It has been several months since the new Plant Variety Rights Act 2022 (New Act) entered into force in New Zealand, with the goal of modernizing its intellectual property (IP) regime to accommodate a number of updates in plant breeding, both locally and internationally.1 The New Act broadly harmonises the protection of plant varieties in New Zealand with Australia and other countries, although there are still some interesting differences that make the New Zealand system distinct and which practitioners and breeders need to keep in mind. In the following article, we explain the effect of some of the key changes and consider how they compare to existing laws across the Tasman Sea in Australia.
As many readers will know, the New Act replaced the outdated Plant Variety Rights Act 1987 (Old Act) and finally places New Zealand in compliance with both the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) and the International Convention for the Protection of New Varieties of Plants (1991 revision, UPOV-91).2 These updates, which are outlined below, were intended to encourage local innovation and harmonise protection of plant varieties with other countries, including Australia.
Extended Protection for Certain Varieties
Two changes of note under the New Act are that the length of protection for woody plants has been extended to a maximum of 25 years from the date of grant as opposed to 23 years under the Old Act and potato varieties now enjoy a protection term of up to 25 years.3 For all other plant varieties, protection remains up to 20 years from the date of grant.4 The duration of protection offered in New Zealand now largely aligns with the Australian Plant Breeder's Rights Act 1994 (PBR Act), although potato varieties do not enjoy an extended term under the PBR Act. However, breeders may be interested to note that the extended term of 25 years is afforded to 'trees and vines' under both the PBR Act and UPOV-91 but in the New Act this term extension is provided for 'woody plants'.5 There is no definition of a woody plant in the New Act or Regulations, potentially making New Zealand's version of this provision broader than that of its counterparts.
Replanting of Farm Saved Seed
Readers may recall that under the Old Act, farmers in New Zealand enjoyed the right to replant seed harvested from legitimately purchased varieties without fear of infringement. This was because the Old Act only specified that PVR rights extended to producing for sale or selling reproductive material of a plant variety.6 By contrast, farmers in Australia were subject to the more strictly defined legislation of the PBR Act, which included as infringements the production or reproduction of protected propagating material, and its conditioning for these purposes. Following the current legislative update, breeders will now enjoy stronger rights, since the New Act introduces similar infringement provisions to those of its Australian counterpart, including extending a grantee's rights to the production or reproduction, conditioning, marketing, and importing or exporting of propagating material.7 Harvested material is now also protected, if the rights holder has not had the opportunity to exercise their rights to the propagating material.8
Both the Australian and new New Zealand legislation include a specific, but limited, exemption for the re-use of farm saved seed on the farmer's own land. For the time being, however, farmers in New Zealand will still enjoy comparatively broader freedom to operate because, as currently enacted, the New Act only requires seed to have been lawfully obtained on a previous occasion and not the previous occasion.9 The corresponding legislation in Australia is more strict in this regard and generally limits the use of farm saved seed to a single generation,10 We caution that the New Act Regulations may restrict certain activities of farmers in the future and such as requiring farmers to pay a rights holder to use farm-saved seed.11
Essentially Derived Varieties
A welcome addition to the New Act for rights holders was the inclusion of protection for "essentially derived varieties", which was conspicuously absent from the Old Act. This has the effect of extending a grantee's rights to plant varieties predominantly derived from, but also clearly distinguishable from, the protected variety while still retaining the essential characteristics of the protected variety.12 While the wording of this provision in the New Act is almost identical to the definition of an essentially derived variety in UPOV-91, it differs from the corresponding provision in the PBR Act since the latter defines an essentially derived variety as 'not exhibit[ing] any important (as distinct from cosmetic) features that differentiate it from that other variety' (emphasis added).13 The reference to important features in the PBR Act as opposed to essential characteristics in the New Act may or may not have practical implications, but one still wonders why this wording was chosen in Australia (for example, we wonder if a feature can be important but not essential?).
The New Act also introduces a new requirement for compulsory licenses in that they should only be granted if it is in the interest of the public.14 Notably, when the Commissioner considers a compulsory license application, he or she must have regard to 'whether the PVR holder has had a reasonable opportunity to make the relevant plant varieties available; and the desirability of encouraging innovation in plant breeding'.15 By contrast, the current Australian provisions merely allow a rights holder to be heard by the Commissioner before making a decision, which, interestingly, is closer to the wording of the old New Zealand Act.16 The New Act provisions therefore appear to be stronger in this respect than the corresponding Australian provisions, since they give a rights holder clear legislative basis for making a case that a compulsory license should not be granted.
Maori Plant Varieties Committee
The new Act creates a new, modern Plant Variety Rights regime that meets responsibilities to Maori under the Treaty of Waitangi. In this regard, a Maori Plant Varieties Committee will be established, having the power to assess, and impose conditions on or ultimately refuse, a PVR application if Maori interests under the Treaty are affected.17 Currently, there are no provisions concerning Indigenous Knowledge (IK) in Australia under the PBR Act but there are initiatives under way in this regard.18
The above discussion highlights some of the notable changes to the protection of plant varieties in New Zealand under the New Act and how they compare with Australia. This welcome update in New Zealand will benefit both local and foreign plant breeders through extension of rights while ensuring that the interests of key stakeholders including farmers and Maori society are considered.
Spruson & Ferguson are specialists in plant patents and protection under Plant Breeder's Rights (Australia) or Plant Variety Rights (New Zealand). Should you have any questions please don't hesitate to contact us.
1 Plant Variety Rights Act 2022 (NZ) ss 2, 3 ('New Act').
2 Ibid s 3(a).
3 Ibid s 19(3)(a); Plant Variety Rights Act 1987 (NZ) s 14(2)(a) ('Old Act').
4 New Act (n 1) s 19(3)(b); Old Act (n 3) s 14(2)(b).
5 Plant Breeder's Rights Act 1994 (Cth) s 22(2) ('PBR Act'); New Act (n 1) s 19(3)(a).
6 Old Act (n 3) s 17(1)(a).
7 New Act (n 1) s 15(3).
8 Ibid s 15(2)(b).
9 Ibid s 16(6)(b).
10 PBR Act (n 5) ss 17(d),(e); Cultivaust Pty Ltd v Grain Pool Pty Ltd  FCA 638.
11 New Act (n 1) s 16.
12 Ibid s 8.
13 PBR Act (n 5) s 4(c).
14 New Act (n 1) s 109(1)(c).
15 Ibid ss 109(2)(b), (c).
16 Old Act (n 3) s 21(2); PBR Act (n 5) s 19(6)(b).
17 Ibid ss 58, 67(3).
18 Indigenous Knowledge Work Plan 2022-2023, IP Australia.
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