5.1 DUS Test Growing in Australia

Date Published

Introduction to DUS Testing in Australia

Article 12 of the 1991 Act of the UPOV Convention provides options for an authority to gain information about a variety. The authority may:

a) grow the variety or carry out necessary tests;

b) cause the growing of the variety or the carrying out of other necessary tests; or

c) take into account the results of growing tests or other trials which have already been carried out. 

For the purposes of examination, the authority may require the breeder to furnish all necessary information documents and material.  

Australia uses a combination of options (b) and (c) to complete an effective, transparent and legally robust examination process. Requiring the applicant to conduct the DUS test is referred to as “test carried out by or on behalf of the breeder” and has been expressly sanctioned by the UPOV Council (see TGP/6.3).

In the context of distinctness, uniformity and stability (DUS) testing in Australia, the term "breeder" more accurately refers to the applicant for PBR. However, it should be noted that in most cases the applicant is also the breeder of the variety under test. In the Australian system, the onus of proof is on the applicant who has to show that the variety meets the DUS criteria.

This is achieved by the applicant either:

  • Gaining the necessary accreditation as a Qualified Person (QP) and conducting a comparative trial themselves, or by employing a QP to do the trial on their behalf; or
  • Drawing on data and official overseas test reports obtained from another UPOV member country. Subject to their sufficiency, the QP may choose to combine the use of these reports with a limited growing trial in Australia (a “verification trial”).

The QP designs the trial, including the selection of comparator varieties, collects and analyses the data, documents in words and photographs the distinguishing features of the variety, submits the detailed description and in association with the applicant, rebuts any comments, objections or requests for revocation.

Comparative Growing Trial

Introduction

To be distinct, clear differences must be present between the new variety and all varieties whose existence is a matter of common knowledge at the priority date.

Generally, distinctiveness is established by an objective comparison between the new variety and the most similar variety(ies) of common knowledge. While this is usually accomplished through side-by-side comparative growing trials, systematic individual comparison with all varieties of common knowledge may not be required or practical.

Requirement to follow the UPOV Test Guidelines, Test Guideline Procedures or National Descriptors where appropriate

Where a comparative trial is conducted in Australia it must conform to the usual scientific standards and use UPOV Test Guidelines (TG) where they are available.

While useful guidance is included in UPOV TGs, strict adherence in all aspects is not required. For example, it is open for the examiner to decide that strict adherence is not required where the general requirements of the TG are outside those used in the Australian breeder testing system (e.g. supply of planting material; number of growing cycles, etc.) or where the requirements do not appropriately apply to the particular circumstances of the application.

  • QPs are directed to focus on compliance with TG sections on: test design; additional tests; assessment of Distinctness, Uniformity and Stability; grouping varieties and organisation of the growing trial; introduction to the table of characteristics; the table of characteristics; and explanations on the table of characteristics.

National Descriptors (NDs) are developed where a UPOV TG does not exist. QPs are required to use these National Descriptors although examiners normally allow considerable flexibility to amend and improve NDs using information and experience gained from the trialling of the candidate varieties concerned.

  • Where no TG or ND exist, the QP will work with the PBR office to develop a draft ND.
  • NDs are developed according to the UPOV’s guidance in relation to characteristics, states of expression etc.

Choice of comparators for inclusion in the comparative growing trial

Comparator varieties are those against which the candidate variety needs to be compared and found clearly distinguishable. Comparator varieties are drawn from the pool of varieties whose existence is a matter of common knowledge at the time of the application. These varieties are referred to as varieties of common knowledge (VCK).  

The QP nominated for the application has sole responsibility to identify and include the most similar VCK in the comparative growing trial (see Arrangements for DUS Testing (TGP/6)).

QPs are alerted to this responsibility, including by way of:

  • Instructions relating to applying for accreditation as a QP:

    • QPs apply for accreditation based on their claims of qualifications and experience in relation to one or more species. This includes knowledge of relevant varieties of common knowledge.  

  • the letter accrediting them as a QP;  

  • the letter notifying that the application for PBR has been accepted;  

  • the list of functions that the QP has agreed to in relation to the application in the Nomination of a Qualified Person form; and

  • training at QP Workshop(s).   

Subject to an examination of the detailed description for consistency, the validity of the QP’s choice of comparators is dealt with through the objection (s35) and revocation process (s50).

Guidance on selection of comparator varieties

The General Introduction to the Examination of Distinctness, Uniformity and Stability and the Development of Harmonised Descriptions of New Varieties of Plants (TG/1/3) provides guidance regarding VCKs (see subchapters 5.2-5.3). 

It is noted that Australian practice does not employ a separate technical questionnaire as referenced in subchapter 5.3.1.4 of UPOV TG/1/3, but instead includes relevant elements in the Part 1 Application Form and the specific grouping characteristics used to identify the most similar VCK in the variety’s Detailed Description. 

Once a new variety is clearly distinguished from the most similar VCK, logic dictates that it is also clearly distinct from all other VCK. 

Examiner searching of comparator varieties

While the QP nominated for the application is responsible for identifying and including the most similar VCK in the comparative growing trial, examiners must confirm that the selected VCK is the most similar to the candidate variety. 

Establishing that a VCK has similar characteristics to a candidate variety can generally be established via Google searching or similar. However, examiners should employ further searching methods and strategies (for example by searching the PBR database) if there is any doubt as to whether the most similar VCK has been identified by the QP. 

Note: Examiners must search all VCKs nominated in a Part 1 application form without restricting their search to only those nominated in the first table of question 18 (ii) in the Part 1 form. 

Examination of DUS

A physical examination of the comparative growing trial is conducted by the PBR Office (unless notified otherwise) at a time when the trial displays the major differences between the candidate variety and the most similar VCK. See 11.4.2 Assessment of Requirement for Field Examination for more detail on the risk analysis relating to whether a field trail should be examined or not.

Examination of Distinctness, Uniformity and Stability follows guidelines adopted by UPOV when they are relevant to Australia’s “test carried out by or on behalf of the breeder” regime.  The following documents are particularly relevant, although other UPOV documents including those in the TGP, TG, Explanatory Notes, and Information series may provide additional guidance in particular situations. All other UPOV documents are available at http://www.upov.int/resource/en/.

Examiners should complete the PBR Field Examination Report in Intelledox. ​​​​​​​

Amended Reasons

Amended Reason Date Amended

Fixed internal link to Intelledox form.

Amended link to 11.4.2 Assessment of Requirement for Field Examination to display correct page title

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