Use of foreign test reports for DUS testing in New Zealand (2022 Act)

Introduction

Plant Variety Rights (PVR) legislation notes that protection can be applied for a variety in any plant genera, with the following exceptions:

• Variety protection under the Plant Variety Rights Act 2022 is not applicable to bacteria.
• Variety protection under the Plant Variety Rights Act 1987 is not applicable to bacteria and algae.

PVR legislation also requires that all decisions on distinctness, uniformity, and stability (DUS) are made using plant-to-plant comparisons in growing trials. The consequence of these requirements means that the PVR Office requires testing expertise and resources or access to expertise and resources for a large range of genera, which has practical limitations.

For varieties in some genera and species, the PVR Office may use overseas knowledge and expertise to make a decision on a grant of rights in New Zealand. This may be the case if, for example:

• The variety belongs to a genus or species which is new to New Zealand.
• There is very little growing, production or research experience in relation to the variety in New Zealand, and overall knowledge is low.
• There may be significant production of the variety in New Zealand, but no breeding or research activity in that genus.

Purchasing DUS test reports from other UPOV member states

New Zealand is a member of the International Union for the Protection of New Varieties of Plants (UPOV). The UPOV system provides an option for member states to utilise each other’s test reports and exchange genera expertise. In these instances, the agreed practice is for the national authority to request a test report from the corresponding country authority.

The protocol when obtaining test reports is to acquire these from the authority that first tested the variety. This is to avoid obtaining a test report of a test report. The optimal scenario would be to obtain a report from the authority which first carried out the DUS testing for that variety.

Where a test report is used for a DUS decision in New Zealand, any cost incurred by the PVR Office is included in the examination fee paid by the applicant.

Criteria for the use of overseas test report

There are no specific rules or firm guidelines that automatically dictate whether or not obtaining an overseas test report for a variety is preferable. It is not possible to publish lists of genera where the PVR Office will or will not use overseas test reports. Each application is assessed variety by variety, using a range of factors.

The following is a list of criteria that may lead to the decision to use an overseas test report for examination in New Zealand.

1. The availability of a report from the authority receiving the first or only application (in instances where there have been one or more prior overseas applications for the variety).
2. The level of genus or species knowledge, production or DUS testing experience nationally. This includes requirements for growing the variety e.g. greenhouse, shade house, open field.
3. Whether or not there is a UPOV test guideline, and considering the experience of the testing authority from which the report may be requested.
4. Whether or not there are possible similar varieties in New Zealand, and if these have been considered by the overseas testing authority.
5. The importance, with respect to a DUS decision, of any plant character which may change expression due to New Zealand's climate and environment. This may result in the test report variety description having significant difference when compared to the variety as observed in New Zealand.

Decisions based upon the overseas test report

For most varieties the test report will fully replace a growing trial in New Zealand. When the test report is received, the examination of the variety is carried out using that report.

The examiner may wish to check plant material of the variety in order to verify that the variety description is consistent with the expression of plant characters as seen in New Zealand. In some cases, a complete DUS growing trial may be required in addition to the use of the test report. This could be caused by possible deficiency with the test report identified during examination, such as new variety of common knowledge information arising after the test report is received.