Plant Variety Rights Protection in New Zealand
[ Last Updated 4 January 2006 ]
Contents
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What Is a Plant Variety Right?
In New Zealand, protection is provided for new plant varieties through the provisions of the Plant Variety Rights Act 1987 ("the Act"). The grant of a plant variety right (PVR) gives the owner the exclusive right to produce for sale and to sell reproductive material of the variety concerned. A variety that is the subject of a PVR is referred to as a "protected variety".
International Plant Variety Right Law
As a Member of the World Trade Organisation (WTO), New Zealand is a party to the Agreement on the Trade-Related Aspects of Intellectual Property Rights 1994 (the TRIPS Agreement). Article 27.3(b) of the TRIPS Agreement requires WTO Members to provide for the protection of PVRs either by patents or by an effective sui generis system, or by any combination thereof.
The International Union for the Protection of New Varieties of Plants (UPOV) has established an international framework for PVRs through the UPOV Convention.
New Zealand has ratified the 1978 revision of the UPOV Convention but has not ratified the 1991 revision (although the current review of the Act is considering whether it is appropriate for New Zealand to do so).
What Qualifies for Plant Variety Right Protection under the Plant Variety Rights Act 1987?
The conditions for granting a PVR are:
- Novelty: the variety must not, for more than one year, have been offered for sale or marketed with the consent of the breeder in New Zealand, nor for more than four years (six years for grapevines and trees) in any other State. Therefore, novelty arises in a commercial sense, not in the sense that the plant is necessarily a "new" development.
- Distinctness: The variety must be clearly distinguishable by one or more important characteristics from any other variety whose existence is a matter of common knowledge;
- Stability: The plant must be stable in its essential characteristics;
- Denomination: The variety must be given a denomination enabling it to be identified.
A PVR will only be granted when the Plant Variety Rights Office, the government agency responsible for the granting of PVRs, has determined that the variety fulfils the above criteria.
Exceptions to the Rights Granted under a Plant Variety Right
The grant of a PVR does not prevent others from:
- growing or using a protected variety for non-commercial purposes;
- using the plants or parts of the protected variety for human consumption or other non-propagating purposes; or
- using a protected variety for the purpose of plant breeding (although the repeated use of a protected variety for the commercial production of F1 hybrid seed is not permitted without the authority of the holder of the Right).
Rights Conferred by a Plant Variety Right
The Act gives PVR owners the exclusive right to:
- produce for sale and to sell, reproductive material of the variety concerned;
- propagate that variety for the purposes of the commercial production of fruit, flowers, or other products of that variety (if the variety is a plant of a type specified by the Governor General by order in Council).
How Long Does Plant Variety Right Protection Last?
PVRs are granted for a term of 20 years in the case of non-woody plants, or 23 years in the case of woody plants, beginning from the date when rights are granted.
How Do You Protect Your Plant Variety?
To apply for a PVR, the applicant is required to submit an application form and pay the required fee.
Application forms and fees should be posted to the Plant Variety Rights Office.
How Much Does It Cost?
The fees for obtaining PVR protection are subject to change. The current fees can be viewed on the Plant Variety Rights Office website.
Plant Variety Rights Protection Overseas
New Zealand breeders wishing to obtain plant variety protection in another country must make application in that country. Such applications should be made through an agent in that country. New Zealand's ratification of UPOV 1978 also means that New Zealand plant breeders may obtain protection for their new varieties in all other UPOV Member states.
Further Information
Contact Details - Legislative Development
Latest Developments
→ Latest Developments in Intellectual Property in New Zealand
Useful Websites
→ Useful Intellectual Property-Related Websites
Registering a Plant Variety Right
More Detailed Information
The Plant Variety Rights Office has also prepared a more detailed pamphlet on plant variety right protection.
Legal Advice
The Ministry of Economic Development is not able to provide legal advice. If you have concerns about your legal position, please contact a legal professional familiar with the law relating to intellectual property. You can search for an intellectual property lawyer in the following places:
- in the Yellow Pages;
- on the website of the New Zealand Law Society where you can find the district law society nearest you. The district law society may be able to assist you in finding a legal professional; or
- you can view the list of New Zealand registered patent attorneys on the IPONZ website (Go IPONZ → Information Library → Patent Attorney Information → Registered New Zealand Patent Attorneys).
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