Cultivating innovation: an in-depth look at New Zealand's Plant Variety Rights landscape under the PVR Act 2022

• Published date: 19 July 2023
• Subject Matter: Intellectual Property, Food, Drugs, Healthcare, Life Sciences, Biotechnology & Nanotechnology
• Law Firm: Spruson & Ferguson
• Author: Mr Ean Blackwell and Jay Rasmussen

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.

International Considerations

As many readers will know, the New Act replaced the outdated Plant Variety Rights Act 1987 (Old Act) and finally places New Zealand in compliance with both the Comprehensive and Progressive Agreement for Trans-Pacific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...