DUS growing trials that are delayed or discontinued

Background

The determination of distinctness, uniformity, and stability (DUS) is carried out in a growing trial using plant material supplied by the applicant for variety testing purposes. Unless evidence occurs that indicates otherwise, the basic assumption for all plant material used in DUS testing is that:

• The provided plant material is true to type.
• The provided plant material is sufficiently representative of the variety.

Plants of the candidate variety are evaluated and described, with the resulting description considered to be of the variety (and in effect, the intellectual property).

Responsibility of applicants

It is the responsibility of all owners, breeders, and agents to ensure that the supply of plant material at application, or for testing purposes, is truly representative of the variety and will express all characteristics required for testing. The timely determination of DUS requires confidence by the Examiner that the plant material supplied and evaluated is the variety under application.

When the basic assumption is in doubt

At any time during the growing cycle, the examiner may observe that the present plant material may not be consistent with the known descriptive features of the variety, as stated in the technical questionnaire supplied at application.

These differences in characteristics may be explained by cultural practice or the environment. However, if this does not seem to be the case then the Examiner will cease the evaluation and contact the applicant. Depending on the response from the applicant, the Examiner will either:

• Lapse the application.
• Allow the submission of additional or replacement plants.
• Extend the period for testing with another future growing cycle.

Lapse of application

In instances where the trial plants are not considered representative of the variety, and the applicant has provided no explanation or inconclusive information, the application could lapse under Section 48 of the Plant Variety Rights Act 2022 and Section 7 of the Plant Variety Rights Act 1987.

Section 48 of the Plant Variety Rights Act 2022 — New Zealand Legislation

Section 7 of the Plant Variety Rights Act 1987 — New Zealand Legislation

Allowance for replacement or additional plants

In some instances where the trial plants are clearly not the variety under application, and a genuine mistake has occurred when supplied, the Plant Variety Rights Office may allow the applicant to supply replacement or additional plants. A trial fee will be charged for the new trial.

Extension of the period for testing into a second future growing cycle

In certain situations, the evaluation may conclude within the current growing cycle, but the trial itself may continue using the same established plant material. In these instances, the evaluation will resume in the following season and a second trial fee will be charged. Applicants do not need to resupply plant material, but may encounter a delay in the Rights decision.

Exceptional circumstances

In instances where an evaluation cannot continue due to cultivation error or damage by a natural event:

• The applicant will be asked to resupply plant material for a new growing season.
• No trial fee will be charged for the original growing season. A trial fee will instead be charged for the new season.

If the trial fee for the original growing season has already been paid, this payment will apply to the new season instead.