Plant Breeder’s Rights1
Plant breeders’ rights are to a great extent dealt with in the same way as patents. There are several important differences, however, which are set out briefly below.
Period of protection
A plant breeder’s right is granted for 25 years in the case of vines and trees, and for 20 years in all other cases.
An annual renewal fee is payable, as in the case of patents.
South Africa is a signatory to the UPOV Convention of 1978 (International Convention for the Protection of New Varieties of Plants). Plant breeders’ rights in South Africa are also regulated in accordance with the Plant Breeders’ Act, 15 of 1976.
As with patents, application for a plant breeder’s right must be made to the Registrar of Plant Breeders’ Rights, and specific provisions apply in this regard.
Requirements for the registration of a variety as a plant breeder’s right:
In order to meet the requirement of being deemed new, the variety should not have been made available to the commercial market for a period of one year in the case of South Africa; a period of six years in the case of trees and vines, in so far as the variety has been made available in a convention country; or a period of four years in all other cases, in so far as the variety has been made available in a convention country.
The variety must be clearly distinguishable from existing varieties of the same kind of plant.
A particular characteristic of the variety must at all times be present in the variety, within the normal limits of variation.
The variety must be stable in the sense that the particular characteristics of the variety will remain unchanged during propagation.
As in the case of a patent, a plant breeder’s right confers on the holder the right to produce, propagate, sell, import and export the variety. This right also applies to varieties which are derived from the registered variety, but which are not necessarily distinguishable.
1Plant Breeder’s Act 15 of 1976