Plant Variety Rights are a form of intellectual property for breeders of new varieties of plants. The number of PVR grants is small in comparison with patents or trade marks but they are important commercial assets for fruit exporters. In addition, local growers of seasonal plants are able to protect their investments in new varieties by exporting produce from the plants during the northern hemisphere dormant seasons, and through licensing growers in the northern hemisphere under PVRs in those countries during their growing seasons.
To be eligible for a PVR grant a variety must be new, distinct, uniform and stable. Each variety must have a name (its denomination), which it retains even after the grant has expired. The process for obtaining a PVR grant involves an inspection of plants of the variety and comparing them with the plants of the most similar variety for distinctness. The sample population of plants is also examined to ensure that they meet standards of uniformity. Finally, the plants are propagated to ensure that successive generations remain true to type (stable). For varieties that grow quickly the process can be completed within one or two seasons. For fruiting varieties, the examination cannot start until plants are producing mature fruit. For trees, it can take years before they are sufficiently mature to be examined. In short, the processing is entirely dependent on the type of plant, and the eligibility determinations are type specific.
A variety is “new” if the variety has not been sold in New Zealand more than one year before a PVR application is filed. For varieties from outside New Zealand the no sale period is four years for non-woody plants, and six years for woody ones.
While it is tempting to give a new variety a catchy name, that name remains exclusive to the PVR owner only so long as the right remains in force. After that, anyone can exploit the variety and use its name. Therefore, the denomination should be unattractive for a competitor to use when it is able to do so. Trade marks are the way to protect the names of new varieties.
The term of a PVR grant is 20 years for non-woody varieties and 23 years for woody varieties. The term starts from the date of grant, subject to the payment of annual renewal fees. In addition, there is provisional protection for a variety from the date of filing an application, but that protection is lost if no grant results.
The rights protected by a PVR grant (subject to some exceptions) are the rights to produce for sale and to sell reproductive material of the variety in New Zealand. For some types of plants, producing reproductive material of a protected variety for the commercial production of harvested material is also covered. This means that if one protected apple tree is purchased legitimately, but unauthorised cuttings from that tree are grafted to establish a whole orchard with trees for the sale of fruit, the additional trees would be infringing the PVR.
New Zealand’s PVR laws are in the course of being changed. In 1991 the UPOV convention that establishes standards for national laws was expanded to include additional categories of exclusive rights. After a lengthy process, a new PVR law meeting UPOV 1991 standards is expected to come into force in New Zealand by 2023. Under the new law: the eligibility requirements remain unchanged; the term for woody plants or their root stock and potatoes is to be 25 years, but 20 years for all other types of plants; and the rights protected will be significantly extended. To comply with the Treaty of Waitangi, a variety of indigenous plant may be denied protection if the grant of a PVR for that variety adversely affects kaitiaki (a Maori “guardianship” relationship) interests in that variety and the adverse effect cannot be mitigated.
The new law will only apply to applications filed after it comes into force.
The rights in propagating material of a variety to be protected under the new law are: production or reproduction, conditioning for the purpose of propagation, selling or offering for sale or other marketing, importing or exporting, and stocking for the purpose of doing any of the above. In addition, the rights extend to varieties essentially derived or dependent from a protected variety, and to material harvested from a protected variety. The meanings of all of the terms of these rights are defined in the law. In addition, the rights are subject to exceptions along the lines of the 1987 Act.
The possible exclusions for varieties of indigenous plants are derived from the recommendations made by the Waitangi Tribunal in its landmark 2011 Wai 262 Report. The determination of whether there is a kaitiaki relationship with a new variety, whether a PVR grant would adversely affect that relationship, and whether or not the adverse effect can be mitigated are all the responsibility of a Māori Plant Varieties Committee.
The appointment of members of the Committee is to be made by the Commissioner of PVRs who is required to be satisfied of their knowledge of Māori traditional knowledge, protocol and culture, world view and taonga species – as well as mana and relevant skills to participate in the Committee. It will be required to issue guidelines before commencing its activities. It will commence operations no later than 12 months after the rest of the Act comes into force.
One intention of the legislation is for the committee to encourage and facilitate early consultation between a breeder and kaitiaki. If agreement has not been reached from that consultation, or if there has been no prior consultation, but a PVR application is lodged for the variety, the Commissioner must refer the application to the Committee and then only continue the examination if the Committee has raised no objection or has decided that the application may only proceed with conditions.
The existence and procedures of the Committee are breaking new ground in intellectual property law. Until guidelines have been issued, it is too early to say how this all will work in practice.
New Zealand plant breeders can also obtain exclusive rights in their new varieties of plants in Australia. The Australian Plant Breeders’ Rights Act 1994 is based on the standards set by UPOV 91. It is similar in this respect with the Plant Varieties Bill in New Zealand, but without the special treatment of varieties of indigenous plants.
The eligibility requirements for a PBR grant are that the variety must be distinct, uniform, stable, and new, as in New Zealand. While a variety must be distinct from any other variety of common knowledge, the law provides that a variety is to be treated as one of common knowledge from its filing date if an application for a PVR or a PBR has been made for the that variety in another country, but only if that application has gone to grant. However, a PBR may be entitled to its New Zealand filing date if it is filed within 12 months of filing in New Zealand.
As in New Zealand, a variety must have a name. If a name has been accepted for the variety in a corresponding New Zealand PVR application, it may be used for a PBR application.
The examination procedure in Australia is more detailed than in New Zealand. A PBR applicant must file a general information form outlining the origin of the variety and its properties. With that form the applicant must name a qualified person who is to oversee the remaining stages of the examination process, including preparation of a detailed description and growing trials. A qualified person is certified by the Australian PBR Office and must be paid for by the applicant.
In addition, an applicant may be required to deposit propagating material of the variety in a genetic resource centre or supply a specimen plant to an herbarium.
The rights protected meet the UPOV 91 standards, much like the rights in the New Zealand PVR Bill. They are the exclusive right in propagating material of the variety to: produce or reproduce the material; condition the material for the purpose of propagation; offer the material for sale; sell the material; import the material; export the material; and stock the material for any of the purposes described above.
The rights also include rights in essentially derived and dependent varieties, and to harvested material and further to products from harvested materials in some defined circumstances. Apples are an example of a harvested material and apple cider an example of a product of harvested material.
There are also exceptions to the rights such as acts done for private, experimental or breeding purposes, and farm saved seed on a farmer’s land.
The term of PBRs is 25 years for vines and trees and 20 years for all other types of plants. The term begins on the day that a PBR is granted. PBR grants are subject to annual renew fees.
Australian PVR law is characterised by its many definitions and its very prescriptive nature. Legal advice should always be sought in its interpretation.
In Australia, patents have been granted for new varieties of plants and associated components and products in the past. However, recent court decisions invalidating patents for naturally occurring genes have cast doubt on whether this will continue.
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