Availability and supply of plant material for PVR purposes (2022 Act)

An application for Plant Variety Rights can be made before plant material of the variety is present in New Zealand. An exception applies to arable, vegetable, grass and pasture species where a supply of seed is required at the time of application, as per Section 38(2)(c) of the Plant Variety Rights Act 2022 and Section 37(1) of the Plant Variety Rights Regulations 2022.

Section 38 of the Plant Variety Rights Act 2022  — New Zealand Legislation

Section 37 of the Plant Variety Rights Regulations 2022  — New Zealand Legislation

For varieties without plant material present in New Zealand, the Plant Variety Rights Office (PVRO) will set out reasonable deadlines for plant material to be made available for PVR purposes. Should a deadline not be met, the application could become lapsed under Section 7(3) of the Plant Variety Rights Act 1987 or Section 48 of the Plant Variety Rights Act 2022.

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

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

Setting of deadlines

For most varieties which do not have plant material in New Zealand at the time of application, the PVR Office expects that importation into NZ quarantine occurs within 24 months of the application date. NZ quarantine includes any overseas facilities accredited for that species by the NZ Biosecurity authorities.

The applicant should notify the PVR Office when the plant material has been imported into quarantine. The applicant should then also notify the PVR Office when the plant material has been released from quarantine.

Once the plant material has been released from quarantine, the PVR Office will set a second deadline for this plant material to be made available for testing or examination purposes. This deadline, depending on the species, will be a maximum of 24 months following the release from quarantine.

Varieties with plant material stated as available at application

For applications that indicate on their Technical Questionnaire that plant material is present in New Zealand, the PVR Office expects that suitable plants for testing purposes will be available within a reasonable timeframe. As a general rule, this should be within 24 months of the application date as prescribed by Section 41(3) of the Plant Variety Rights Regulations 2022.

Section 41 of the Plant Variety Rights Regulations 2022  — New Zealand Legislation

If this deadline cannot be met, it is up to the applicant to contact the PVR Office and explain the situation. The contact should be as early as practicable and not close to or after the set deadline.

We recommend that the PVR Office’s plant material requirements are taken into consideration as part of plans to bulk up the variety or produce this for commercial evaluation or release.

Extension of deadlines

The PVR Office recognises that New Zealand has strict biosecurity regulations and notes that delays can occur during the quarantine process for a range of reasons. For many species, there may be difficulties during initial post quarantine propagation which prevents applicants having suitable plant material for PVR purposes soon after release from quarantine.

The PVR Office may extend deadlines on request from the applicant, provided that the reason for the delay is justifiable and explained in full. The setting of importation deadlines must have flexibility and take due account of matters outside of the control of the applicant or the PVR Office.

In addition to adherence to the formal deadlines, there is an expectation that applicants will keep the PVR Office informed of progress regarding the importation of their plant material. This includes their own importation timeline, Ministry of Primary Industries importation requirements, and any other relevant matters.

An application will not be permitted to continue if the wait for available plant material is unreasonably prolonged, or the testing timetable is indefinite.

Varieties without plant material requirements at application or for testing

For species and individual varieties where the PVR Office does not require seed at application or where a growing trial is not required in New Zealand, there is no requirement to specifically import or supply plant material for PVR purposes. In these cases, the PVR Office will not set importation or plant supply deadlines at the time of application. Whether or not there is plant material in New Zealand is a matter for the variety owner and their New Zealand agent.

It should be noted that Section 16(2) of the Plant Variety Rights Act 1987 and Section 48(5) of the Plant Variety Rights Act 2022 provide for the possible cancellation of a Right if plant material of any protected variety is not made available within a reasonable time following a request for official purposes. This includes a PVR growing trial for a candidate variety where the already protected variety is required for comparison or reference purposes.

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

Section 16 of the Plant Variety Rights Act 1987  — New Zealand Legislation