MBIE opens consultation on Plant Variety Rights regulations and fees

Article \ 22 Jul 2021

As part of the review of the Plant Variety Rights (PVR) Act 1987, the Ministry of Business, Innovation & Employment (MBIE) has opened consultation on new regulations to support the new Act. In a separate consultation paper, MBIE are seeking input on the fee structure of the PVR system in New Zealand.

Regulations

MBIE proposes to adopt many of the regulations from the Patents Regulations 2014, for example provisions relating to publication of the journal or the conduct of hearings. In relation to compulsory licenses, MBIE proposes to adopt a process based on the opposition provisions in the Trade Marks Act 2002.

Other provisions are unique to the PVR regime, such as the time limits for providing plant material and paying examination fees, rules relating to variety denominations and the conditions relating to growing trials. MBIE have provided several options for addressing these topics.

MBIE are also seeking feedback on incorporating a list of ‘non-indigenous species of significance’. Species included on this list would be subject to the same considerations as indigenous species under the new PVR Act. The current proposed list includes:

Common Māori Name

English and Latin

Kuru

Breadfruit, Artocarpus incisa

Hue

Gourd, calabash, Lagenaria siceraria

Aute

Paper-Mulberry, Broussonetia papyrifera

Karaka/Kōpī

Corynocarpus laevigata

Paratawhiti/Paraa

Marrita fraxinea

Perei

Gastrodia Cunninghammi and Orthoceras strictuum

Kūmara

Ipomoea batatas

Taro

Colocasia esulenta

Tī pore

Pacific cabbage tree, Cordyline fruticose

Whikaho

Yam, Dioscorea species

In addition to comments on the contents of the list, MBIE are also considering delaying adding this list to the regulations until the related provisions in the PVR Act come into effect (at least 12 months after the Bill comes into force). Incorporating the list into the regulations now would provide certainty for plant breeders, while a delay would allow the Māori Plant Varieties Committee to be established and provide input into the list.

The deadline for submissions on the proposed Regulations paper is Wednesday, 25 August 2021.

Fees

The PVR Office is also using this opportunity to review the fees for PVR applications. Fees have not been adjusted since 2002 and the PVR scheme is currently operating at a deficit. The biggest contributor to this deficit is that the costs associated with examination and trials have increased significantly.

The discussion document released by MBIE does not contain proposed fees, instead it sets out options for changing the current charging model.

The fees up for review fall into four main categories, outlined in the table below.

Fee type

Activity covered

Options for change

Application fee

Covers the acceptance of the application, preliminary examination, document checks and arrangements for testing and associated admin costs. Fee depends on species.

Amend this fee to be the same fee for all plant species.

Examination fee

Covers the cost of determining whether a variety meets the criteria for a PVR grant. This is charged when another party carries out the growing trial and data collection and the fee covers the examination period. Charges are based on variety categories.

Propose to adjust the categories by grouping varieties that require similar levels of resources and time together. The proposed groups are:

  • agriculture and vegetable crops
  • fruit and nuts
  • ornamentals, trees and other plants
  • pasture plants and amenity plants
  • fungi.

Move to a hybrid fee model with a fixed examination fee based on the plant species, as well as a variable fee. The variable fee could be charged if the initial examination process determined that further specialist work was required by the PVR Office. This change would not impact applicants who have their plant varieties independently tested, they would only be charged an examination fee.

Trial fee

Covers the cost when the PVR Office undertakes

the growing trial and field data collection itself, and is charged per examination period. Charges are based on variety categories.

Annual grant fee

Annual fee charged to maintain a granted PVR.

All plant varieties currently pay the same annual grant fee, no matter how long the grant has been active.

The renewal fee would increase the longer the PVR is held. Introduce a tiered renewal fee system e.g. one renewal fee tier for years 1-5, the second tier for 6-10 years, the third tier 11-15 years, and the final tier greater than 15 years until the maximum term of the PVR.

For a more in depth discussion of the proposed fee changes and the operating costs of the current PVR scheme, or to submit on this issue click here. The deadline for submissions is also Wednesday, 25 August 2021.

Once the initial feedback has been received, a discussion document on fees will be sent out for further comment. It is anticipated that the new fee structure could come into force by July 2022.