Plant variety rights: how IP is giving Mother Nature a helping hand

Lisa Leong:

When I say plant variety rights, do you imagine a whole row of diverse plants on a picket line, or is that just me? Plant variety rights are all around you. In the outdoor garden store to that banana you just ate for morning tea.

Hello, I’m Lisa Leong.

This is from Idea to Intellectual Property, a podcast about today’s big ideas and the IP considerations behind them.

Lisa Leong:

Dr. Nikki Templeton is a patent executive at AJ Park.

Nikki, is it patent or patent?

Dr. Nikki Templeton:

I think I flick between the two depending on who I’m talking to.

Lisa Leong:

No. So it’s not all the people in the know say it a particular way?

Dr. Nikki Templeton:

No, I think when I’m speaking I normally say a patent, but then if someone says patent to me, I think I mirror that bag.

Lisa Leong:

So you use it as a social cohesion tool?

Dr. Nikki Templeton:

Yeah. Just to relate to them.

Lisa Leong:

So Nikki, what is plant patenting all about?

Dr. Nikki Templeton:

Well, since we are based in New Zealand and Australia, we don’t actually call them plant patents. The only country that refers to them as a patent is America. In New Zealand and most other countries, we call them plant variety rights or plant breeder rights. But basically it’s a way to acknowledge all the work that a breeder puts into developing a new variety. So it basically provides them with basically make money off their invention. Often it takes 15 to 20 years for a variety to be developed and come to market. So it’s just a way to acknowledge all the hard work that breeder’s put into developing their new varieties.

Lisa Leong:

And what element of the plan is actually being patented then?

Dr. Nikki Templeton:

So PVR or a plant patent, it’s on the plant as a whole. So you can’t patent genetically modified aspects. It’s based on kind of the physical appearance of the plant. And when you get a plant variety right or a plant patent, it also protects the fruit that’s produced. So you have the exclusive right to sell and commercialize the fruit or the seeds. Or in the case of ornamental plants, the flowers that you would sell to flower markets.

Lisa Leong:

Can you give me a specific example? Plays of what we are talking about?

Dr. Nikki Templeton:

Yeah. So maybe you’ve noticed that the temperature of the world is rising, right? So climate change. And that’s affecting how much seed, one of your, I don’t know, like a grain, maybe that’s affecting how much rice you are able to harvest from your plants. So you’ve started a selective breeding program to try and create a variety where the hotter temperature doesn’t affect how much rice is being produced. Or the hotter temperature is leading to, I don’t know, your fruit being effectively sunburnt while it’s still ripening on the vine. So maybe you are trying to breed a peach that is not going to get sunburn as easily.

Lisa Leong:

Does that mean that this idea of being selective is important? So I can’t just accidentally discover something and then try and get a PVR or a PBR, a plant variety right?

Dr. Nikki Templeton:

Yeah. So the selective is the really important part of it, and it has to be something that is reproducible as well. It has to be stable. So you can’t just find one random mutation and decide to protect that. Maybe you’ve found a tree that has, I don’t know, a purple apple. Unless you can reproduce that purple apple generation after generation on a tree, it’s not protectable.

Lisa Leong:

And so is this area mainly for people in agriculture or people in the bees in industries rather than your backyard inventors, Nikki?

Dr. Nikki Templeton:

Yeah, it’s definitely something that’s more highly utilized by agricultural businesses or plant research development. They’ll often be working with growers to develop new varieties. Yeah, it’s not often your backyard breeder will utilize this system.

Lisa Leong:

Have you got an example of where this has been used and you think, wow, this has changed something pretty significant in the way we eat or in the way we grow things?

Dr. Nikki Templeton:

The most interesting one I’ve seen has been selectively breeding apples to cope with climate change so they can thrive in hotter environments. To me, that’s just ensuring that there is going to be a stable food supply as the climate changes.

Lisa Leong:

I just had this vision in my head of these hot apples just floating around the world.

Dr. Nikki Templeton:

So we refer to them as the Hot Apple Project. So, you’re pretty close.

Lisa Leong:

It sounds like climate change coming up quite a bit. What impact has that had on this whole area, Nikki?

Dr. Nikki Templeton:

I think a lot of the science savvy breeders and growers are realizing that their environments are changing and that if they want to stay, not so much stay relevant but stay at the top of their game with producing grains, seeds, foods that they’re needing to utilize varieties that are able to cope with the changing environment. People are realizing that. And so money and time is going into researching varieties that can cope and perform better.

Lisa Leong:

Nikki, I don’t know if you know but I’m a bit of an inventor and I’ve actually joined forces with a agricultural company and I’ve come up with a new food source. It has strange purple leaves and tiny purple banana like fruit. And I think this tiny banana fruit is really handy because sometimes we only eat half a banana, so we’ve created something which is even smaller than lady fingers. They’re actually little morsel type bananas. I’m wondering where I should start because I’m just worried that it’s just such a good invention, really good first school kids that I don’t want anyone to copy it. So what am I going to do, Nikki?

Dr. Nikki Templeton:

Okay, well first of, we’ll make sure you’re not selling it anywhere or telling everyone about it. That’s your first thing.

Lisa Leong:

Yes.

Dr. Nikki Templeton:

So say you’re in Australia, if that’s the country you’re going to first market it in, you’ve got 12 months to apply for protection from when you first sell it or market it. So if you’ve already sold it, we’ve got 12 months to get a PBR application in.

Lisa Leong:

Sorry. And selling is to the public or because I sold it to my brother for five bucks early on?

Dr. Nikki Templeton:

So it can be to the public, it can be to a commercial partner or through a licensing agreement. If you’ve already got your growing partner lined up and they’re going to produce it and sell it for you, then that counts as a novelty disclosure. From your first disclosure you’ve got 12 months to do your application in the country that you’ve disclosed it in. And then if you want to protect it worldwide, you’ve got up to six years if it’s a tree. Is your banana plant a tree?

Lisa Leong:

Yes, it is a tree.

Dr. Nikki Templeton:

It’s a tree. Okay. If it’s a tree, you’ve got six years to protect it worldwide then if it’s a tree. If it was like a flower plant, you’ve only got four years.

Lisa Leong:

Now you mentioned you’ve never heard of a tree like this. How do I actually prove that it is unique?

Dr. Nikki Templeton:

So what they’ll do is they will conduct a growing trial. In the industry it’s called a DUST examination, which stands for distinct uniform and stable. So what they’ll do is they’ll take your purple banana tree and they’ll grow it next to some normal banana trees of different varieties. And first off, they’ll assess whether yours is distinct. So whether it can easily be told apart from the other banana trees. Whether it’s uniform, so whether all of your banana trees all look the same, they all have all purple flowers and purple bananas. And then whether it’s stable. So through different generations of your banana plant, the change isn’t lost.

Lisa Leong:

Well, I’m feeling pretty confident actually, as you were going through that list that I can pass this test. What would happen actually if I did manage to get a patent for this invention, why should I go through these steps? And also how much is it going to cost me?

Dr. Nikki Templeton:

In Australia, if you are running your own trials and you don’t have to pay for a grower to come in, you can probably minimize your costs. And then you just pay for the examination, which I think is around 2,000 Australian dollars. If you’re getting an IP firm in to assist you they have their own fees as well, but they’re normally significantly less than the official fees charged by IP Australia. And without sounding like I’m trying to advertise IP firms, it’s a pretty niche system. And because you’re working with living material and things die and things go wrong, you want to make sure that if deadlines are missed or due to a storm that wipes out your banana crop during the trial that you know can get the appropriate extensions put in to redo the trial and not have your application lapsed because otherwise you’re starting from scratch and you’ve got all your fees to pay again. Whereas with a normal patent, you don’t have to worry about things dying or a bug infestation ruining your trial or adverse weather events so, it’s a bit more kind of an ad hoc system, I guess compared to a normal patent application system. You’ve just got to deal with nature.

Dr. Nikki Templeton:

Once you’ve actually got your patient or your PBR if you’re in Australia. So, what that means is that you’ve got the exclusive right to sell and propagate or offer for sale your variety as well as your delicious purple bananas. So of course, you can then license that out to growers so they can grow it and market it, sell it on your behalf. The other interesting things to point out is once you’ve got a PBR other people can actually use your plant for research and development of their own. They could see your purple bananas, your little tiny purple bananas and think, oh, I think they would be way cooler if they were red. So, they might try and do some kind of breeding to change a property of your purple banana plant. And if they can create a new variety that is distinct, so maybe it’s got red bananas, it’s uniform, all the bananas are red and it’s stable. So every generation, those bananas are always red, they don’t go back to purple, then they can apply for a PBR on their new variety.

Lisa Leong:

Is there anything else I should be considering in my patent protection of my amazing banana plant?

Dr. Nikki Templeton:

I think if you’re looking at it for commercial purposes, a PVR or a PBR is kind of one tool in the kit of things you can use to protect your variety. So you’d also want to be thinking about licensing agreements to people who are going to grow it, who are going to sell it for you, agreements with your vendors. The other really important thing, and that kind of interplay with the PBR system is trademarks. So with your PBR application, you have to name your variety, you have to give it a new name that’s novel and identifiable. But if you wanted to trademark it, also, you couldn’t use the trademark name as the variety name. So that’s another thing that an IP firm can help with because obviously the trademark is what you want to be marketing it as. Yeah, you don’t want to be using that as your variety name for your PBR, otherwise you can’t use it as a trademark. So yeah, there’s lots of little intricacies like that.

Lisa Leong:

And I hear that you are a bit of a gardener.

Dr. Nikki Templeton:

Yes. I live in Wellington, so I’m probably more of an indoor gardener. Our place is on a very hilly exposed section. I’ve tried growing things outside and the wind just destroys it. So yeah, it’s all an indoor garden at the moment.

Lisa Leong:

And has your work sort of influenced the way you look at your plants indoors?

Dr. Nikki Templeton:

Well, I’ve found it quite exciting when I’ve gone to a garden center and seen that something has a PBR label on it and I know what that actually means, and I kind of look for them just when I’m cruising around looking for new plants to buy.

Lisa Leong:

What do they look like?

Dr. Nikki Templeton:

Oh, it varies just depending on who the seller is. But just on the label of the plant where it says, you know what its name is and there’ll be a little cute picture of it. They’ll often either say PVR or PBR depending on which country. Yeah, some kind of statement about being protected, which is something I had never noticed before until I got into this field.

Lisa Leong:

Do you tend to situate yourself near those plants so that when people come up to have a look, you might point them to the label and say, well, I guess you’d be wondering what this signifies? Let me tell you, have you got half an hour-

Dr. Nikki Templeton:

That literally means-

Lisa Leong:

Let’s sit, have a chat over a banana.

Dr. Nikki Templeton:

Over a little purple banana. Yeah.

Lisa Leong:

It’s a good party trick.

Dr. Nikki Templeton:

Oh, definitely. Hours of entertainment.

Lisa Leong:

Nikki, what excites you most about this space?

Dr. Nikki Templeton:

So I’m a scientist by background before I got into this role, it’s the constant research and changing and development and kind of adapting to a new environment with climate change I think is what I find interesting.

Lisa Leong:

And for anyone listening who just has something in the back of their minds about should we be creating  heat resistance seeds or plants or varieties as a solution to climate change and other changes in our environment, what’s your feeling around that and that sort of tension there?

Dr. Nikki Templeton:

Well, evolution and development occurs naturally without human intervention so if it’s too hot, say you’ve got, I don’t know, a field of tomato plants. If it’s too hot, they’re not going to grow and there’s not enough water, they’re not going to grow. You’re going to get shriveled up non juicy, not nice tomatoes. But you might get one tomato plant that’s had some kind of naturally occurring mutation where it’s able to cope in this hotter environment with less water, and that’s natural selection so that tomato plant is going to survive, and if the tomato falls on the ground, the seeds hit the soil and then they grow next season into more of these heat resistant, drought resistant tomato plants, then nature has created that population for you anyway. I think with PVRs and PBRs, it’s not genetic modification. It’s kind of speeding up the natural selection process, is my personal take on it.

Lisa Leong:

Thank you so much, Nikki.

Dr. Nikki Templeton:

Thank you, Lisa.

Lisa Leong:

That was Dr. Nikki Templeton patent executive at AJ Park.

Thanks to our producer, Kara Jensen McKinnon.

This podcast is brought to you by IPH, Asia Pacific’s leading intellectual property services group, helping you turn your big ideas into big business. I’m your host, Lisa Leong. Bye for now.