Abstract

The aim of plant breeders' rights legislation is to encourage investment in plant breeding by facilitating the control of, and the collection of royalties from, new cultivars.

Plant variety rights legislation was passed in New Zealand in 1973 and has been progressively extended and amended until today it is one of the most comprehensive in the world.

Controversy surrounds plant breeders rights legislation in general and especially the granting of rights to discovered variants of native species. The intended extent of the legislation and the protection of cultivars of native species to date in New Zealand is summarised.

It is concluded that plant variety rights is not a threat to native species and has resulted in the availability of a number of useful new ornamentals.

Key words: New Zealand, patents, plant breeding, plant varieties.

Role of Plant Variety Rights (PVR)

The objective of the plant variety rights legislation is simply to encourage investment in the development of new and improved plant cultivars.

Luther Burbank, the American breeder of 800 new cultivars, including the Russet Burbank potato, wrote “A man can patent a mousetrap or copyright a nasty song but if he gives to the world a new fruit that will add millions to the value of the Earth's annual harvest he will be fortunate if he is rewarded by so much as having his name connected with the result.” Burbank died in 1926 but, with the help of his widow, the Plant Patent Act (PPA) was passed in 1930. The Act, the first of its type in the world, covered only plants produced asexually. Special plant breeders rights legislation, distinct from patent legislation, covering sexually and asexually propagated plants, was passed in the Netherlands in 1941. Similar legislation followed in other countries until today the only major developed western countries without breeders protection are Australia and Canada.

Legislation to encourage plant breeding variously called plant breeders rights, plant selectors rights, or plant variety rights, allows the breeder or his agent the exclusive right to market a protected cultivar and collect a royalty on it for a defined period, usually 15 to 20 years. To be eligible for a grant of rights a cultivar must be new, distinct, uniform, stable and have an approved name. The obligations of the owner of the grant are to ensure that a reasonable quantity of the reproductive material is available to the public and it is of a reasonable quality and at a reasonable price.

PVR Legislation in NZ

In 1973 a Labour Government passed the Plant Varieties Act (Table 1). In 1975 the appropriate regulations were passed which included a phasing in of the plant species covered under the legislation, initially roses, barley and perennial ryegrass, later annual ryegrass, potatoes and lotus. The first grant was made for a rose in 1976 (Table 2). In August 1980 the legislation was further extended to also include brassicas of agricultural importance, linseed, oats, Phacelia, wheat, all fruit species, all nut species; the herbage species fescue, Phalaris (canary grass) and Yorkshire fog, plus all ornamental species. In 1981 the Act was extended to page 9 cover all plant species excluding fungi, algae and bacteria. New Zealand was the first country to have complete coverage of higher plants.

In 1981 also New Zealand became a member of the International Union for the Protection of New Varieties of Plants (UPOV). UPOV was founded in 1961 and offers reciprocity to member countries. Legislation in member countries must include certain features, such as exclusion of species covered by patent legislation, grants not being restricted by the merit of the cultivar, and priority provisions for cultivars — protected in member states.

In 1983 a revised Bill was introduced to the House but, due to a change of government was not passed. In 1985 the Plant Variety Rights Bill was presented. The 1985 Bill consolidates the 1973 Act with all its extensions and amendments and also makes some changes and additions: The Plant Varieties Appeal Authority is abolished; protection is automatic from the time of the acceptance of an application until a grant is issued; breeders of protected cultivars can control vegetative propagation by commercial producers and clauses required under the UPOV convention were added.

Native Plants and Plant Variety Rights — Misunderstood Areas

Development of Protected Native Cultivars

A total of 316 grants of breeders rights up to June 1986 (Anon, 1986) have been made since 1975. This includes 5 cultivars of native species. Applications have been made for a further 3 (Table 3).

In addition to the variegated akeake, cultivars of native species with PVR protection include:

Earlygold, a dwarf, early flowering kowhai (Sophora microphylla) derived from a seedling selected from plants grown from seed collected on Stephen's Island. Purple Fire (previously named Paula) is a purple leafed form derived from a cross between Coprosma repens and C. acerosa.

Sunrise, a golden foliage form of kawaka (Libocedrus plumosa) derived from seed collected from a forest tree displaying golden foliage.

Buttermilk, a creamy leaf coloured kahikatea (Dacrycarpus dacrydioides) was selected from 5000 seedlings.

Carousel, a variegated form of rata vine (Metrosideros carminea)

Royal Purple, an upright, purple leafed ngaio (Myporum laetum).

Bronze Prostrate, a coprosma (Coprosma sp.) variant.

The latter four were all derived from seedlings discovered in the breeders' own nurseries.

Conclusions

PVR legislation was introduced in 1973 and has since been extensively amended and extended until today N.Z. has one of the most comprehensive schemes in the world.

Plant breeders rights legislation does not constitute a threat to the indigenous New Zealand flora. Coverage is confined to cultivated varieties and as a safeguard. all applications for PVR protection of cultivars of native species are referred by the Registrar to an expert to judge if the application is for a new cultivar.

Grants and application for grants of N.Z. native cultivars all constitute useful additions to available ornamentals, mainly with changes in leaf colour but also form and flowering time. Many of these cultivars would not have been developed in the absence of legislative protection.

Acknowledgements

The advice and assistance of the following is gratefully acknowledged: Mr F.W. Whitmore, Registrar of Plant Varieties; Mr M.F. Genty, Mrs S.T. King of Kahurangi Nurseries; Mr J.P. Rumbal of Duncan & Davies; Mr D.J. Liddle. Mr W.R. Sykes, Botany Division. DSIR.