Plant breeders rights

Introduction

Plant breeders’ rights in South Africa are governed by the Plant Breeders’ Rights Act (1) (“the Act”).

In terms of the Act, protection may be obtained in respect of a new, distinct, uniform and stable variety of any prescribed kind of plant. Plant breeders’ rights prevent third parties from propagating certain new varieties of plants developed by a plant breeder.

The Act defines “variety” as any plant grouping within a single botanical taxon of the lowest known classification which can be:

  1. defined by the expression of the characteristics resulting from a given genotype or combination of genotypes;
  2. distinguished from any other plant grouping by the expression of at least one of the said characteristics; and
  3. considered as a unit with regard to its suitability for being propagated unchanged.

Registration

In order for a variety to qualify for plant breeders’ rights it must be new, distinct, uniform and stable as defined in the Act and briefly discussed below.

In essence, a variety will be considered to be “new” if propagating or harvested material from it has not been sold or otherwise disposed of by the breeder:

  1. in South Africa for more than one year;
  2. and in a country signatory to the Berne Convention for more than six years in respect of vines and trees, and four years in respect of all other varieties.

A variety will be deemed to be distinct if it is clearly distinguishable from any other variety of the same kind of plant of which the existence on the date is a matter of common knowledge.

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

A variety will be deemed to be 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.

Only a breeder may apply for a plant breeders’ right. A “breeder” is:

  1. the person who bred or discovered and developed the variety;
  2. the employer of an employee who bred, or discovered and developed, the variety, if the employee did so in the scope of his/her employment; and
  3. the successor in title of parties identified in (a) and (b).

In order to register plant breeders’ rights an application for registration must be made to the Department of Agriculture, Forestry and Fisheries (“DAFF”) together with the prescribed application fees and documents. The application is examined by the authorities and samples of the plant will generally be required for testing.

The examination process normally takes between three and five years. A variety may not be sold or commercially exploited in South Africa during the examination period and until registration thereof, unless permission is obtained from the authorities.

It is possible to apply for provisional protection during the examination period. The holder of a protective direction is entitled to sell or offer for sale reproductive material of the variety in question, but only for the purposes of multiplication or testing. Provisional protection effectively allows the applicant the same protection as if a plant breeders’ right has been registered.

Term and Effect of Plant Breeders’ Rights

The term of a plant breeders’ right is:

  • 25 years, in the case of vines and trees; and
  • 20 years, in all other cases.

The term is calculated from the date on which a certificate of registration is issued and an annual renewal fee is payable on or before 1 January of each year during the currency of the plant breeders’ right.

The effect of the grant of a plant breeders’ right is that a third party wanting to undertake the

  1. production or reproduction;
  2. conditioning for the purpose of propagation;
  3. sale or any other form of marketing;
  4. exporting;
  5. importing; or
  6. stocking for any of the purposes mentioned in (a) to (e)

of

  1. propagating material of the relevant variety; or
  2. harvested material, including plants, which was obtained through the unauthorised use of propagating material of the relevant variety

during the currency of the plant breeders’ right, is only entitled to do so if authority is obtained by way of a license from the plant breeder.

These rights also apply to varieties which are derived from the registered variety and which are not distinguishable from the protected variety and the production of which requires the repeated use of the protected variety.

Practical considerations

After registration of a plant breeders’ right, propagating material of the relevant variety sold for the purposes of propagation must clearly and legibly indicate the denomination of the variety on a label which is attached thereto. If it is packed in a container, the denomination of the variety must be indicated on the container.

Before propagating material of certain kinds of plants can be sold in South Africa, the relevant variety must be placed on the Variety List which is compiled in terms of the Plant Improvement Act (2) and maintained by DAFF. The variety list includes the most economically important agricultural, vegetable and fruit crops. In order to do this, an application must be made to the Registrar for Plant Improvement.

(1) 15 of 1976
(2) 53 of 1976