2. Background
What Are Plant Variety Rights?
10. In New Zealand, protection is provided for new plant varieties1 through the provisions of the Plant Variety Rights Act 1987 ("PVRA 87"). New Zealand has ratified the 1978 revision of the UPOV Convention2 ("UPOV 78") and has been a member of the International Union for the Protection of New Varieties of Plants (UPOV) since 1981.
11. The grant of a Plant Variety Right ("PVR") under the PVRA 87 gives the owner of the PVR the exclusive right to produce for sale, and to sell,3 reproductive material of the variety concerned [section 17(1)(a) of the PVRA 87]. A variety that is the subject of a PVR is referred to as a "protected variety".
12. In the case of vegetatively propagated fruit or vegetable producing varieties or ornamental varieties,4 the owner of the PVR also has the exclusive right to reproduce the variety for the purposes of the commercial production of fruit, flowers or other products of the variety.5 A PVR lasts for 23 years from the date of grant of the PVR in the case of woody plants or their rootstocks, and for twenty years for all other plant varieties [s14 of the PVRA 87]. Plant variety rights are considered personal property and may be sold, assigned or licensed.
13. The grant of a PVR under the PVRA 87 does not prevent the sale of reproductive material of a protected variety (such as grain) for human consumption or other non-reproductive purposes, or the use by farmers of seed saved from a previous year's harvest. The reproduction, or use, of a protected variety for non-commercial purposes, does not infringe a PVR.
14. A PVR does not prevent others from breeding and selling a new variety derived from a protected variety, as long as production of the new variety does not require repeated use of the original protected variety. That is, if each lot of reproductive material of the new variety can only be produced using the protected variety, then the sale of the new variety would be an infringement of the PVR right for the protected variety. An example of this would be the production of a hybrid seed variety, which requires the use, each time, of the seed of a protected inbred variety.
15. The main requirements for the grant of a PVR are that the plant variety must be new, distinct, homogenous, and stable. These terms are defined in section 10(4) and (5) of the PVRA 87:
- a variety is considered to be "new" if there has been no sale of that variety in New Zealand earlier than 12 months before the date of application for a PVR, or if there has been no sale overseas earlier than 6 years before the date of application (for woody plants) or earlier than 4 years for all other plants;
- a variety is "distinct" if it is distinguishable from any other known variety by one or more characteristics, for example, colour of flowers, time of flowering, dimensions of leaves;
- a variety is "homogeneous" if, subject to the normal variation expected from its method of propagation, it is uniform in its relevant characteristics.
- a variety is "stable" if it remains true to its description after repeated reproduction or propagation.
Why Grant Plant Variety Rights?
16. The development of a new plant variety can be a long and costly process. The grant of a PVR allows a breeder to control the commercialisation of a new variety, and gives the breeder an opportunity to make a return on the breeder's investment in research and development of the new variety. This encourages research and investment in the development of new plant varieties. The presence of PVR protection also encourages the commercialisation in New Zealand of foreign-bred varieties. Without the protection provided by PVRs, foreign plant breeders may be reluctant to allow their new varieties to be sold in New Zealand.
17. The availability of PVRs has increased the level of investment in plant breeding in New Zealand. After the enactment of New Zealand's first plant variety protection law, the Plant Varieties Act 1973, investment in plant breeding increased rapidly, before peaking around 1984 and declining to a level approximately twice that in 1975.6
18. The provision of statutory protection to new plant varieties enables farmers, horticulturists, and home gardeners to gain access to a larger range of improved varieties than might be the case if no protection was provided. This benefits not only plant breeders, but also society as a whole. The agricultural sector is a major contributor to New Zealand's economy. If New Zealand farmers do not have access to improved varieties, then they may be placed at a disadvantage compared with farmers in other countries who do have access to such varieties.
19. New Zealand's ratification of UPOV 78 also means that New Zealand plant breeders may obtain protection for their new varieties in all other UPOV member states.
International Obligations
20. Article 27(3)(b) of the WTO TRIPs Agreement7 requires member states to provide protection for plant varieties either by patents or by an effective sui generis (stand alone) system, or a combination of the two. Article 27(3)(b) also allows member states to exclude plants (among other things) from patent protection. As mentioned earlier, New Zealand is also a member of UPOV, and has ratified UPOV 78. UPOV 78 requires New Zealand to provide the level of protection for plant varieties specified in UPOV 78.
How Are Plant Variety Rights Granted?
21. PVRs are granted by the Plant Variety Rights Office under the authority of the Commissioner of Plant Variety Rights. The Plant Variety Rights Office is part of the Operations Branch of the Ministry of Economic Development. The office is situated at Lincoln, near Christchurch. Eligibility for the grant of a PVR is, in most cases, determined through growing trials in New Zealand. Different procedures apply to different categories of plants. Information about the Office and the administration of the PVRA 87 can be obtained from the Office's website.
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