The duration of DUS testing and fee requests (2022 Act)

Standard length of testing

At the time of application or during the preliminary examination, the examiner will advise of an anticipated examination timeframe and an expected length of testing for distinctness, uniformity and stability (DUS).

• For an ornamental species, this will usually involve one growing season.
• For a fruit species, this will often involve two growing seasons.
• For agricultural or vegetable crops, this will generally involve two or more seasons.

The trial details and anticipated testing timetable are based on known factors. These include the time of year an application is made, the availability of plant material and the requirements for growing plants in that genus. The cultivation of plants is subject to many variables, not all of which can be controlled or managed. In line with this, the timetable will have provision for extension if necessary.

For foreign bred varieties without plant material in New Zealand at application, the testing timetable will not be set out until plant material has been imported and released from quarantine.

You can find more information about our guidelines on the availability of plant material in our technical guidance documents.

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

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

Trial fees and examination fees are separate fees. These will be charged at different points in the application:

• The prescribed trial fee is charged for each growing trial for annual species, and each evaluation season for perennial species. If the standard evaluation period is two seasons, then a trial fee will be charged for each season.
• The prescribed examination fee is charged prior to the final examination, once all testing has been concluded.

Additional testing due to growing trial deficiencies

Some growing trials and DUS evaluations may be disrupted due to weather or other unavoidable events.

In some situations, the results from a disrupted trial will not be adequate for a DUS decision. An examiner may also be unable to make a DUS recommendation due to incomplete information directly caused by an unavoidable event. In these instances, the Plant Variety Rights (PVR) Office may waive the trial fee for additional future testing.

These situations will not impact examination fees in most cases. The examination fee will only be charged once, when a DUS decision is possible.

Additional testing due to questionable distinctness or uniformity

There are some instances where the evaluation results at the conclusion of the testing period may not be sufficient for a conclusive DUS recommendation. In these cases, the PVR Office will provide the applicant with the variety information recorded by the Office. The examiner will then determine if supplementary examination or additional testing is necessary.

If the use of additional testing is required, the PVR Office will advise the applicant of this, with the understanding that a trial fee will be charged for this testing in the usual manner. The applicant can then decide to do either of the following:

• Approve the additional testing and allow the application to continue.
• Withdraw the application.

Additional testing due to missing varieties

The PVR Office may require additional testing if some varieties are missing from the growing trial. This can occur in two ways:

1. A required variety may be absent from the growing trial because it was not identified as a similar variety during preliminary examination.

   This will generally be the case if the DUS evaluation results in greater morphological information about the candidate variety. This may prompt the examiner to identify new similar varieties using this information, and request their inclusion in an additional growing trial. The new trial will incur an additional trial fee, lengthen the testing period and prolong the time to any Rights decision.

   You can find more information about the identification of similar varieties in our technical guidance documents.

   Varieties of common knowledge: Identification and usage

2. If a growing trial is established on an applicant’s or other property, all varieties requested by the examiner must be present in that trial. It is the responsibility of the growing trial coordinator to ensure that all requested varieties are present.

   At the beginning of an evaluation, any missing varieties will be noted. If the trial coordinator has not already communicated with the examiner regarding this deficiency, the examiner may request additional testing in order to include any missing varieties. This may cause additional costs for the applicant, lengthen the testing period and prolong the time to any Rights decision.