Availability and supply of plant material for PVR purposes (1987 Act)

The content below relates to applications filed before 24 January 2023. If you filed your plant variety rights application after 24 January 2023, please refer to our Technical Guidance section for current guidance. 

Technical Guidance

Availability for Plant Variety Rights purposes

An application for Plant Variety Rights can be made before plant material of the variety is present in New Zealand, except for arable, vegetable, grass and pasture species where supply of seed is required at application under Section 5 (a) of the Plant Variety Rights Act 1987 and the Plant Variety Rights Regulation 1988 Part 1(5). 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 be lapsed under Section 7 (3) of the Plant Variety Rights Act 1987.

Setting of deadlines

For most varieties which do not have plant material in New Zealand at the time of application, the expectation is that importation into NZ quarantine occurs within 12 months of the application date. NZ quarantine includes any overseas facilities accredited for that species by the NZ Biosecurity authorities. Following notification from the applicant that plant material has been imported into quarantine, the PVRO should be notified again by the applicant when the material has been released from quarantine. At this point, the second deadline will be set for plant material to be made available for testing. This deadline, depending on the species, is a maximum of 24-30 months following the release from quarantine.

Varieties with plant material stated as available at application

For applications that indicate on the Technical Questionnaire that plant material is present in New Zealand, PVRO expects that suitable plants for testing purposes will be available within a reasonable timeframe. As a general rule, this would be within 12 to 18 months of the application date. If this deadline cannot be met, it is up to the applicant to contact PVRO and explain the situation. The contact should be as early as practicable and not close to or after the set deadline. It is recommended that PVR plant material requirements are taken into consideration when planning variety bulking up and plant production for commercial evaluation or release.

Extension of deadlines

It is recognised that New Zealand has strict biosecurity regulations and 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. Deadlines may be extended on request from the applicant providing 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 PVRO.

In addition to adherence to the formal deadlines, there is an expectation that applicants will keep PVRO informed of progress regarding when importation can be expected, their own importation timeline, Ministry of Primary Industries importation requirements which may cause delays and any other relevant matters.

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

Varieties without plant material requirements at application or for testing

For species and individual varieties where PVRO does not require seed at application or where a growing trial is not required in New Zealand, there is no requirement to import or supply plant material for PVR purposes. In these cases there will be no importation or plant supply deadlines set by PVRO at application and whether or not there is plant material in New Zealand is a matter for the variety owner and their NZ agent. It should be noted, however, the Plant Variety Rights Act 1987 Section 16 (2) provides for possible cancellation of a Right if plant material of any protected variety is not made available in 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.