plant breeders' rights

The Plant Breeders’ Rights Act 15 of 1976 makes provision for the protection of new varieties of plants. This Act applies to varieties that have been bred by conventional means as well as varieties that have been genetically modified; neither of which can be protected under the Patents Act 57 of 1978, which prohibits patents for any variety of animal or plant. 

South Africa is a member of the International Convention for the Protection of New Varieties of Plants and provides reciprocal protection to the varieties of other member states. In order to qualify for protection under the Act, the variety must be:

• new
• distinct
• uniform
• stable

new

A variety is deemed to be new if propagating material or harvested material thereof has not been sold or otherwise disposed of by, or with the consent of, the breeder for the purposes of exploitation of the variety-
          (i)       in the Republic of South Africa, not more than one year; and
          (ii)      in a convention country or an agreement country, in the case of -
                   (a)      varieties of vines and trees, not more than six years; or
                   (b)      other varieties, not more than four years, prior to the date of filing the application for a plant breeders’ right.

distinct

A variety is distinct if, at the date of filing of the application for a plant breeders right, it is clearly distinguishable from any other variety of the same kind of plant of which the existence on that date is a matter of common knowledge.

uniform

A variety is uniform if, subject to the variation that may be expected from the particular features of the propagation thereof, it is sufficiently uniform with regard to the characteristics of the variety in question.

stable

A variety is stable if the characteristics thereof remain unchanged after repeated propagation or, in the case of a particular cycle of propagation, at the end of such cycle.

who may apply for protection?

An application for a plant breeders’ right must be made by the breeder of that variety. “Breeder” is defined to include the person who bred, or discovered and developed the variety, or the employer of such a person where this person developed the variety in the scope of his employment or the successor in title of the aforementioned persons. 

The application can only be made by a person who is domiciled or resident within the Republic or a convention or agreement country. In the case of a juristic person, the application can only be made by a juristic person who has a registered office in the Republic or a convention country or an agreement country. Where a foreign juristic person does not have a registered office in the Republic the application must be submitted through an agent.

the application process

Tests are carried out by the National Department of Agriculture to ascertain whether the variety is new, distinct, uniform and stable as required by the Act. Given that plants require time to grow to maturity and need to be propagated for a number of seasons before they can be tested, the application process takes place over a number of years.

documentation requirements for the application

An application form must be completed by the applicant and it must be accompanied by:

• a technical questionnaire for that particular variety of plant, which provides the department with details as to the new features of that variety;
• coloured photographs of the variety (including fruit, leaves, flowers and whole plant) with an appropriate metric scale attached thereto;
• a power of attorney, if the application is made by an agent for the applicant;
• certified copies of each document which constituted the preceding application from which priority is to be claimed;
• proof of the applicant’s right to apply for a plant breeder’s right if the developer himself is not making the application: this takes the form of a deed of assignment; 
• the prescribed application fee and the prescribed fee for claiming priority, if priority is claimed.

priority claims

An applicant may claim priority from an application made in a convention country provided that such application has been made not more than 12 months prior to the application made in South Africa. The priority document must be lodged with the Registrar within three months of the South African application.

provisional protection

Pending the grant of the plant breeders’ right, the applicant may apply for provisional protection. The effect of provisional protection is that, subject to certain limitations, the variety is protected as if a plant breeders’ right had been granted and hence anything that would be actionable by the holder of a plant breeder’s right would be actionable under provisional protection. 

As a condition for the grant of provisional protection, the applicant is required to give a written undertaking to the Registrar that he shall not, while the protective direction is in force, sell or consent to sell in the Republic any reproductive material of the variety in question. This proviso does not, however, exclude the right to sell such reproductive material for the purposes of multiplication or testing, and all reproductive material produced during multiplication or testing shall become or remain the property of the holder of the protective direction.

the requirement for a variety listing

Variety listing is dealt with in the Plant Improvement Act 53 of 1976. For a variety to be recognised it must be new, distinct, uniform and stable as these terms are defined in the Plant Breeders’ Rights Act. 

An application for variety listing can be submitted simultaneously with an application for a plant breeders’ right. Such application will be only necessary where the crop in question is one which is recognised for variety listing. The national variety list is published quarterly in the Plant Variety Journal and can be used to determine what crop types require varietal listing. 

When variety listing is requested, an additional fee must be paid. However, the testing process for both applications is the same and hence the cost of the process is greatly reduced if the applications are made simultaneously.

Once a variety has been recognised the denomination of such variety is entered on the varietal list. Variety listing is important as the Plant Improvement Act mandates that plants and propagating material shall only be sold for the purposes of cultivation if the plants and propagating material are of a variety which is entered in the varietal list.

the importation stage

Once the Department of Agriculture has acknowledged receipt of an application for a plant breeders’ right, the material must be imported into the Republic so that the necessary tests for certification and granting of the right can be carried out. To import plant material into the Republic for testing two importation permits must be applied for:

• an importation permit from the National Department of Agriculture for the purposes of the Agricultural Pests Act 36 of 1983, which requires that any person wanting to import any plant into the Republic must do so under the authority of an importation permit. Such permits require compliance with certain phytosanitary conditions prior to the importation of controlled goods;
• an importation permit from the National Department of Agriculture for the purposes of the Plant Improvement Act, in cases where the relevant crop is listed on the varietal list. The permit requires the importer to certify that the imported material has not been genetically modified. If the material has been genetically modified, a different procedure for importation is adopted.

quarantine

All samples arriving in the Republic must undergo post-entry quarantine. The material will be quarantined for at least one year and testing will only commence once the quarantine period has expired.

growing up and testing

The plant material is grown up on test farms and tests are undertaken to determine whether the material qualifies for the grant of a plant breeders’ right in terms of the Act.

grant

Once the Registrar is satisfied that the application has met with all the specific requirements laid down in the Act, he will grant a plant breeders right for that specific variety, issue the applicant with a certificate of registration and publish particulars of the grant in the Government Gazette.

rights of the holder of a plant breeder's right

The holder of the plant breeders’ right or any person acting under a licence granted by such person shall have the right to produce and reproduce the variety, condition the variety for the purposes of propagation, sell or market the variety, export or import the variety and stock the variety for any of the aforementioned purposes and to exclude others from performing any of these acts. 

However, a person who acquires propagating material in a legitimate manner shall be entitled inter alia, to re-sell such material or to sell any plant, reproductive material or product derived from the propagating material, for purposes other than the further propagation or multiplication thereof.  Furthermore, such a person is also entitled to use or multiply the propagating material to develop a different variety or to conduct research or for private non-commercial purposes.

the period of protection

The period of a plant breeders’ right is 25 years for trees and vines and 20 years in all other cases, calculated from the date of registration.

renewal

An annual renewal fee is payable to the Registrar to keep the right in force. Renewal fees are payable on or before 1 January of the year following the date on which the plant breeders right is granted and each subsequent year.

useful links

The Plant Breeders’ Rights Act 15 of 1976: www.nda.agric.za/docs/plant_breeders_act/default.htm
The Plant Improvement Act 53 of 1976: www.nda.agric.za/docs/plant_improvement/default.htm
The National Department of Agriculture: Information and documentation relating to the application procedure: www.nda.agric.za/docs/geneticresources/variety_control.htm

disclaimer

The information provided is, by its nature, brief and incomplete, and is not meant as a substitute for detailed legal advice. Bowman Gilfillan Inc. shall not be liable for any loss resulting from the use of the information provided herein. We urge you to consult us with your specific queries in regard to any intellectual property matter.