / Appeal From Elders Rural Services Australia Limited V Registrar of Plant Breeder's Rights [2011] FCA 384
Outcome
Appeal allowed; judgment of the primary judge set aside; declarations made that the second appellant is the titleholder of PBR in Nadine and that the PBR lasts 20 years from 16 August 1995 to 16 August 2015; respondents ordered to pay costs.
Legal Topics
['plant Variety Rights' "plant Breeder's Rights" 'transitional Provisions' 'repeal of Legislation' 'duration of Rights' "plant Breeder's Rights Act 1994 (cth)" 'plant Variety Rights Act 1987 (cth)']
['intellectual Property' 'statutory Construction' 'administrative Law'] ['plant Variety Rights' "plant Breeder's Rights" 'transitional Provisions' 'repeal of Legislation' 'duration of Rights' "plant Breeder's Rights Act 1994 (cth)" 'plant Variety Rights Act 1987 (cth)']

Case Brief

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Procedural Posture

Appeal in Intellectual Property Proceedings Concerning Plant Breeder's Rights / Appeal From Elders Rural Services Australia Limited V Registrar of Plant Breeder's Rights [2011] FCA 384

Legal Issues

  1. 1 ['Whether a grant of rights made on or after 10 November 1994 in respect of an application under the Plant Variety Rights Act 1987 (Cth) enjoys a term of 20 years from the date of acceptance or 20 years from the date of grant.' "Whether the second appellant acquired plant breeder's rights under the Plant Breeder's Rights Act 1994 (Cth) or only plant variety rights under the repealed Plant Variety Rights Act 1987 (Cth)." "Whether s 83 of the Plant Breeder's Rights Act 1994 (Cth) implied that any grant made after repeal of the old Act in relation to an old Act application was a grant under the new Act."]

Ratio Decidendi

Because the old Act had been repealed before the grant on 16 August 1995, the second appellant could not have acquired plant variety rights under the old Act. Section 83 of the new Act preserved the old Act only for dealing with the pending application and objections, and implicitly required any successful post-commencement grant to be a grant of PBR under the new Act. Accordingly, the second appellant's PBR in the potato variety "Nadine" lasted for 20 years from the date of grant, 16 August 1995, expiring on 16 August 2015.

Court Disposition

Appeal allowed; judgment of the primary judge set aside; declarations made that the second appellant is the titleholder of PBR in Nadine and that the PBR lasts 20 years from 16 August 1995 to 16 August 2015; respondents ordered to pay costs.

Orders

  • ['The appeal be allowed.' 'The judgment of the primary judge be set aside and in lieu thereof the Court makes the declarations and orders in paragraphs 3 to 6.' 'A declaration that the second appellant is the titleholder of plant breeder\'s rights (PBR) under the Plant Breeder\'s Rights Act 1994 (the Act) in respect...