What is a plant variety right (PVR)?
A grant of Plant Variety Rights for a new plant variety gives you the exclusive right to produce for sale and sell propagating material of the variety. In the case of vegetatively-propagated fruit, ornamental and vegetable varieties, Plant Variety Rights give you the additional exclusive commercial right to propagate the protected variety for the commercial production of fruit, flowers or other products of the variety.1
Benefits of a PVR
As a Plant Variety Rights holder you may license others to produce for sale and to sell propagating material of the protected variety. Rights holders commonly collect royalties from the commercialisation of their protected varieties.
As with other types of proprietary rights, you may bring civil action against persons or businesses infringing your rights. For example, as a Rights holder you would be entitled to seek an injunction against, or if appropriate, claim damages from, another person or business that deliberately sold seeds or plants of the protected variety without your permission.
As a Rights holder you can also take action against another party using the approved denomination (registered name) of your protected variety to sell propagating material of another variety of the same genus or species.
Like other personal property, the Rights to a protected variety may be sold, licensed, mortgaged or assigned to another person or business.
The protection given to a breeder by a grant of Plant Variety Rights resembles that given to an inventor by a patent grant, but there are significant differences between these two forms of intellectual property rights. This means that you cannot use the term "patent" when referring to a variety protected by the Plant Variety Rights Act.
Limits or exceptions to a grant-holder’s Rights
Other persons are free to:
- grow or use a protected variety for non-commercial purposes
- use the plants or parts of the protected variety for human consumption or other non-propagating purposes
- use a protected variety for 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 Rights holder).
The kinds of plants in the Rights scheme
Plant Variety Rights are presently available for varieties of any kind of plant other than algae and bacteria.
Note: Following international custom in the world of plant variety protection the word "variety" is used not in the sense of a "botanical variety" but rather as being synonymous with "cultivar" or "cultivated variety".
Criteria used to determine eligibility for Rights
A grant of Plant Variety Rights may be made for a variety if:
- it is new
- it is distinct, uniform and stable - commonly abbreviated to DUS
- an acceptable denomination (variety name) is proposed
A variety is considered to be new if propagating material, whole plants or harvested material of it has not been sold or offered for sale with the agreement of the owner:
- in New Zealand for more than one year before the date of application, or
- overseas, for more than 6 years before that date in the case of woody plants, or more than 4 years in the case of non-woody plants.
The prior sale rules do not apply where:
- the sale is part of a contractual arrangement to increase the applicant's stock, or for evaluative trials or tests where all the material produced directly or indirectly, plus any unused propagating material, becomes or remains the property of the applicant; or
- any surplus plant material produced during the breeding, increasing of stock and trials or tests of the variety is disposed of for non-propagating purposes.
The variety must be distinct from all commonly known varieties existing at the date of application, in one or in some combination of the following characteristics: morphological (such as shape, colour) or physiological (such as disease resistance).
The variety must be sufficiently uniform.
The variety must remain true to its description after repeated propagation.
You must propose a denomination for the new variety that conforms to internationally accepted guidelines (see International Union for the Protection of New Varieties of Plants (UPOV)). If the denomination you propose is not acceptable the Commissioner will reject it and ask for an acceptable alternative.
Plant Variety Rights 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.
New Zealand is a member of the International Union for the Protection of New Varieties of Plants (UPOV).
1Image of ZESPRI™ GOLD & ZESPRI trade mark label showing the registered plant variety known as Hort16A. © ZESPRI Group Limited 2008. Reproduced with the permission of ZESPRI Group Limited. All rights reserved.