Use of foreign test reports for DUS testing in New Zealand
The Plant Variety Rights Act 1987 requires that protection can be applied for a variety in any plant genera, excluding bacteria and algae and that all DUS decisions are made using plant to plant comparisons in growing trials. The consequence of this requirement means that PVRO requires testing expertise and resources or access to expertise and resources for a large range of genera, which has practical limitations. In some cases, the variety belongs to a genus or species which is new to New Zealand or for which there is very little production or research experience nationally and overall knowledge is low. In other cases there may be significant production but no breeding or research activity in that genus. For varieties in these sorts of genera and species it may be better to use foreign knowledge and expertise for the NZ decision. The UPOV system provides for the possibility for member states to purchase each others test reports and utilise others genera expertise.
Purchasing DUS test reports from other UPOV member states
The agreed practice is for the report to be requested by the national authority to the corresponding authority, an inter authority relationship. Payment for the report may be made by the national authority or by the applicant and details of the specific purchasing arrangements vary between authorities. The cost of a test report is the internationally agreed price of 350 Swiss Francs, which usually has an equivalent of NZD 450.00 to 500.00. Agreed international practice recommends that the purchase of the report be made from the first authority which tested the variety. This is to avoid buying a test report of a test report. It is considered unfair to buy a report from an authority that may not have actually had any testing costs.
Criteria for the use of a foreign test report
There are no specific rules or firm guidelines that automatically dictate whether or not a foreign test report for a variety is acceptable. It is not possible to publish a list of genera where PVRO will use foreign test reports or a list which PVRO will not. Each application is assessed individually, dependent on that variety, using a range of factors. The following is a list of criteria which is applied to a variety and depending on the conclusion for each, determines whether or not use of a foreign test report is acceptable.
- Determine whether or not there have been prior foreign applications and whether or not a report could be available from an authority.
- Determine the level of genus or species knowledge, production or experience nationally, including prior applications and any testing in NZ. Also consider the cultural requirements for the variety e.g. greenhouse, open field.
- Determine whether or not there is a UPOV test guideline and the level of experience of the testing authority from which the report may be requested.
- Check whether or not that there are possible similar varieties in NZ, which may not be included in testing overseas. If there are similar varieties in NZ, have these been considered by the testing authority?
- Determine whether or not there may have been a variety of common knowledge which is relevant for the NZ application but was not considered relevant or did not exist at the time of testing overseas.
- Consider the importance, with respect to a NZ DUS decision, of any plant character which may be different or may change due to NZ's climate and environment, resulting in the variety description being significantly different from the variety as seen in NZ.
Decisions based upon the test report
For most varieties the test report will fully replace a NZ growing trial. When the test report is received the examination of the variety is carried out using that report. The examiner may wish to check any plant material of the variety which is available. In very few cases, a NZ growing trial may be required in addition to the purchase of the test report. This could be caused by some problem with the test report identified during examination or new variety of common knowledge information arising after the test report is requested or received.