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DEPARTMENT
OF AGRICULTURE No.
R. 1186 12
September 1997 PLANT BREEDERS' RIGHTS ACT, 1976(ACT No. 15 OF
1976) REGULATIONS
RELATING TO PLANT BREEDERS' RIGHTS The
Deputy Minister of Agriculture, acting under section 44 of the Plant
Breeders' Rights Act, 1976 (Act No. 15 of 1976), on behalf of the Minister
of Agriculture – (a)
has made the regulations in the Schedule;
and (b) has repealed the
regulations published by Government Notices Nos. R. 2630 of 24 December
1980, R. 37 of 6 January 1984, R. 990 of 3 May 1985, R. 1588 of 1 August
1986, R. 2349 of 14 November 1986, R 2341 of 16 October 1987, R. 1519 of
14 July 1989, R. 1975 of 15 September 1989, R. 1640 of 13 July 1990, R. 74
of 18 January 1991, R. 989 of 10 May 1991, R. 2415 of 4 October 1991, R.
1493 of 29 May 1992, R. 1561 of 20 August 1993, R. 2039 of 29 October
1993, R. 2534 of 31 December 1993, R. 368 of 25 February 1994, R. 492 of
18 March 1994, R. 1075 of 10 June 1994, R. 1452 of 26 August 1994, R. 831
of 9 June 1995, R. 997 of 7 July 1995, R. 1611 of 20 October 1995, R. 287
of 23 February 1996, R. 1203 of 26 July 1996, R. 95 of 24 January 1997 and
R. 308 of 28 February 1997. Definitions
1.
Unless the context otherwise indicates, words and phrases in these
regulations shall have the same meaning assigned thereto in the Act, and
– "Director-General"
means the Director-General: Agriculture; and "the
Act" means the Plant Breeders' Rights Act, 1976 (Act No. 15 of 1976). Kinds of plants in respect of which plant breeders' rights may be granted2.
A plant breeder's right, the contents and mode of exercise of which
are as determined in the Act and these regulations, may be granted in
respect of varieties of the kinds of plants specified in column 1 of Table
1. Submission
of applications 3.(1)
An application for the grant of a plant breeder's right shall be
submitted to the registrar on a form which is obtainable from the offices
of the registrar in Pretoria for this purpose. (2)
Such application shall be accompanied by – (a) a description, on a
technical questionnaire which is obtainable from the offices of the
registrar in Pretoria for this purpose, of a typical plant of the variety
concerned and of the procedure to be used for the maintenance and
reproduction of the variety concerned; (b) such coloured illustrations
as are required by the registrar, of a typical plant of the variety
concerned; (c) such propagating material
as is required by the registrar, of a typical plant of the variety
concerned; (d) written proof, where
applicable, of the title or authority of the legal representative or agent
submitting such application; (e) written authorisation from
the breeder or owner of the variety in respect of which an application for
a plant breeder's right is submitted; (f) the application fee
specified in item 1 of Table 2; and (g) the examination fees as
specified in items 4 and 5 of Table 2. Priority of
applications 4.(1)
If more than one application for the grant of a plant breeder's
right in respect of the same variety is received by the registrar, the
registrar shall subject to the provisions of section 8(2) of the Act, give
priority to the application first received. (2)
A claim to give priority in terms of section 8(2) of the Act to an
application for the grant of a plant breeder's right in respect of a
variety which is preceded by an appliction by or on behalf of the same
applicant for the protection of the rights in the same variety in a
convention country or an agreement country, and which has been deposited
in accordance with the laws in force in that country shall – (a)
be lodged with the registrar on a form which is obtainable from the
offices of the registrar in Pretoria for this purpose; (b)
be lodged within 12 months from the date on which the application
for the protection of the rights in the same variety was duly deposited in
a convention country or an agreement country;
and (c) be accompanied by the fee
specified in item 2 of Table 2. (3)
Such claim for priority shall within six months from the date on
which it was lodged to the registrar, be confirmed by submitting to the
registrar a copy, certified as correct by the appropriate authority in the
convention country or agreement country in question, of each document
which constitutes the relevant preceding application. (4)
the period referred to in section 8(4) of the Act, within which an
application thus given priority shall be confirmed by supplementing it in
any respect necessary in order to comply with the requirements of the Act
shall be four years: Provided
that if the preceding application in a convention country or an agreement
country is withdrawn or rejected, the registrar may require that such
supplementation be completed at an earlier date. Denominations
for varieties
5.(1)
The denomination which is proposed for a variety in terms of
regulation 3(2)(c) shall – (a)
be suitable to identify the variety; (b) not be such as to be liable
to mislead or to lead to confusion concerning the characteristics, value
or identity of the variety in question or the identity of the breeder
thereof; (c) be different from each
denomination which distinguishes existing varieties of the same or a
closely related kind of plant in a convention country or an agreement
country; (d) subject
to the provisions of subregulation (3) not be identical with or similar
to, or liable to lead to confusion with a mark which enjoys the protection
accorded thereto by the Trade Marks Act, 1963 (Act No. 62 of 1963), and
which applies to propagating material or the use in connection therewith
or in connection with a product thereof; (e) not
be inimical to public order or contrary to morality;
and (f) be
the same in all convention countries or agreement countries. (2)
If the registrar considers a denomination proposed for a variety as
unsuitable, the applicant concerned shall submit a translation thereof or
some other denomination acceptable to the registrar, within two months
from the date on which he or she was directed in writing to do so. (3)
Notwithstanding anything to the contrary contained in these
regulations – (a) a
mark referred to in subregulation (1)(d) may only be approved as a
denomination for a variety if the applicant concerned submits documentary
proof that the holder of the mark concerned renounces his or her right to
such mark as from the date on which a plant breeder's right to the variety
is granted; and (b) the denomination
approved by the registrar for a variety in respect of which protection has
been granted by, or an application for protection has been lodged with the
appropriate authority in a convention country or an agreement country in
accordance with the laws in force in that country shall be the same as the
denomination thus protected or thus applied for in such country, on
condition however that the provision of subparagraph (a) are complied with
and that a priority claim on such denomination is not proved by another
person. (4)
When a variety is advertised, offered to sale or marketed, it shall
be permitted to associate a trademark, trade name or other similar
indication with a registered variety denomination. (5)
A trademark, trade name or other similar indication referred to in
section (4) shall not be used alone without the variety denomination which
must a all times be easily recognisable. Publication
of applications
6.(1)
The particulars specified in item 1 of Table 3 shall be published
in terms of section 13(1) of the Act in respect of an application for the
grant of a plant breeder's right which has not been rejected by the
registrar in terms of section 11 of the Act. (2)
The particulars specified in item 2 of Table 3 shall be published
in terms of section 13(2) of the Act in respect of an application for the
grant of a plant breeder's right which has been withdrawn before a plant
breeder's right has been granted in respect of the variety concerned. Grant of
provisional protection
7.
An application for a protective direction in terms of section 14 of
the Act with a view to the provisional protection of the plant breeder's
right which may be granted in respect of a variety shall be submitted on a
form which is obtainable from the offices of the registrar in Pretoria for
this purpose. Objections
against applications for the grant of plant breeders' rights
8.(1)
An objection against an application for the grant of a plant
breeder's right shall – (a) be lodged with the
registrar in writing within six months from the date on which the
particulars relating to the application concerned were published in terms
of section 13(1) of the Act; (b)
state the name and address of the person objecting; (c)
indicate the published particulars of the application concerned; (d) subject to the provisions
of section 17(2) of the Act, state the grounds on which it is based;
and (e)
be accompanied by the fee specified in item 3 of Table 2. (2)
The registrar may direct that such objection be substantiated by
such proof as may be deemed necessary. (3)
A person thus objecting shall serve a copy of any document and
other proof lodged in terms of subregulations (1) and (2) on the person
who submitted the application concerned and shall furnish the registrar
with proof of such service. (4)
A counter-statement against such objection by the person who has
submitted the application concerned shall – (a) be lodged with the
registrar in writing within 60 days, or such further period as the
registrar may allow, from the date on which such person has received the
relevant objection and other proof referred to in subregulation (2); (b)
indicate the published particulars of the application concerned;
and (c) set out the
particulars of each ground upon which any allegation of the person
objecting, is contested. (5)
The person lodging such counter-statement shall serve a copy
thereof on the person objecting and shall furnish the registrar with proof
of such service. (6)
The registrar shall notify the person who objected against the
application for the grant of a plant breeder's right, the person who
applied for the plant breeder's right and the person or persons appointed
to assist him or her in hearing the objection in writing of the date and
time on which and the place at which the objection will be heard. (7)
At the hearing of an objection against an application for the grant
of a plant breeder's right – (a) any person referred
to in subregulation (6) will be allowed to call witnesses during the
hearing and to cross-examine other witnesses; (b)
the onus rests with each person to notify his or her witnesses of
the date, place and time of the hearing and to ensure their presence at
the hearing. (c) the person who lodged
the objection against an application for the grant of a plant breeder's
right shall be allowed to present his or her case first and to call
witnesses; and (d) the person who
applied for the plant breeder's right shall then be allowed to present his
or her case and to call witnesses. (8)
After hearing all the evidence, the registrar shall reach a
decision and thereafter in writing advise the person objecting and the
person who applied for the grant of the plant breeder's right concerned,
of his or her decision and of the grounds on which it is based. (9)
The registrar shall publish the particulars specified in item 3 of
Table 3 in respect of an application for the grant of a plant breeder's
right when such application has lapsed because an objection against it has
been upheld. Consideration
and examination of applications
9.(1)
When the registrar undertakes tests and trials in terms of section
19(2) of the Act in order to determine whether a variety of a kind of
plant specified in column 1 of Table 1, is a variety which qualifies for
the grant of a plant breeder's right under section 2 of the Act, the
examination fees specified in items 4 and 5 of Table 2 shall be payable to
the registrar by the applicant concerned. (2)
The amount payable in respect of the cost of results which are
obtained from the appropriate authority in a convention country or an
agreement country in terms of section 19(4) and (6) of the Act shall be
the fee determined by the appropriate country and shall be calculated at
the rate of exchange between the monetary units of the Republic and the
country concerned as on the date of payment of such costs to the
appropriate authority concerned. (3)
The amount specified in item 6 of Table 2 shall be payable when the
registrar provides the results of tests and trials undertaken by him or
her to the appropriate authority in a convention country or an agreement
country. (4)
The particulars specified in items 4 and 5 of Table 3 shall
respectively be published in respect of – (a) a plant breeder's right
which has been granted; and (b) the refusal to grant a
plant breeder's right. Payment of
annual fee
10.(1)
The annual fee which is, in terms of section 22 of the Act, payable
to the registrar during the currency of a plant breeder's right in respect
of a variety of a kind of plant specified in column 1 of Table 1 by the
holder of such right shall be the amount specified in item 7 of Table 2. (2)
If the annual fee for a particular year has not been paid prior to
or on 31 January of that year, an additional amount of 10 per cent of the
appropriate fee referred to in subregulation (1) shall be payable in terms
of section 22(2) of the Act for each month or portion of a month of late
payment. Period of
plant breeders' rights
11.
The period for which a plant breeder's right in respect of a
variety of a kind of plant specified in column 1 of Table 1 is granted
shall be as specified in column 3 of the said Table opposite the name of
the kind of plant concerned. Period of sole rights11(a).
The holder of a plant breeder's right in respect of a variety of a
kind of plant specified
in column 1 of Table 1 shall during the period specified in column 4 of
the said Table opposite the name of the kind of plant in question, have
the sole right referred to in section 23 of the Act. Notice of
licences
12.(1)
The holder of a plant breeder's right shall notify the registrar on
a form which is obtainable from the offices of the registrar in Pretoria
for this purpose, of each licence which was issued by him or her in terms
of section 25 of the Act. (2)
Such notice shall be submitted to the registrar within 30 days from
the date of issue of the licence concerned. Application
for compulsory licences
13.(1)
An application for the issue of a compulsory licence in respect of
a plant breeder's right shall – (a)
be submitted in writing to the registrar; (b)
indicate the published particulars of the application concerned; (c) set out the reasons why the
applicant concerned considers the refusal by the holder of the plant
breeder's right concerned to issue a licence, or the conditions imposed to
be unreasonable; and (d) be accompanied by the fee
specified in item 8 of Table 2. (2)
The registrar may direct that such application be substantiated by
such proof as he or she may deem necessary. (3)
a person thus applying shall serve a copy of any document and proof
submitted in terms of subregulations (1) and (2) on the holder of the
plant breeder's right concerned and shall furnish the registrar with proof
of service thereof. (4)
The holder of such plant breeder's right may within 60 says from
the date of receipt of the document and proof referred to in subregulation
(3), or within such further time as the registrar may allow, lodge a
counter-statement with the registrar in which the particulars of any
ground upon which he or she contests the application concerned are set
out. Transfer
of plant breeders' rights
14.(1)
The holder of a plant breeder's right shall notify the registrar on
a form which is obtainable from the offices of the registrar in Pretoria
for this purpose, of the fact that such a right or any part thereof has
been transferred to another person. (2)
Such notice shall – (a) be submitted within 30 days
from the date on which the plant breeder's right concerned or a portion
thereof was transferred; and (b)
be accompanied by the fee specified in items 9 of Table 2. (3)
When the registrar has been notified of the transfer of a plant
breeder's right as contemplated in subregulation (1), the particulars
specified in item 6 of Table 3, in respect of such transfer shall be
published. Alteration
of denominations
15.(1)
An application for the alteration or supplementation of the
denomination approved for a variety in respect of which a plant breeder's
right has been granted shall – (a) be submitted to the
registrar by the holder of the plant breeder's right concerned on the form
which is obtainable from the offices of the registrar in Pretoria for this
purpose; and (b)
be accompanied by the fee specified in item 10 of Table 2. (2)
If the registrar intends to approve the alteration or
supplementation of the denomination of a variety, the particulars
specified in item 7 of Table 3 in respect thereof shall be published. (3)
An objection against the intended approval of an alteration or
supplementation shall – (a) be lodged with the
registrar in writing within three months from the date on which the
particulars thereof were published in terms of section 32 (4) of the Act; (b) state the name and
address of the person objecting; (c) indicate the
published particulars of the application concerned; (d) state the grounds on
which it is based; and (e) be accompanied by the
fee specified in item 11 of Table 2. (4)
The registrar may direct that such objection be substantiated by
such proof as he or she may be deemed necessary. (5)
The registrar shall publish the particulars specified in item 8 of
Table 3 in respect of the denomination of a variety after he or she has
approved an alternation or supplementation thereof. Termination
of plant breeders' rights
16.(1)
An objection against the intended termination of a plant breeder's
right of which the holder thereof or the holder of a licence therein has
been notified as contemplated in section 33(2) of the Act shall – (a) be lodged in writing by the
holder of the plant breeder's right concerned or the holder of a licence
therein; (b) be
lodged with the registrar within 60 days from the date on which a person
referred to in paragraph (a) has been notified thereof; (c) state
the name and address of the person objecting; (d) indicate
the published particulars of the plant breeder's right concerned; (e) state
the grounds on which the objection is based;
and (f) be
accompanied by the fee specified in item 12 of Table 2. (2)
The registrar shall publish the particulars specified in item 9 of
Table 3 in respect of the termination of a plant breeder's right. (3)
The holder of a plant breeder's right shall return the certificate
of registration issued in respect thereof to the registrar within 30 days
from the date of the publication referred to in subregulation (2). Voluntary
surrender of plant breeders' rights
17.(1)
A notice by the holder of a plant breeder's right that he or she is
surrendering such a right, shall – (a) be submitted to the
registrar on a form which is obtainable from the offices of the registrar
in Pretoria for this purpose; and (b)
be accompanied by –
(i)
the fee specified in item 13 of Table 2;
and (ii) the
certificate of registration issued in respect of the plant breeder's right
concerned. (2)
The registrar shall publish the particulars specified in item 10 of
Table 3 in respect of the voluntary surrender of a plant breeder's right. Recognition
of agents
18.(1)
The registrar may recognise a person as an agent if he or she is
satisfied that such person – (a)
is of good standing; and (b)
has suitable qualifications and adequate experience; and
is therefore able to represent a person applying for the grant of a plant
breeder's right or the holder of such right and to further the interests
of such person or holder. (2) A notice in connection with the designation or substitution of an agent shall
– (a) be furnished by a person
who has applied for the grant of a plant breeder's right or by the holder
of such right; (b) be submitted to the
registrar on a form which is obtainable from the offices of the registrar
in Pretoria for this purpose; and (c) be submitted within 30 days
from the date on which such designation or substitution has come into
effect. Notice of
change of address
19.
Any change of the address which, for purposes of correspondence is
specified in an application for the grant of a plant breeder's right, or
of an address entered in the register, shall – (1)
as the case may be, be furnished by – (a) the person who has applied
for the grant of the plant breeder's right concerned; (b) the holder of the plant
breeder's right concerned; (c) the legal representative or
agent of such applicant or holder; or (d) the person to whom a
licence or compulsory licence has been issued in respect of the plant
breeder's right concerned; (2)
be submitted to the registrar on a form which is obtainable from
the offices of the registrar in Pretoria for this purpose;
and (3)
be submitted within 30 days from the date on which such change of
address has come into effect. Register of plant breeders' rights20.(1)
In the register of plant breeders' rights referred to in section 4
of the Act shall be entered – (a)
the kind of plant to which each variety belongs; (b)
the denomination of each variety and any approved alteration
thereof; (c) the principal
characteristics of each variety and, where varieties are produced by a
cross between certain hereditary components, the principal characteristics
of such components; (d) the full name and address
of the original breeder of each variety; (e) the name and address of the
holder of the plant breeder's right in each variety and the name and
address of each person to whom such right has been transferred; (f) the name and address
of the person who has been appointed as the agent of any person referred
to in paragraph (e); (g) the date of inception of
the plant breeder's right in each variety; (h)
the date on which a plant breeder's right ceases to exist and the
reason therefor; (i) the name and address
of each person to whom a licence or a compulsory licence has been issued
in terms of the Act for the use of a plant breeder's right;
and (j) such other
particulars as the registrar may, subject to the provisions of the Act,
deem necessary. (2)
The fee specified in item 14 of Table 2 shall be payable by a
person requesting inspection of the register of plant breeders' rights. Inspection
in and copies of documents
21.(1)
Any person – (a) desiring to inspect a
document submitted to the registrar in connection with an application for
the grant of a plant breeder's right; (b) requiring a copy of any
particulars in the register, or of a document referred to in paragraph
(a); or (c) requiring a certificate by
the registrar in connection with particulars or a document referred to in
paragraph (b); shall
apply therefor on a form which is obtainable from the offices of the
registrar in Pretoria for this purpose. (2)
Such application shall be accompanied by the appropriate
application fees specified in items 15, 16 and 17 of Table 2. Appeal to
the Minister
22.(1)
An appeal in terms of section 42 of the Act, shall – (a) be lodged with the
Director-General in writing within 60 days from the date on which the
registrar has given the appellant written notice of the decision or action
concerned; (b) state the reference number
and the date of the document by means of which such appellant was notified
of that decision or action; (c)
state the grounds on which the appeal is based;
and (d)
be accompanied by the fee specified in item 18 of Table 2. (2)
An appeal shall – (a)
when forwarded by post, be addressed to –
The Director-General: Agriculture (b)
when delivered by hand, be delivered to –
The Director-General: Agriculture Remuneration of chairperson and members of appeal boards23.
A person who is appointed in terms of section 42(2)(a) of the Act,
as a member of an appeal board, and who is not an officer, shall be
remunerated according to Category C of the Manual for the Application of
the System for the Administration of the Service Benefit Packages for
Office-bearers of Certain Statutory and other Institutions. Payment of
fees
24.(1)
Postage on and delivery costs of any application or document
submitted in terms of these regulations, as well as on or of anything else
pertaining thereto, shall be prepaid. (2)
Any fee payable in terms of these regulations, shall be paid by
means of a cheque, postal order or money order made out in favour of the
Director-General: Agriculture: Provided that if such fee is delivered by
hand, it may be paid in cash. (3)
Subject to the provisions of section 42(8) of the Act, fees which
are paid in terms of these regulations shall not be repayable. Address for the submission of documents25.
Any application, notice, objection or other document which is to be
submitted to the registrar in terms of these regulations shall – (a)
when forwarded by post, be addressed to –
The Registrar of Plant Breeder's Rights (b)
when delivered by hand, be addressed to or delivered to –
The Registrar of Plant Breeders' Rights
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