Is there a difference between discovering the plant and discovering characteristics hitherto unknown about the plant?
In our view there is a difference, and the discovery of new characteristics in a plant variety does not amount to discovery of a plant under section 5. As discussed above, section 3 of the Act clearly defines ‘plant’ in terms of the broad types of botanical specimen which the word includes, whereas the expression ‘plant variety’ concerns the detailed characteristics of a botanical specimen. Discovering a plant merely means finding a physical example of a plant, and not discovering its particular characteristics. This view is consistent with section 45 of the Act, which provides that only one grant of PBR may be made in relation to a plant variety. Even if new characteristics of the plant were found, once the plant variety is registered it cannot be registered again. While the variety’s characteristics are important in determining whether it is distinct, stable and uniform, as required by section 43, what those characteristics actually are is not relevant. This is supported by the inter
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