Public Act 1987 No 5 Date of assent 21 February 1987
Contents
Page Title 2 1 Short Title and commencement 3 2 Interpretation 3 3 Application [Repealed] 5 4 Act to bind the Crown 5
Part 1 Grants of plant variety rights
5 Applications 5 6 Objections before grant 7 7 Withdrawal or lapse of applications 8 8 Inspection of applications 8 9 Provisional protection 8 10 Making of grants 9 11 Varieties bred or discovered by 2 or more persons 11
independently 12 Priorities resulting from earlier overseas applications 11 13 Cancellation of grants because of earlier overseas 12
applications 14 Date and term of grants 13 15 Objections after grant 13 16 Cancellation of grants 13 17 Rights of grantees 15 18 Exceptions to grantees’ rights 17 19 Licences 17 20 Notice of protection 17 21 Compulsory licences and sales 18
Note This Act is administered by the Ministry of Economic Development.
1
23 Rights of appeal 20 24 Appeals to be made to District Court 21 25 Assessors 21 26 Procedure 22 27 Suspension of decision while appeal pending 23
Part 3 Plant Variety Rights Office
28 Plant Variety Rights Office 23 29 Seal of Office 23 30 Commissioner, Assistant Commissioners, and officers 24 31 Officersandemployeesnottoacquireinterestsingrants 24 32 Advisory and technical committees, and technical 25
advisors 33 Delegations 26 34 Plant Variety Rights Journal 27
Part 4 Miscellaneous provisions
35 Service of notices, etc 27 36 Fees and refunds 27 37 Offences and penalties 28 38 Regulations 29 38A Orders in Council as to convention parties 30 39 Transitional provisions 30 40 Consequential amendment [Repealed] 31 41 Repealed and revocations [Repealed] 31
Schedule 31 Plants to which this Act applies
BEITENACTEDbytheParliamentofNewZealandasfollows:
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—
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—
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
[Repealed]
Section3wasrepealed,asfrom1July1994,bysection2(3)PlantVarietyRights Amendment Act 1994 (1994 No 52).
This Act shall bind the Crown. Compare: 1973 No 37 s 3
(7) The Commissioner shall notify in the Journal every proposed denomination for a varietygiven to the Commissionerbyany applicant that, in the opinion of the Commissioner, complies with the prescribed requirements. Compare: 1973 No 37 ss 14, 15(4), 16 Subsection(1)wassubstituted,asfrom2September1996,bysection2(1)Plant Variety Rights Amendment Act 1996 (1996 No 141).
Subsection (2)(a) was amended, as from 2 September 1996, by section 2(2) Plant Variety Rights Amendment Act 1996 (1996 No 141) by substituting the words“If required by the Commissioner, and in”for the word “In”.
foregivingtheapplicantconcernedandtheobjectorareason able opportunity to be heard. Compare: 1973 No 37 s 19
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
of that application. Compare: 1973 No 37 s 18
10 Making of grants
owner,— forthepurposesofsubsection (4)(a) ofthissection,noaccount shall be taken of any sale under that arrangement of—
(7) Forthepurposesofsubsection (2)(d) ofthissection,avariety doesnotceasetobenewbyvirtueonlyofthesaleatanytime of—
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—
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,—
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international relations a state is responsible most recently became a convention party,madeundertherulesofthatconvention party an equivalent application that has been accepted; and
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—
theCommissionershallcancelthatgrant,andshallmakeanew granttothepersonwhowouldbeentitledtoitifthecancelled grant had never been made. Compare: 1973 No 37 s 13A(8)
14 Date and term of grants
15 Objections after grant
16 Cancellation of grants
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
without the consent of the grantee is an infringement of the grantee’s rights under this section.
Subsection (2) was amended, as from 1 December 2002, by section 117 Civil Defence Emergency Management Act 2002 (2002 No 33) by substituting the words“a state of national emergency declared under the Civil Defence Emergency Management Act 2002”for the words “a national emergency”See sec tions 118 to 121 of that Act as to the transitional provisions.
Subsection (6)(a) and (b) was amended, as from 14 October 1999, by section 2(4) Plant Variety Rights Amendment Act 1999 (1999 No 122) by substituting the words “convention party”for the words “UPOV country”.
18 Exceptions to grantees’ rights
Notwithstanding section 17 of this Act, any person may—
Compare: 1973 No 37 s 22(3)
19 Licences The holder of a licence from a grantee shall have the same rights as that grantee to take proceedings in respect of any infringement of the rights of that grantee in respect of the varietyconcernedaffectingtherightsgivenunderthatlicenceand committed after it was granted. Compare: 1973 No 37 s 10(1)
20 Notice of protection
21 Compulsory licences and sales
Any person who sells reproductive material of—
made in respect of it expired,— shall use its denomination, and shall not associate any trade mark,tradename,orothersimilarindicationwiththatdenomination unless that denomination is clearly recognisable.
21(2) of this Act,— may, within 28 days after being given notice of that decision by the Commissioner, appeal against that decision.
Compare: 1973 No 37 s 26; 1979 No 29 s 12
24 Appeals to be made to District Court Every appeal under section 23 of this Act shall be made to a District Court by—
as if a District Court is a statutory Board within the meaning of the Fees and Travelling Allowances Act 1951.
In dealing with an appeal under section 23 of this Act,—
Where any person has appealed against any decision of the Commissioner, the operation of that decision shall be suspended until the appeal concerned has been finally disposed of. Compare: 1973 No 37 s 31
Subsections (1) and (2) were amended, as from 1 August 1990, by section 2(2) Plant Variety Rights Amendment Act 1990 (1990 No 82) by substituting theword “Secretary”fortheword “DirectorGeneral”whereverthatwordoccurred.
Court includes the Supreme Court, the Court of Appeal, the High Court, and any District Court District Court includes—
dence. Compare: 1973 No 37 s 6
Subsection(3)wassubstituted,asfrom1August2007,bysection 216 Evidence Act 2006 (2006 No 69). See clause 2(2) Evidence Act 2006 Commencement Order 2007 (SR 2007/190).
(3) The Secretary may from time to time designate any officer or employee of the Ministry an officer of the Office; and any personsodesignatedmayholdanyotherofficeintheMinistry at the same time. Compare: 1973 No 37 s 7 ThereferencetotheStateSectorAct1988insubsection(1)wassubstituted,as from 1 April 1988, for a reference to the State Services Act 1962 pursuant to section 88(1) State Sector Act 1988 (1988 No 20).
Subsection (3) was amended, as from 1 August 1990, by section 2(2) Plant Variety Rights Amendment Act 1990 (1990 No 82) by substituting the word“Secretary”for the word “DirectorGeneral”whereverthat word occurred.
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mittee, or to any technical advisor, appointed under this sec tionsuchfees,salary,allowances,andexpensesastheMinister from time to time approves. Compare: 1973 No 37 s 8
Subsection (1), (4), and (5) were amended, as from 1 August 1990, by section 2(2) Plant Variety Rights Amendment Act 1990 (1990 No 82) by substituting theword “Secretary”fortheword “DirectorGeneral”whereverthatwordoccurred.
ThereferencetotheStateSectorAct1988insubsection(2)wassubstituted,as from 1 April 1988, for a reference to the State Services Act 1962 pursuant to section 88(1) State Sector Act 1988 (1988 No 20).
Compare: 1973 No 37 ss 11, 12
commits an offence.
38 Regulations The GovernorGeneral may from time to time, by Order in Council, make regulations for all or any of the following purposes:
Compare: 1973 No 37 s 37
38A Orders in Council as to convention parties Forthepurposeofgivingeffecttoanyinternationalagreement orarrangementtowhichNewZealandisapartyorthatapplies toNewZealand,theGovernorGeneralmaybyOrderinCouncil declare that any entity specified in the order that is a party totheagreementorarrangementortowhichtheagreementor arrangementapplies(whetherastate,partofastate,aterritory for whose international relations a state is responsible, a political union,aninternational organisation,oranyotherentity) is a convention party for the purposes of this Act. Section38Awasinserted, as from 14 October1999, bysection 2(1) Plant Var
iety Rights Amendment Act 1999 (1999 No 122).
[Repealed]
Section 40 was repealed, as from 3 July 1990, by section 2(4)(l) Ministry of Agriculture and Fisheries Amendment Act 1990 (1990 No 53).
[Repealed]
Section 41 was repealed, as from 3 July 1990, by section 2(4) Plant Variety Rights Amendment Act 1990 (1990 No 82).
[Repealed]
The Schedule was repealed, as from 1 July 1994, by section 2(3) Plant Variety Rights Amendment Act 1994 (1994 No 52).