Plant Breeders' Rights

What are Plant Breeders' Rights?

A plant breeder's right is a form of Intellectual Property Right providing for the acquisition of legal rights in terms of the Plant Breeders' Rights Act, 1976 (Act No 15 of 1976), in order to obtain royalties as remuneration for efforts made during the breeding of a new variety of a plant. It therefore provides the owner of a variety the opportunity to obtain financial reward for his/her efforts, as the breeding and development of a new variety is expensive and time consuming. It is important to obtain new and improved plant varieties as there is a constant demand for better quality, higher yields, better processing properties and increased disease resistance.

A plant breeder's right is valid for a period of 20 or 25 years, depending on the kind of plant. During the first 5 to 8 years (period of sole right) the owner has the sole right to produce and market propagating material of the variety. During the next 15 to 17 years the holder is compelled to issue licenses to other persons who also wish to use and market such material. If the holder of the right refuses to issue licenses, these individuals may apply to the Registrar for a compulsory license. During the period of the right, the holder may continue to claim royalties from all licensees for any propagating material produced and sold. Only after the expiry of the full period of the plant breeder's right, does the variety become public property and anyone may then propagate and sell it.

The holder of a plant breeder's right must protect his/her own interests and ensure that the variety is not exploited illegally by any unauthorised person.

The breeder of a new variety must maintain the variety and guarantee that propagating material, which still conforms with the original description, is always available. If he/she fails to do this, the Registrar may cancel his/her rights.

International cooperation

The International Union for the Protection of New Varieties of Plants (UPOV) was established in 1961 and South Africa was accepted as the tenth member of UPOV in 1977. By the end of 2001 there were more than 50 member countries and the number is increasing each year.

The main aims of UPOV are to standardise laws on plant breeders' rights, to determine standardised procedures for the testing of new varieties and to promote co-operation between member countries. Membership of UPOV has the advantage that any person within a member country may apply for plant breeders' rights in any other member country.

Plant breeders' rights are only valid in the country where they were granted. However, plant breeders' rights can be granted to a variety in more than one country.

Foreign owners of varieties are not keen to supply propagating material to individuals in other countries if such material cannot be protected with plant breeders' rights. Therefore, very little foreign propagating material would be available in South Africa if we did not have a Plant Breeders' Rights system.

Plants for which Plant Breeders' Rights may be granted

Plant breeders' rights can only be granted to varieties of kinds of plants that are recognised by the Act. A list of these plants is available on request from the Registrar. At present, approximately 250 kinds of plants are included in this list. If a kind of plant does not appear on this list, a written request must be submitted to the Registrar for Plant Breeders' Rights.

Requirements for the granting of Plant Breeders' Rights

A variety may be considered as new and plant breeders' rights may be granted if the following requirements are met:

Propagating material of a variety has not been sold in the Republic for longer than 1 year
Propagating material of a variety of a tree or of a vine has not been available in another 
country, in trade or to the public for more than 6 years, or in the case of any other plant for 
more than 4 years
Propagating material must comply with the DUS (distinctness, uniformity and stability) requirements:
It must be clearly distinguishable from any other variety of the same species
It must be uniform (homogeneous), i.e. all the plants in a planting must look similar 
and have the same characteristics
It must be stable i.e. the plants of the particular variety must, after repeated cultivation still look like the original plants
It must have an acceptable denomination.

Provisional protection

An applicant for plant breeders' rights may apply to the Registrar of Plant Breeders' Rights for provisional protection of a variety. This means that the variety is protected for the duration of the evaluation period. The applicant gives a written undertaking not to sell (except for purposes of multiplication or testing) any propagating material of the variety in question until all tests have been completed and plant breeders' rights have been granted. Provisional protection is recommended for crops where tests take more than one year to be completed.

Variety Listing (recognition of a variety)

Definition and use of a variety list

Before propagating material of any plant variety of the kinds of plants that have been declared in terms of the Plant Improvement Act, 1976 (Act No 53 of 1976) may be sold in South Africa, the denominations of such varieties must be included in the variety lists that have been instituted in terms of this Act. The Directorate maintains the variety lists that have been instituted for most of the important Agricultural, Vegetable and Fruit crops in South Africa. The declaration of certain crops for purposes of the Act and their inclusion in the variety lists is done at the request of the various local industries and research institutes. The determining factor is the importance of the plant to the South African economy.

The implementation and maintenance of a variety list regulates the supply of high quality propagating material which in turn promotes confidence in the industry, both locally and abroad. It also enables the Republic of South Africa to comply with the provisions of the seed certification schemes of the Organization of Economic Cooperation and Development (OECD), which are accepted in the EC countries. Such schemes facilitate the marketing of seed internationally.

For some crops that are declared as a kind of plant in terms of the Act, the variety list indicates "all varieties" in stead of listing variety denominations. This implies that propagating material of any variety of that plant may be sold, provided it is sold under a specific denomination and complies with the purity and germination requirements of the Act.

Crops that have not been declared as a kind of plant for purposes of the Act are not included in the variety lists and, therefore, there is no legal control over the sale of their propagating material.

Requirements for the recognition of a variety

A variety can be recognised and included in the variety list if it complies with the DUS (distinctness, uniformity and stability) requirements, as indicated for Plant Breeders' Rights.

After a variety has been recognised, trade and or post control tests are carried out regularly to ascertain whether the variety still complies with the original description, in other words whether it is stable.

Importation of propagating material of new varieties

In terms of section 13 (2) and 26(2) of the Act, the Registrar will in his discretion grant permission to import seed or propagating material for evaluation purposes of varieties of which the denominations are not in the variety list. Application to import propagating material of such varieties must be submitted on the prescribed form that is available at the Registrar.

Applications for Plant Breeders' Rights and/or variety listing

Any person or institution may apply for plant breeders' rights and/or variety listing. Such an application must be accompanied by the following:

Completed application form
Technical Questionnaire to be completed
Botanical and Common names
The prescribed application and examination fees
The prescribed quantity of seed or propagating material
Written authorization from the owner, if the variety has not been bred, selected or developed by 
applicant himself. This empowers the applicant to apply for plant breeders' rights and/or variety listing.

When applying for plant breeders' rights and/or variety listing, it must be clearly indicated on the technical questionnaire with which other known varieties the new variety should be compared, so that it can be ascertained whether the new variety is distinctly different.

There are prescribed dates on which documents and propagating material must be submitted to the Registrar. These dates, the fees payable, as well as the quantities of propagating material to be submitted and where it must be delivered, are available on request from the Registrar.

If a variety list exists for the kind of plant for which an application for plant breeders' rights is made, it is beneficial to the applicant in terms of time and money, to submit the applications simultaneously.

Publications:

All information regarding applications and granting of Plant Breeders' Rights and variety listing is published in the quarterly South African Plant Variety Journal. A complete list of all varieties with valid Plant Breeders' Rights is published annually in the Special Edition of the South African Plant Variety Journal. The journals and variety lists for seed and fruit crops are available on the Internet web-site of the Department at: http://www.nda.agric.za/docs/geneticresources/publications.htm

Further information can be obtained from:

The Registrar for Plant Breeders' Rights and Plant Improvement
Directorate Genetic Resources
PO Box 25322
Gezina
0031

Tel : 012 808 5080
Fax: 012 808 5392

E-mail: Variety.control@nda.agric.za

Regional offices

Nelspruit: Directorate Genetic Resources
Private Bag X11208
Nelspruit
1200

Tel : 013 753 7099
Fax: 013 752 3854

E-mail: elise@itsc.agric.za

Stellenbosch: Directorate Genetic Resources
Private Bag X5044
Stellenbosch
7599

Tel : 021 8091648
Fax: 021 8872264

E-mail: joans@nda.agric.za