Tuatara: Volume 29, Issues 1 and 2, August 1987
Plant Breeders' Rights Legislation with Special Reference to Native Plants
Plant Breeders' Rights Legislation with Special Reference to Native Plants
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
There are three major areas of misunderstanding regarding plant variety rights and native plants. These are the differences between patents and plant variety rights, the definition of variety in the PVR context and the protection of discoveries.
Patents versus PVR
Plant variety rights are often compared with patents but while they are similar in intention they are very different in detail. Patents protect products, processes and apparatus provided that they are reproducible, non-obvious, new and they work. A protectable cultivar on the other hand has no inventive or non-obvious requirement, the breeding method is seldom repeatable and the cultivar does not have to meet any usefulness requirements. Dependent inventions have restrictions under patent legislation but not under PVR. For example, if you obtain a grant of rights the protected cultivar must be made available to the public and made available to all as a parent for crossing purposes. A compulsory licence may be issued if these provisions are not complied with. If on the other hand you add a revolutionary improvement to a patented mouse trap you may be able to patent the improvement but not market it without the approval of, and probably payment to, the original patent holder.
The concept that an individual who discovers a variant of a native species while casually working through native vegetation can obtain breeders protection is unacceptable to many. The Plant Patents Act excluded plants found in an uncultivated state but patents were regularly obtained for ‘natural’ cultivars and so the Act was amended in 1954 to specifically exclude “finds”. In Australia the concern was such that the Plant Variety Rights Bill 1982 stated “a person shall not be taken to have originated a plant variety by reason that he discovered the existence of page 10 the plants of that variety, whether as a result of a deliberate search or otherwise.” (The Bill was not passed due to a change of Government).
All other PVR legislation, including the N.Z. Act and the new Bill, offer protection for new cultivars whether bred or discovered. In fact membership of UPOV is conditional on, amongst other things, legislation in member countries affording protection regardless of origin. There are at least three arguments to support this approach. First plant breeding is based on discovered variation. Breeders, make little distinction of worth based on whether the variation arose from a man made cross, from a variant found in their own nursery or a variant found on the side of a road (or in the bush). Many very useful cultivars have been developed from discoveries. Secondly the discovery of variation is only a small part of cultivar development. Evaluation of the merit of selections and bulking up of the superior few is the most time consuming and expensive stage of cultivar development. Thirdly, and less significantly, if discoveries were excluded from protection it would be very difficult or impossible for PVR officials to correctly make the distinction between chance discoveries and those resulting from a deliberate search.
The use of the word variety has become misused in nearly all plant breeders legislation. Clearly the legislation is designed to protect cultivars, meaning cultivated varieteis. Varieties in the botanical sense are not covered nor meant to be covered by plant breeders legislation. The 1973 Act defines plant variety as “any cultivar, clone, line, stock or hybrid which is capable of cultivation.” However the 1985 Bill is now more precise and defines variety “as a cultivar, or cultivated variety of a plant … and includes any clone, hybrid, stock or line of such a plant; but does not include a botanical variety of such a plant.”
The international definition of a cultivar is “an assemblage of cultivated plants which is clearly distinguished by any characters and which, when reproduced, retains its distinguishing characters,” (Brickell, 1980). The most helpful delineation is probably that a cultivar will comprise only a part of the species, botanical variety or other botanical taxon under which it is classified.
As a safeguard the Registrar refers grant applications for cultivars of native species to a recognised expert. In addition there are provisions in the Bill for any person to object to the making of a grant either before or after the grant is made.
A good illustration of the purpose and coverage of plant breeders legislation in New Zealand is the case of Dodonaea or akeake. also called hop bush. The normal native form of Dodonaea has green leaves and is mainly dioecious. The native form is not coverable by PVR as it is not a cultivar, and it is not new. A single purplish-red tree was found on the banks of the Wairau River in Marlborough. (It has since been washed away). Seed from this single tree has been used to produce the commonly grown mainly polygamous form (bearing unisexual and bisexual flowers on the same plant) known as purpurea (Rivers, 1971). Purpurea is not eligible for PVR protection because it is neither new or uniform. Purpurea has been available since the discovery in 1890. Purpurea is normally propagated from selfed seed and gives progeny ranging in colour from bronze, through red and purple to dark purple.page 11
Moonbeam, on the other hand, is a variegated, mainly dioecious form of Dodonea which was derived from a mutation of the green form. The variant was found in the breeders nursery, and was granted PVR protection because it was new, it was distinct from forms of common knowledge, and it was uniform and stable when propagated vegetatively.
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.
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.
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.
Anon. 1986. N.Z. Plant Varieties Journal 26; 9pp.
Brickell. C.D. 1980.International Code of Nomenclature for Cultivated Plants. Bohn Schcltema & Holkema. The Hague 33 pp.
Rivers. E.M. 1971 Variation in dioecism in cultivated Dodonaea viscosa. N.Z. Journal of Botany 9: 371-402.
|1973||Plant Varieties Act — Labour (Moyle)|
|1974||Plant Varieties Act Commencement Order 1974|
|1975||Plant Varieties Regulations 1975|
|1975||Plant Varieties Regulations 1975 Amendment No. 1|
|1976||Plant Varieties Act Extension Order 1976|
|1976||Plant Varieties Act Extension Order (No 2) 1976|
|1977||Plant Varieties Act Extension Order (No 2) 1976 (Amendment No. 1)|
|1979||Plant Varieties Amendment Act 1979|
|1979||Plant Varieties Act Extension Order 1979|
|1980||Plant Varieties Act Extension Order 1980|
|1980||Plant Varieties Regulations 1975. Amendment No. 2|
|1981||Plant Varieties Act Extension Order 1981|
|1983||Plant Varieties Bill (1983) introduced — National (Maclntyre)|
|1984||Plant Varieties Bill (1984) introduced — National (McLean)|
|1985||Plant Varieties Regulations 1975 Amendment No. 3|
|1985||Plant Varieties Rights Bill introduced — Labour (Moyle)|
|1976 November||First grant of Rights issued a rose|
|1980 May||First N.Z. Plant Varieties Gazette published|
|1980 October||One hundredth grant issued|
|1981 November||N.Z. joins UPOV|
|1984 January||Two hundredth grant issued|
|1984 January||Application for compulsory license made|
|1984 March||Registrar issues first compulsory license|
|1984 March||Plant Varieties Appeal Authority upholds Registrars decision|
|1986 May||Three hundredth grant issued|
|Common name||Cultivar name||Application||Date of Grant of rights||Breeder|
|Rata||Carousel||1-12-83||28-6-85||Duncan & Davies|
|Ngaio||Royal Purple||26-6-86||D.J. Liddle|
|Coprosma||Bronze Prostrate||1-12-86||D.J. Liddle|