Another plant breeders’ rights decision–this time from the Federal Court of Australia in Melbourne. Graham’s Factree Pty Ltd v. Oak Enterprises (No. 1)  FCA 1033 (Fed. Ct. Austr. Sept. 14, 2012). The applicant, Graham’s Factree Pty Ltd, holds plant breeders’ rights under Australia’s Plant Breeder’s Rights Act 1994 (Cth) as to an apple variety known as “Rosy Glow.” Graham’s alleged that the respondent, Oak Enterprises, infringed its rights by producing, selling, and stocking propagating material of the variety without Graham’s permission. Graham requested that the court order a “split” (bifurcated) trial, with issues of liability to be determined prior to any consideration of the quantum of damages or an accounting for profits. In an order dated September 14, 2012, the court granted Graham’s motion.
The court explained that, unlike most civil litigation, “in intellectual property cases involving patents, trade marks, or plant breeders’ rights, it is customary to hear and determine issues of liability prior to issues of pecuniary relief.” Under the Plant Breeder’s Rights Act, an applicant who establishes that the respondent infringed its rights is entitled to make an election between damages or an account of profits made by the infringer. However, the applicant is not required to make that election until after evidence regarding the respondent’s liability has been received. If the trial is not split so that the matter of liability is heard separately from evidence regarding the relief to be granted, the parties must present evidence regarding both damages and an account of profits. In the present case, the court opined that, based upon its own experience, “the hearing and determination of quantum issues relevant to both damages and to an account of profits would greatly expand the effort, time, and costs of the parties and the court.” Because the court found “[t]he potential avoidance of the need for any trial on quantum and further preparation for trial on the assessment and calculation of damages and an account of profits” to be “a compelling advantage of a split trial,” the court “considered it just and convenient” to enter the order requested by Graham’s.
by Shawn N. Sullivan, Sept. 25, 2012.