A new avocado variety, the “Harricado" has made headlines. Discovered by Nelson’s Harry Pearson, the Harricado apparently boasts a creamy texture, nutty flavour, and impressive resistance to frost and potentially root disease. As this unique fruit is shared through the New Zealand Tree Crops Association (NZTCA), it’s a ripe moment to explore how new plant varieties can be protected under New Zealand law.
The legal pit of plant variety rights
In New Zealand, the main way to protect a new plant variety is through Plant Variety Rights (PVRs), governed by the Plant Variety Rights Act 2022. PVRs give breeders exclusive rights to produce for sale and sell propagating material of their new variety for up to 25 years (depending on the species). Unfortunately, applying for PVRs isn’t as easy as planting a seed. It involves submitting technical data and field trials to the Intellectual Property Office of New Zealand (IPONZ).
To qualify, a variety must be:
- Novel (not previously sold or distributed with the breeder’s consent)
- Distinct (clearly different from known varieties)
- Uniform (consistent in key characteristics)
- Stable (unchanged after repeated propagation).
What about patents?
The Patents Act 2013 was amended such that plant varieties have been excluded from patentability in New Zealand. Such an exclusion mirrors other countries' approaches such as in the European Patent Convention. As a result, PVRs are the way to grow if wanting to protect one's new plant variety.
However, it is possible that plants per se remain patent-eligible in New Zealand. This is because, unlike in Europe, New Zealand does not exclude “essentially biological processes for the production of plants” from patentability.
To protect or not to protect?
For breeders seeking commercial returns or control, PVRs are the main legal tool. But while PVRs offer strong legal rights, the process can be complex, so understanding the PVR system is essential for anyone developing new varieties.
If you’re cultivating the next big thing in horticulture, seeking expert legal advice can help you simplify legal requirements that may otherwise seem "too hard" and provide you with the best options for protection and commercial success. Our Buddle Findlay team has extensive experience in intellectual property and horticultural law, and we’re here to support you at every step.
This article was prepared by Sophie Thoreau (special counsel) and Amy Irvine (solicitor).
