Cultivaust Pty Limited v Grain Pool Pty Limited

(2005) 147 FCR 265; [2005] FCAFC 223

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Interrogate

Catchwords

1. Intellectual Property
2. › Plant Breeder's Rights
3. › Infringement
4. › Food exemption
5. › Whether acts of offering for sale, selling, exporting and stocking propagating material for use as food infringed PBR
6. › Whether word 'enables' in s 18(1)(b) required causal link
7. › Whether s 18 applied to harvested material deemed propagating material under s 14
8. › Plant Breeder's Rights Act 1994 (Cth), ss 11, 14, 17, 18
1. Practice and Procedure
2. › Costs
3. › Discretion of trial judge
4. › Whether costs should follow the event where constitutional questions not determined
5. › Costs of appeal books
6. › Needless inclusion of material in appeal books

Quick Take

Section 18 of the Plant Breeder's Rights Act 1994 (Cth) (since repealed) applied to harvested material that was also propagating material, meaning that for grain varieties, the food exemption constituted a very significant derogation from PBR. The word 'enables' in s 18(1)(b) did not require a causal link between the act and the material becoming capable of use as food; it was sufficient that the act was followed by such use. Section 18 was an additional exception not contemplated by the 1991 UPOV Convention. Note that s 18 was repealed by the Plant Breeder's Rights Amendment Act 2002 (Cth), limiting the ongoing significance of this interpretation.