Elders Rural Services Australia Limited v Registrar of Plant Breeder's Rights [2011] FCA 384

FEDERAL COURT OF AUSTRALIA

Elders Rural Services Australia Limited v Registrar of Plant Breeder's Rights [2011] FCA 384 Citation: Elders Rural Services Australia Limited v Registrar of Plant Breeder's Rights [2011] FCA 384

Parties: ELDERS RURAL SERVICES AUSTRALIA LIMITED (ACN 004 045 121) and CAITHNESS POTATO BREEDERS LIMITED v REGISTRAR OF PLANT BREEDER'S RIGHTS and SECRETARY OF THE DEPARTMENT OF INNOVATION, INDUSTRY, SCIENCE AND RESEARCH OF THE COMMONWEALTH GOVERNMENT OF AUSTRALIA

File number: SAD 166 of 2010

Judge: LANDER J

Date of judgment: 19 April 2011

Catchwords: INTELLECTUAL PROPERTY – Plant Breeder's Rights and Plant Variety Rights – scope of operation of transitional provisions in Part 9 of the Plant Breeder's Rights Act 1994 (Cth) – effect of s 83 of the Plant Breeder's Rights Act 1994 (Cth) – whether an application for plant variety rights made under the Plant Variety Rights Act 1987 (Cth) which has not been disposed of at the time of the enactment of the Plant Breeder's Rights Act 1994 (Cth) is to be decided by reference to the Plant Variety Rights Act 1987 (Cth) or the Plant Breeder's Rights Act 1994 (Cth) – whether the applicant acquired plant breeder's rights under the Plant Breeder's Rights Act 1994 (Cth) in respect of an application for plant variety rights made under the Plant Variety Rights Act 1987 (Cth) which had been accepted but not granted at the time the Plant Breeder's Rights Act 1994 (Cth) came into force INTELLECTUAL PROPERTY – Plant Breeder's Rights and Plant Variety Rights – duration of a grant of plant variety rights – whether a grant of plant breeder's rights under the Plant Breeder's Rights Act 1994 (Cth) in respect of an application made 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 STATUTORY INTERPRETATION – power of the Court to interpret legislation as if additional words were included – whether the words "save that a successful applicant will be granted PBR pursuant to the provisions of the Act" should be added to end of s 83 of the Plant Breeder's Rights Act 1994 (Cth)