Plant Breeders' Rights

Introduction:

South Africa is party to the 1978 Act of the UPOV Convention.

Plant breeders' rights in South Africa are governed by the Plant Breeders' Rights Act, 15 of 1976 (as amended).

The Act provides for the granting of rights in respect of varieties of various prescribed kinds of plants. A list of prescribed plants is available on request.

A "variety" means any plant grouping within a single botanical taxon of the lowest known classification which can be:

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

 Registrability:

To qualify, the variety must be:

  • New i.e. the propagating material or harvested material thereof has not been sold or otherwise disposed of by, or with the consent of, the breeder for purposes of exploitation of the variety:

1. in the Republic of South Africa for more than one year; and
2. in a convention country or an agreement country in the case of:

  • varieties of vines and trees, for more than six years; or
  • other varieties for more than four years, prior to the date of filing of the application for a plant breeders' right;
  • Distinct i.e. 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;
  • Uniform i.e. 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;
  • Stable i.e. the characteristics thereof remain unchanged after repeated propagation or, in the case of a particular cycle of propagation, at the end of such cycle.

Effect of the Right:

The effect of the grant of a plant breeders' right is that any person wanting to undertake:

  • production or reproduction;
  • conditioning for the purpose of propagation;
  • sale or any other form of marketing;
  • exporting;
  • importing;
  • stocking for any of the purposes referred to in paragraphs (a) to (e).

of:

  • propagating material for the relevant variety; or
  • harvested material, including plants, which was obtained through the unauthorised use of propagating material of the relevant variety;
  • shall only be entitled to do so during the currency of the plant breeders' right if authority is obtained by way of licence from the plant breeder.

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

Exceptions:

The above rights do not apply if the breeder has had reasonable opportunity to exercise his or her right in respect of the propagating material of the protected variety.

A person who procured any propagating material of a variety in a legitimate manner shall not infringe the plant breeders' right if he or she re-sells the propagating material, sells any plant, reproductive material or product derived from the propagating material for the purposes other than the further propagation or multiplication thereof, uses or multiplies the propagating material in the development of a different variety, uses the propagating material for purposes of bona fide research, uses the propagating material for private or non-commercial purposes or is a farmer who on land occupied by him or her uses harvested material obtained on such land from that propagating material for the purposes of propagation provided that harvested material obtained from the replanted propagating material shall not be used for the purposes of propagation by any other person other than that farmer.

Provisional Protection:

It is possible to obtain provisional protection before the grant of the plant breeders' right. The applicant must, however, 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 of South Africa any reproductive material of the variety in question. While a protective direction is in force, anything that would constitute an infringement of a plant breeders' right will be actionable.

Compulsory License:

Any person who is of the opinion that the holder of a plant breeders' right has unreasonably refused grant to him of a licence, may apply for a compulsory licence in respect of that right.

Licences:

Licence agreements must be recorded in writing and the holder of a plant breeders' right must notify the registrar (within a prescribed period) of each licence issued, and furnish the registrar with a copy of each licence issued.

Assignments:

The registrar must be notified of the transfer of a plant breeders' right, within a prescribed period.

Compensation in Respect of Infringement:

The holder of a plant breeders' right may upon proof of infringement and without proof of damages, in lieu of any action for damages, recover compensation in an amount not exceeding R10 000.00. In addition to any other remedy, a court may make an order in respect of the custody, surrender for disposal of any book, document, plant, propagating material, product, substance or other article.

Duration:

The duration of a plant breeders' right is:

  • 25 years, in the case of vines and trees; and
  • 20 years, in all other cases, calculated from the date on which a certificate of registration is issued.


An annual renewal fee is payable on or before 1 January of each year during the currency of the plant breeders' right.

Claiming Priority:

South Africa is a member of the International Convention for the Protection of New Variety of Plants (UPOV). There is also provision for bilateral agreements concerning plant breeders' rights. It is possible to claim priority from an application in another convention or agreement country provided the South African application is filed within a period of 12 months from which the application from which priority is claimed was deposited in a convention or agreement country.

Filing Requirements:

Note: It is necessary to have a local South African agent through which all applications and other correspondence must be addressed.

The documents required for a plant breeders' right application are the following:


Time Limit

Application for a Plant Breeders' Right (which may be signed by the agent);

at the time of filing

Notice of appointment of agent (Power of Attorney);

at the time of filing

Proof of right to apply (e.g. certified deed of assignment);

at the time of filing

Description of the variety which is prepared in response to a Technical Questionnaire which differs for different kinds of plant and which can be obtained, on request, from the Directorate;

at the time of filing

Certified copy of any foreign application from which priority is claimed;

within 3 months of filing

Plant material

within 12 months of filing*

 

* It is necessary to provide a phyto-sanitary certificate and obtain an import permit if propagating material has to be imported into South Africa

Marking:

After registration, propagating material which is sold for the purposes of propagation, must indicate the denomination of the variety on a label which is attached thereto or, if it is packed in a container, on the container.

If a trademark is used in conjunction with the denomination, the trademark and denomination shall be clearly distinguishable.

Costs:

Please contact David Cochrane at d.cochrane@spoor.com for approximate filing costs.

Other Information:

Varieties of certain kinds of plants, typically important commercial crop plants, cannot be sold in South Africa unless the variety is placed on the Variety List which is compiled in terms of the Plant Improvement Act. This is to provide control over the sale and distribution of these plants and to protect the South African market against plants of low genetic quality, and agricultural produce with inferior properties, being made available. An application for registration in terms of the Plant Improvement Act may be made on the same form as the application for a Plant Breeders' Right.