Varieties of common knowledge: Identification and usage

The Plant Variety Rights Act requires that for a grant of Rights, a variety must be determined sufficiently distinct from all other varieties whose existence was a matter of common knowledge at the time the application was made.

Varieties of common knowledge

There is no comprehensive definition of a variety of common knowledge, but an important first criterion is whether or not the variety is actually a variety as set out in the UPOV Convention. A variety of common knowledge is not required to meet the same standards required for protected varieties and could include unnamed varieties, ecotypes and landraces.

In addition, the following aspects can be considered in order to establish common knowledge:

• commercialisation of plant material of the variety or publishing a detailed variety description. Commercialisation covers propagation, cultivation and marketing in the public domain.
• the filing of an application for a grant of a breeders right or plant patent, providing that the application leads to a grant
• inclusion of the variety in an official or voluntary register, list or other publication in the public domain
• existence of living plant material in publically accessible collections

Common knowledge is not restricted by national or geographical borders.

Identifying similar varieties

The identification of similar varieties is carried out in the first instance by the breeder during the course of completing the technical questionnaire. It is recommended that as much technical information is provided by the breeder at application as available. The technical questionnaire is designed for the breeder to clearly state why the variety is different from all others and identifies the main distinguishing characters. A list of varieties of common knowledge for a given species or a particular variety can be large and it is unlikely that the breeder will provide a comprehensive list on a worldwide basis.

The examiner and expert advisors initially use breeder information to carry out the preliminary examination, including the identification of one of more varieties that are too similar to be excluded using documented means such as variety description, photograph or literature. Any variety that cannot be excluded as clearly distinct at this stage must be included in the growing trial for systematic comparison with the candidate variety.

The growing trial

To determine whether or not a candidate variety is distinguishable from one or more similar varieties of common knowledge, inclusion in a growing trial is necessary. The purpose of such a trial is to allow systematic comparison of the candidate variety with one of more similar varieties, with the objective of distinguishing the candidate variety from all other varieties present. The trial is also used to draft the variety description for the candidate variety and document the morphological or physiological make up for that variety. In addition the trial is used to determine the uniformity and stability of the candidate variety.

A growing trial includes varieties which have similarity to the candidate and varieties that may appear rather different from the candidate variety. Such varieties are considered reference or example varieties, which are not utilised for systematic comparison to determine distinctness, but present in the growing trial to assist the drafting of the morphological description of the variety. The variety description is based on comparison with and reference to specific varieties exhibiting representative or typical expression for a morphological character for that genus or species. In some instances a variety can be a similar variety and also a reference variety.

Sourcing varieties for the growing trial

The Plant Variety Rights Office will specify a certain variety or varieties to be grown alongside the candidate variety. The supply of plants of the additional varieties is the responsibility of the PVR applicant, irrespective of where the trial is located. In some cases the necessary varieties are already present on the trial site. The applicant is expected to make reasonable effort to source these varieties and maintain them for the life of the growing trial. It is not acceptable to substitute a requested variety for another without prior consultation with PVRO. If a variety has not been included, a detailed explanation must be provided to PVRO regarding the absence early on in the process of establishing the growing trial.

Missing varieties from a growing trial

Taking into account that a variety of common knowledge may only exist as living plant material outside of New Zealand or is an older variety that may no longer be readily available in commercial production, such a variety may be considered as unobtainable. Living plant material of such varieties either cannot be sourced at all or obtaining plants through specific propagation or importation would require considerable time and expense. The PVR Office may be able to be satisfied that the missing variety is different using supplementary procedures such as expert comment, a variety description or information from an overseas authority. In cases where the PVR Office cannot be satisfied that the missing variety can be satisfactorily excluded from the growing trail, an overseas growing trial or specific sourcing of that variety, even if it means prolonging testing, will be necessary.