COUNTRY NEWS: Battle goes on for grower

Having a fruit named after him has brought Marcus Wilkins nothing but trouble, reports Elaine Fisher.
''I wish I'd never seen it." That's how Marcus Wilkins describes his feelings about the kiwifruit variety which bears his name.
It's 24 years now since he and wife Jan gained what was probably the world's first Plant Variety Right for a kiwifruit, but that patent has cost hundreds of thousands of dollars and caused him nothing but grief.
The Wilkins did export small volumes of the fruit they believe is superior in shape and possibly taste to ordinary Hayward, in 1987 and '88, but that came to an end when the industry was restructured in 1989.
"Since then we haven't been able to export or market our fruit as a distinct variety."
 Amendments made to the Kiwifruit Marketing Regulations of 1977 gave the Kiwifruit Marketing Board (KMB), and subsequently Zespri, sole rights to export New Zealand grown kiwifruit anywhere in the world except Australia.
The potential of the "sport", which caused so much excitement for Marcus and Jan when they discovered it while working in their young Hayward orchard has, they say, been crushed in ways the original regulations never intended.  They have lost their economic freedom and property rights, Marcus says.
"There was simply no mandate for the regulations to cover any and all kiwifruit varieties, particularly varieties in respect of which Plant Variety Rights had been granted," he says.
Marcus says the regulations to create the KMB as a producer board in response to an industry crisis of oversupply and falling returns, specified only the simple genus for kiwifruit of "actinidia" and thus covers all kiwifruit, not just Hayward.
"I would argue that the only mandate that was given by growers in 1988 was solely for the control of the commodity Hayward variety kiwifruit."
His own Wilkins Super kiwifruit should have been outside the regulations, Marcus says.
In the years since, Marcus has unsuccessfully battled for the right to have his fruit marketed as a separate variety. "It's cost hundreds of thousands of dollars and affected my health."
Instead of bearing his name, the fruit has been sold as Hayward and packed in bulk because the elongated shape  doesn't fit the round "plix" tray liners used for standard Hayward.
Marcus says he has been denied the chance to discover if Wilkins Super could earn a premium  on the international market.
"The only market open to us has been the low-returning Australian market."
 Marcus is now applying for an extension - not because he has high hopes of making a fortune from the fruit, but as a matter of principle. "It's about the property rights of individuals. If I had a Plant Protection Right over any other fruit I would be entitled to market it as I saw fit, but because it's a kiwifruit I have been prevented from doing so.
"The regulations effectively limit growers' rights to choose what kiwifruit varieties to plant on their land. This is an infringement of the property rights of landowners. Additionally, the regulations affect the intellectual property rights of plant breeders ."
Zespri's stance could also damage New Zealand's international reputation, Marcus believes. Kiwifruit plant breeders keen to establish a year-round supply of fruit may want to grow their varieties in New Zealand, as Zespri already does with its gold fruit in the Northern Hemisphere. "They would quite rightly see it as unfair for Zespri to be able to plant its varieties in their backyard and control both the plant material
and the fruit when they are not free to do that with their own varieties in New Zealand."
There is, Marcus says, a conflict between the Plant Variety Rights Act and the kiwifruit export regulations.
His determination to continue the battle has been prompted by an approach from Turners & Growers, which is taking legal action against the kiwifruit industry regulations.
"They are interested in our variety for their own varieties programme. We notified Zespri of their interest but received no response. Subsequently, we took advice from patent attorneys who informed us that because the variety had not been commercialised by the sale of plant material, we were eligible to apply for a further PVR."
Marcus made that application and it has drawn an objection from Zespri. "It is strange that Zespri wants to oppose our application when they do not think the variety has any value and is 'inferior' and has 'poor keeping qualities'," says Marcus.
So incensed was he at this move, Marcus has written to Minister of Trade Tim Groser and eight other Members of Parliament, setting out the history of Wilkins Super, the problems he has experienced in gaining recognition of his rights under the PVR and asking what the Government intends to do about it.
Angry though he is, Marcus acknowledges that Zespri, which he says is a corporate, not a true co-operative, is acting to protect its interests.
However, with the move by Zespri into the ownership and commercialisation of new kiwifruit varieties, a conflict of interest has arisen, "Zespri, as a variety owner, has an interest in ensuring the continuation of the current regulatory framework which protects their varieties uniquely against competition from other kiwifruit varieties".
That, says Marcus is wrong, and if the Government  won't amend the regulations to give export authorisation to the owners of kiwifruit varieties other than those under Zespri's control, then it should compensate the holders of PVRs who are unable "to exercise the full extent of these PVRs".
"I  ... estimate that the direct costs associated with the Plant Variety Right over 23 years are well in excess of $150,000. This does not allow for inflation, use of money interest, opportunity  lost or place any value on my time or the stress that this situation has caused us," he said in his letter to Mr Groser.