Plant varieties rights dispute over feijoas

Press, 22 June 1984, Page 22

Plant varieties rights dispute over feijoas

A dispute over the commercialisation of two Gov-ernment-bred feijoa varieties has resulted in the parties concerning taking advantage of hitherto unused provisions in the Plant Varieties Act, 1973.

The Act, administered by the Ministry of Agriculture and Fisheries through the Plant Varieties Office at Lincoln, provides for the granting of patent-like rights, known as Plant Selectors’ Rights (P.S.R.) to the breeders of new plant Varieties.

P.S.R. give developers of new plant varieties an opportunity to recoup their often high breeding costs. The Act has encourged private investment in plant breeding in New Zealand and has provided an incentive for overseas breeders to release new improved varieties here.

In March 1983, the D.S.I.R. was granted P.S.R. for two new feijoa varieties. While such grants of the P.S.R. give the holder exclusive rights over selling reproductive material and producing it for sale, the Act also obliges the holder to make available to the public a reasonable quantity of plants of reasonable quality and at a reasonable price, according to the registrar in the Plant Varieties Office, Mr Bill Whitmore.

If another person considers the holder of P.S.R. is not meeting these obligations he can apply to the

registrar for a compulsory licence. The compulsory licence if issued would enable this other person to also sell or reproduce for sale the protected variety. In January this year the large nursery company, Duncan and Davies, Ltd, applied for compulsory licences for the two D.S.I.R. feijoa varieties on the grounds that the D.S.I.R. was not making the varieties available to the public. The company pointed out that while plants were available to commercial growers they where not being made available to home gardeners. Mr Whitmore agreed with Duncan and Davies’ claim and decided to issue the compulsory licence. Following this however, under yet another provision of the Plant Varieties act, the D.S.I.R. has appealed against the registrar’s decision and that is where the

matter now stands, said Mr Whitmore. Under the Act a threeman appeal authority must now be appointed by the Minister of Justice and the Minister of Agriculture to hear the appeal. In the meantime the registrar’s decision to issue the compulsory licences is suspended. Mr Whitmore commented that the applications for compulsory licences as well as the subsequent appeal are the first under the Plant Varieties Act and that, while it was unfortunate that the dispute had arisen, there was interest and value in the fact that the relevant provisions were now being tested.

The present dispute had illustrated that the rights given breeders were countered by powerful rights given to consumers, which was a fact the critics tended to overlook, he said.