Plant Variety Rights Act 1987 (reprint as at 03 September 2007), New Zealand

1 Short Title and commencement

(1)

This Act may be cited as the Plant Variety Rights Act 1987.

(2)

This Act shall come into force on a day to be fixed by the GovernorGeneral by Order in Council.

2 Interpretation

In this Act, unless the context otherwise requires,—

Applicant,inrelationtoanyapplication,meansthepersonby whom or on whose behalf that application is made Application , except in section 12 of this Act, means an

application for a grant Assistant Commissioner means an Assistant Commissioner

ofPlantVarietyRightsappointedundersection 30(1)(b) ofthis Act: Commissioner means the Commissioner of Plant Variety

Rights appointed in accordance with section 30(1)(a) of this Act; and includes an Assistant Commissioner Conventionparty means an entity that for the time being—

(a)

Is declared by an order under section 38A to be a convention party for the purposes of this Act; or

(b)

Is a contracting party to the body that, on the commencementofthe PlantVarietyRightsAmendment Act 1999, was known as the International Union for the Protection of New Varieties of Plants (constituted under the international agreement then called the International Convention for the Protection of New Varieties of Plants):

Convention party: this definition was inserted, as from 14 October 1999, by section 2(2) Plant Variety Rights Amendment Act 1999 (1999 No 122).

Denomination, in relation to any protected variety, or any variety that was a protected variety until the grant made in respect of it expired, means the distinguishing name or identification approved for that variety by the Commissioner under section 10(2)(a) of this Act

DirectorGeneral[Repealed]

DirectorGeneral: this definition was repealed, as from 1 August 1990, by section 2(1) Plant Variety Rights Amendment Act 1990 (1990 No 82).

[Repealed]

Grant means a grant of plant variety rights under this Act Grantee means the holder of a grant; and, in relation to a protectedvariety,meanstheholderofagrantinrespectofthat variety

International agreement[Repealed]

InternationalAgreement: thisdefinitionwasrepealed,asfrom14October1999, by section 2(2) PlantVariety Rights Amendment Act1999 (1999 No 122).

[Repealed]

JournalmeansthePlantVarietyRightsJournalrequiredtobe

published by section 34(1) of this Act Minister means the Minister of the Crown for the time being responsible for the administration of this Act Minister: this definition was substituted, as from 1 August 1990, by section

2(1) Plant Variety Rights Amendment Act 1990 (1990 No 82).

Ministry means the department of State for the time being responsible for the administration of this Act Ministry: this definition was substituted, as from 1 August 1990, by section

2(1) Plant Variety Rights Amendment Act 1990 (1990 No 82).

OfficemeansthePlantVarietyRightsOfficeestablishedunder

section 28(1) of this Act Owner,inrelationtoanyvariety,meansapersonwhobredor discoveredthatvariety,andincludesasuccessorofthatperson

Plant—

(a)

Includes a fungus; but

(b)

Does not include an alga or a bacterium:

Plant: thisdefinitionwassubstituted,asfrom1July1994,bysection2(1)Plant Variety Rights Amendment Act 1994 (1994 No 52).

Protectedvariety meansavarietyinrespectofwhichagrant

is in force Publication means public notification; and includes publication in the Journal

Reproductive material, inrelationtoanyvariety, meansany portion of a plant of that variety by means of which plants of that variety may be reproduced or propagated; and includes spores, seeds, and whole plants Sale includes any disposition for valuable consideration and any offer for sale; and sell and sold have corresponding meanings

Secretary means the chief executive of the Ministry Secretary: this definition was inserted, as from 1 August 1990, by section 2(1) Plant Variety Rights Amendment Act 1990 (1990 No 82).

UPOV country[Repealed]

UPOV country: this definition was repealed, as from 14 October 1999, by section 2(2) Plant Variety Rights Amendment Act 1999 (1999 No 122).

[Repealed]

Variety means a cultivar, or cultivated variety,of a plant, and includes any clone, hybrid, stock, or line, of a plant; but does not include a botanical variety of a plant. Variety: this definition was substituted, as from 1 July 1994, by section 2(2)

Plant Variety Rights Amendment Act 1994 (1994 No 52). Compare: 1973 No 37 s 2

3 Application

[Repealed]

Section3wasrepealed,asfrom1July1994,bysection2(3)PlantVarietyRights Amendment Act 1994 (1994 No 52).

4 Act to bind the Crown

This Act shall bind the Crown. Compare: 1973 No 37 s 3

6 Objections before grant

(1)

Any person who considers that the Commissioner should not approveaproposeddenominationnotifiedintheJournalmay, within 3 months of its notification, by notice in writing to the Commissioner, object to the approval of that name.

(2)

Any person who considers that an application has been made by or on behalf of an applicant who is not an owner of the variety concerned may, at any time before a grant is made to the applicant in respect of that variety, by notice in writing to the Commissioner, object to the making of a grant in respect of that variety to the applicant.

(3)

Any person who considers that an application has been made in respect of a variety that is not new, distinct, stable, and homogeneous (as required by section 10 of this Act) may, at any time before a grant is made in respect of that variety, by noticeinwritingtotheCommissioner,objecttothemakingof a grant in respect of that variety.

(4)

If an objection is made under this section, the Commissioner shall not make a grant in respect of the variety concerned be

foregivingtheapplicantconcernedandtheobjectorareason able opportunity to be heard. Compare: 1973 No 37 s 19

7 Withdrawal or lapse of applications

(1)

Any application may be withdrawn by the applicant at any time before a grant is made in respect of it.

(2)

The withdrawal of an application shall not affect the liability oftheapplicantforanyfeesthatmayhavebecomepayableup to the date of that withdrawal.

(3)

IfanyinformationormaterialrequiredtobegiventotheCom missioner under subsection (2) or subsection (3) of section 5 of this Act is not supplied within the prescribed period, the application concerned shall lapse upon the expiration of that period. Compare: 1973 No 37 s 13(2)

8 Inspection of applications After an application is made, the Commissioner shall hold it and any document, instrument, or photograph accompanying itandanydocumentorinstrumentsuppliedsubsequentlypur suant to subsection (2) or subsection (3) of section 5 of this Act (or a copy of that document, instrument, or photograph, certified bythe Commissioner to be a true copy) availablefor publicinspectionduringordinarybusinesshoursoftheOffice. Compare: 1973 No 37 s 16 Section8wassubstituted,asfrom2September1996,bysection3PlantVariety Rights Amendment Act 1996 (1996 No 141).

9 Provisional protection

(1)

Subject to subsection (2) of this section, on and after the day on which an application is made, the applicant shall have the samerightstotakeproceedingsunderthisActasifonthatday agranthadbeenmadetotheapplicantinrespectofthevariety concerned.

(2)

The rights conferred by subsection (1) of this section shall be deemed never to have been conferred if—

(a)

The application concerned is withdrawn or lapses; or

(b)

The Commissioner declines to make a grant in respect

of that application. Compare: 1973 No 37 s 18

10 Making of grants

(1)

The Commissioner shall—

(a)

Subject to sections 11 and 31(2) of this Act, make a grant in respect of every application that is eligible for the making of a grant; and

(b)

Decline to make a grant in respect of every application that is not eligible for the making of a grant.

(2)

An application shall be eligible for the making of a grant if, and only if, the applicant has given the Commissioner all reproductive material of the variety concerned requested by the Commissioner, and the Commissioner—

(a)

Hasapprovedforthatvarietyadenominationproposed by the applicant; and

(b)

Issatisfiedthatthatapplicantisanownerofthatvariety; and

(c)

Has received the prescribed fee; and

(d)

Is satisfied that that variety is new, distinct, homogeneous, and stable.

(3)

TheCommissionershallapproveaproposeddenominationfor avarietyif,andonlyif,intheopinionoftheCommissioner,it complies with the prescribed requirements.

(4)

For the purposes of subsection (2)(d) of this section,—

(a)

Subject to subsection (6) of this section, a variety is new if there has been no sale of that variety with the agreement of any relevant owner of that variety—

(i)

InNewZealand,formorethan12monthsbefore thedateonwhichthatapplicationwasmade;and

(ii)

Overseas, for more than 6 years before that date in the case of a woody plant, or for more than 4 years before that date in every other case:

(b)

A variety is distinct if it is distinguishable by one or more characteristics from any other variety whose existence was a matter of common knowledge when the application concerned was made.

(c)

A variety is stable if, in its essential characteristics, it remains true to its description—

(i)

Where the applicant concerned has described particular cycles of reproduction or multiplication for that variety, at the end of each such cycle; and

(ii)

Ineveryothercase,afterrepeatedpropagationor reproduction.

(5)

In determining, for the purposes of subsection (2)(d) of this section, whether or not the Commissioner is satisfied that a variety is homogeneous, the Commissioner shall have regard to the particular features of its sexual reproduction or vegetative propagation (whichever is applicable to it).

(6)

Where, to increase the stock of a variety or for evaluation trialsortestsofavariety,itsownermakesarrangementsunder which—

(a)

Reproductive material of that variety is to be sold to or used by some other person; and

(b)

Any unused portion of that reproductive material, and all the material of any sort produced from that reproductive material, is—

(i)

Tobesoldtothatowner,bythatotherperson;or

(ii)

Otherwise to become the property of that

owner,— forthepurposesofsubsection (4)(a) ofthissection,noaccount shall be taken of any sale under that arrangement of—

(c)

Reproductive material of that variety by that owner to that other person; or

(d)

Materialofanysortofthatvarietybythatotherperson to that owner.

(7) Forthepurposesofsubsection (2)(d) ofthissection,avariety doesnotceasetobenewbyvirtueonlyofthesaleatanytime of—

(a)

Material that is not reproductive material; or

(b)

Reproductive material disposed of for purposes other

than reproduction,— that, having been produced during the breeding, increase of stock, tests, or trials, of that variety, is not (or no longer) required for any of those activities.

(8) Forthepurposesofsubsection (4)(b) ofthissection,thecharacteristicsbywhichavarietymaybedistinguishedfromothers may be morphological, physiological, or of any other kind or description,solongasthosecharacteristicsarecapableofprecise description and recognition. Compare: 1973 No 37 s 15(1)

11 Varieties bred or discovered by 2 or more persons independently

Subject to section 12 of this Act, where—

(a)

Beforeagrantismadeinrespectofavariety,2ormore applications in respect of that variety have been made; and

(b)

The Commissioner is satisfied that the 2 or more applicants concerned are persons who, or successors of persons who, bred or discovered that variety independently; and

(c)

TheCommissionerissatisfiedthat,butforthissection, each of those 2 or more applicants is or would be entitled to a grant in respect of that variety,—

the Commissioner shall makeagrantto thatone ofthose 2 or more applicants whose application in respect of that variety was made first. Compare: 1973 No 37 s 13A(1), (2)

12 Priorities resulting from earlier overseas applications

1Where—

(a) Any person makes an application for a grant in NewZealandinrespectofavarietyinrespectof which that person has earlier,—

(i)

After a convention party that is a state, part of a state, or a territory for whose international relations a state is responsible most recently became a convention party, made in and under the law of that conventionpartyanequivalentapplication that has been accepted; or

(ii)

Afteraconventionpartythatisnotastate, part of a state, or a territory for whose

11

international relations a state is responsible most recently became a convention party,madeundertherulesofthatconvention party an equivalent application that has been accepted; and

(b)

That application for a grant in New Zealand is madenotmorethan12monthsafterthatequivalentapplication(or,ifmorethan1equivalentapplicationhasbeenmade,whetherinorunderthe rulesofseveralconventionparties,theearliestof them) was made; and

(c)

A claim for priority in relation to that equivalent application accompanies the application for a grant in New Zealand; and

(d)

Within 3 months of the making of that application for a grant in New Zealand, a copy of any documents constituting that equivalent application,certifiedascorrectbytheauthoritytowhich itwasmade,issubmittedtotheCommissioner,—

sections 10(4)(b) and 11 of this Act shall apply to that applicationforagrantinNewZealandasif ithadbeen made when that equivalent application was accepted.

Compare: 1973 No 37 s 13A

Subsection (1)(a)and(b) wassubstituted,as from14October1999, by section 2(3) Plant Variety Rights Amendment Act 1999 (1999 No 122).

13 Cancellation of grants because of earlier overseas applications Where—

(a)

After a grant is made to any person in respect of a variety, another person makes an application in respect of that variety; and

(b)

TheCommissionerissatisfiedthat,ifthatgranthadnot already been made, that other person would, by virtue ofsection 12 ofthisAct,beentitledtoagrantinrespect of that application,—

theCommissionershallcancelthatgrant,andshallmakeanew granttothepersonwhowouldbeentitledtoitifthecancelled grant had never been made. Compare: 1973 No 37 s 13A(8)

14 Date and term of grants

(1)

The Commissioner shall seal every grant with the seal of the Office, and endorse it with the date of its making.

(2)

Except as otherwise provided in this Act, every grant shall be in force for a term (commencing on the day it is made)—

(a)

Of23years,oranylongerperiodspecifiedinthatbehalf by the GovernorGeneral by Order in Council (made before,on,orafterthedaythatgrantismade,butbefore that grant expires), in the case of a woody plant or its rootstock; and

(b)

Of 20 years in every other case;— and, unless sooner cancelled, shall then expire.

(3)

The Commissioner shall keep a register, and record in it the date and other prescribed particulars (if any) of every grant. Compare: 1973 No 37 s 20

15 Objections after grant

(1)

Any person who considers that a grant has been made in respectofavarietythatisnotnew,distinct,stable,andhomoge neous (as requiredbysection10of thisAct)mayat anytime, by notice in writing to the Commissioner, object to the continuation in force of that grant.

(2)

Any person who considers that a grant was made to a person whowasnotanownerofthatvarietymay,bynoticeinwriting totheCommissioner,objecttothecontinuationinforceofthat grant.

(3)

An objection under subsection (2) of this section may be ac companied by an application in respect of the variety concerned.

16 Cancellation of grants

(1)

The Commissioner may cancel a grant before the end of its term if so requested in writing by the grantee.

(2)

Subject to subsection (3) of this section, the Commissioner shall cancel a grant at any time during its term if satisfied—

(a)

That any information supplied in the application concerned or in relation to that application was incorrect and that if the correct information had been known beforethatgrantwasmade,theCommissionerwouldhave declined to make that grant; or

(b)

Thatthevarietyconcernedwasnot,atthetimeoftheapplication concerned, new and distinct within the mean ing of section 10 of this Act; or

(c)

That that variety is not stable and homogeneous within the meaning of section 10 of this Act; or

(d)

That the grantee was not, at the time that grant was made, an owner of that variety; or

(e)

Thatthegranteeofthatvariety,afterbeingrequestedby theCommissionertoprovidetheCommissioner(within aperiodspecifiedbytheCommissioner)withreproductive material capable of producing that variety with its characteristics as described when the grant was made, has failed to do so; or

(f)

That that grantee, after being requested by the Commissioner to allow the Commissioner (within a period specifiedbytheCommissioner)toinspectthemeasures taken for the maintenance of that variety, or to provide documentsorinformationinrelationtothatvariety,has failed to do so; or

(g)

Thatanyannualgrantfeeinrelationtothegranthasnot been paid within the prescribed period; or

(h)

(3)

Beforecancellingagrantundersubsection (2) ofthissection, the Commissioner shall give the grantee written notice of intentiontodosoand,unlessthatgranteeshowssufficientcause within 28 days of the date of the notice why that grant should not be cancelled, shall cancel that grant on the expiration of that period.

(4)

Where—

(a)

TheCommissionerhascancelledagrantundersubsec tion (2)(d) of this section; and

(b)

Any application (other than the application in respect ofwhichthatgrantwasmade)hasatanytime(whether before or after the making of that grant) been made in respect of the variety concerned,—

theCommissionershalldealwithallapplicationsinrespectof that variety as if that grant had never been made. Compare: 1973 No 37 ss 13A(8), 20, 24

Subsection (2)(h) was repealed, as from 2 September 1996, by section 4 Plant Variety Rights Amendment Act 1996 (1996 No 141).

17 Rights of grantees

(1)

Subject to section 19 of this Act, a grantee shall have the ex clusive right—

(a)

To produce for sale, and to sell, reproductive material of the variety concerned:

(b)

If that variety is a plant of a type specified by the GovernorGeneral by Order in Council for the purposes of thisparagraph,topropagatethatvarietyforthepurposes of thecommercial production of fruit, flowers, or other products, of that variety:

(c)

Subject to any terms and conditions that grantee specifies, to authorise any other person or persons to do any of the things described in paragraph (a) or paragraph

(b) of this subsection.

(2)

Notwithstanding subsection (1) of this section the Minister may, by notice in the Journal, and after ensuring that the grantee under the grant concerned will be adequately compensated, impose such restrictions on the exercise of the rights of that grantee in respect of any specified variety as the Minister thinks necessary in the public interest during a state of national emergency declared under the Civil Defence Emergency Management Act 2002.

(3)

A grant may be assigned, mortgaged, or otherwise disposed of; and may devolve by operation of law.

(4)

The rights of a grantee under a grant are proprietary rights, and their infringement shall be actionable accordingly; and in awarding damages (including any exemplary damages) or granting any other relief, a Court shall take into consideration—

(a)

Anylosssufferedorlikelytobesufferedbythatgrantee as a result of that infringement; and

(b)

Anyprofitsorotherbenefitsderivedbyanyotherperson from that infringement; and

(c)

The flagrancy of that infringement.

(5)

Where there is imported into New Zealand any reproductive material of a protected variety, any propagation, sale, or use, of that material—

(a)

As reproductive material; and

(b)

Without the authority of the grantee concerned,— constitutes an infringement of the rights of that grantee under this section.

(6)

The importation into New Zealand,—

(a)

Fromacountrythatisnotaconventionpartyofproduce of a protected variety; or

(b)

Fromaconventionpartyofproduceofaprotectedvariety in respect of which, under the law of that country, it is not possible to make the equivalent of a grant,—

without the consent of the grantee is an infringement of the grantee’s rights under this section.

(7)

The sale under the denomination of a protected variety of reproductive material of some other variety constitutes an infringement of the rights under this section of the grantee of that protected variety, unless the groups of plants to which those varieties belong are internationally recognised as being distinct for the purposes of denomination.

(8)

Where, in any proceedings for the infringement of the rights underthissectionofagrantee,itisprovedoradmittedthatan infringementwascommittedbutprovedbythedefendantthat, at the time of that infringement, the defendant was not aware and had no reasonable grounds for supposing that it was an infringement, the plaintiff shall not be entitled under this sectiontoanydamagesagainstthedefendantinrespectofthatinfringement,butshallbeentitledinsteadtoanaccountofprofits in respect of that infringement.

(9)

Nothing in subsection (8) of this section affects any entitle ment of a grantee to any relief in respect of the infringement of that grantee’srights under this section otherthan damages. Compare: 1973 No 37 s 22