Your Guide To Plant Variety Rights Protection In South Africa
Plant variety protection is an important way of ensuring and recognising the development of new varieties while safeguarding the recognition of plant breeders’ rights. The use of plant breeders’ rights can make agricultural businesses more competitive, both locally and internationally. With this in mind, it’s important to know your opportunities and obligations with regards to Intellectual Property (IP) management and plant breeders’ rights in the agricultural context.
What's in this guide?
1. Introduction to IP management and plant breeders’ rights
Intellectual property is a tool to foster innovation. Without the protection of ideas, businesses and individuals would not be able to reap the full benefits of their inventions. This would result in fewer people and ogranisations focusing on research and development.
The science of plant breeding changes the traits of plants to produce more desirable characteristics. This results in economic, environmental and health benefits.
What is intellectual property (IP)?
There are three principal areas of intellectual property: trademarks, patents and plant breeders’ rights.
Can a new plant variety be patented?
You can’t get patent protection for a plant variety produced by normal breeding techniques. A new plant variety developed by normal crossbreeding can be protected by PBR.
Plant varietals and trademarks
New plant varieties commonly have two names:
- The varietal name (denomination), e.g. Cripps Pink
- Trademark name, e.g. Pink Lady
To protect the exclusivity of the new variety, producers should both register the trademark name and apply for PBR.
The PBR for the Cripps Pink variety lasted for 25 years and has now expired. This means that anyone can now grow and sell the Cripps Pink variety. However, they need licenced permission to use the trademarked Pink Lady name.
2. What are plant breeder's rights?
A plant breeders’ right (plant variety rights) is a form of intellectual property right granted to breeders of new plant varieties. The intent of PBR is to protect of newly developed varieties against exploitation without the breeder’s permission. If you breed a plant variety and would like be financially rewarded for your efforts, you must register that variety with the Registrar for Plant Breeders’ Rights. Once you have registered a plant variety, it becomes your intellectual property.
These plant variety rights give the breeder exclusive control over the propagating and harvested material of a new variety for a number of years. This provided the owner of a variety with the opportunity to make money from his or her efforts.
Propagating material includes:
- Seed
- Cuttings
- Divisions
- Tissue culture
Harvested material includes:
- Cut flowers
- Fruit
- Foliage
With these rights, the plant breeder can choose to become the exclusive marketer of the variety or to license the variety to others.
Plant breeders are only granted rights for kinds of plants that are declared in terms of the Plant Breeders’ Rights Act, 1976 (Act 15 of 1976).
How IP rights for plant breeders work
- Plant breeders have IP rights for new plant varieties. Breeders of new plant varieties are granted PBR for protection against exploitation without their permission.
- If you breed a plant variety and would like to gain financial rewards for your efforts, you must register that variety with the Registrar for Plant Breeders’ Rights.
- An application for registration must be made to the Department of Agriculture, Forestry and Fisheries (DAFF) along with the prescribed application fees and documents.
- The application will be examined by the authorities. Samples of the plant will usually be required for testing.
- Once you have registered a plant variety, it becomes your intellectual property.
3. The Plant Breeders’ Rights Act 1976
In South Africa, plant breeders’ rights are recognised and protected under the Plant Breeders’ Rights Act 1976 (Act no. 15).
The Act provides the following:
- The requirements for the grant
- Scope of protection of plant breeders’ rights
- The grant of licenses
- The registration procedure
- The grant of compulsory licenses
- Other matters, for example, changes to:
- Denominations, agents, holders, withdrawals, surrenders, etc.
The Plant Breeders’ Rights Bill of January 2018 has been accepted and will take full effect after the regulations have been written. However, the existing South African legislation is a good starting point. For the purposes of this introductory article, we will not be examining changes brought about by the pending legislation.
The International Union for the Protection of New Varieties of Plants (UPOV)
Along with the Plant Breeders’ Rights Act 1976, South Africa is also a signatory to the International Union for the Protection of New Varieties of Plants (UPOV) 1976, an international body that provides a framework for PBR legislation. The country was accepted as the tenth member of UPOV in 1977.
The history of the UPOV
In 1957 in France, negotiations took place concerned with the protection of new varieties, which led to the creation of the Union Internationale pour la Protection des Obtentions Végétales (UPOV) and adoption of the first text of the International Convention for the Protection of New Varieties of Plants (UPOV Convention) in 1961. The mission of UPOV is to provide and promote an effective system of plant variety protection, with the aim of encouraging the development of new varieties of plants for the benefit of society.
UPOV aims to:
- Standardise laws on plant breeders’ rights
- Determine standardised and official procedures for the testing of new varieties
- Promote cooperation between member countries
By the end of 2001, the UPOV had more than 50 member countries. The main advantage of being a UPOV member is that any person within a UPOV member country may apply for plant breeders’ rights in any other member country.
Why do we need a plant breeders’ rights system in South Africa?
Plant breeding is deemed to be important to a nation’s economy. As with inventions, the breeding and development of a new variety is expensive and time-consuming. However, plant varieties produced using traditional methods of plant breeding are specifically excluded from patent protection, which is why specific legislation is required. The PBR Act of 1976 has been a major stimulus for the plant breeding industry.
Here’s why:
- It provides for financial remuneration
- It gives local plant breeders and producers access to high-quality new varieties produced globally
- Plant breeders won’t supply propagating material to individuals if this material cannot be protected by plant breeders’ rights
- It is important for the economy to obtain new and improved plant varieties to address the constant demands of increased disease and pest resistance, drought resistance, better processing properties and higher, better quality yields
4. Requirements for the granting of plant breeders' rights
The following requirements need to be met for a variety to be considered new and for plant breeders’ rights to be granted:
- Propagating material of a variety has not been sold in the Republic of South Africa (RSA) for longer than one year.
- Propagating material of a variety of a tree or a vine has not been available in another country—in trade or to the public—for more than six years; or, in the case of any other plant, for more than four years
- Propagating material must comply with the distinctness, uniformity and stability (DUS) requirements:
- Distinguishable/distinct from any other variety of the same species
- Uniform (homogeneous)
- Stable
- Have an acceptable denomination
The criteria for being new, distinct, uniform, stable (DUS)
New
Propagating material has not been sold in South Africa for longer than one year.
Variety has not been commercialised for more than four years.
Distinct
Clearly distinguishable from any other variety of the same species.
Uniform
Plants of a variety look similar and are sufficiently uniform in relevant characteristics.
Stable
Plants of a particular variety look like the original plants after repeated cultivation.
Did you know? A breeder that exercises his/her PBR must also give the variety an acceptable “denomination”. This becomes its generic name and must be used by anyone who markets the variety. |
How long are plant breeders’ rights valid for?
Depending on the kind of plant, a plant breeder’s right is valid for a period of 20 or 25 years.
What plants do plant breeders' rights apply to?
Plant breeders’ rights can only be granted to varieties of kinds of plants that are recognised by the Plant Breeders’ Act. Currently, there are about 250 kinds of plants on the list, which is available on request from the Registrar.
If a certain plant does not appear on this list, the applicant must submit a written request to the Registrar for Plant Breeders’ Rights.
5. Applications for Plant Breeders' Rights and/or Variety Listing
Who can apply for PBR?
Any individual breeder or breeding institution may apply for plant breeders’ rights and/or variety listing.
What about foreign breeders?
Foreign breeders may only apply through an agent residing in South Africa, like RegenZ.
Plant breeders’ rights are only valid in the country in which they were initially granted. However, plant breeders’ rights can be granted to a variety in more than one country. Because South Africa has a plant breeders’ rights system, foreign owners of varieties are more likely to supply propagating material.
What does the plant variety rights application include?
- Completed application form
- Technical Questionnaire
- Botanical and common names
- Prescribed application and examination fees
- Prescribed quantity of seed or propagating material
- Written authorisation from the owner if the variety has not been bred, selected or developed by the applicant
Other tips:
- Indicate on the technical questionnaire with which other known varieties the new variety should be compared (to ascertain whether the new variety is distinctly different)
- Documents and propagating material must be submitted to the Registrar on the prescribed dates
- Details of dates, fees, submissions and propagating material are available on request from the Registrar
- It is beneficial to submit a variety list, if applicable
How long does an application take?
The various crop types have different test conditions. The duration of a test can vary from a few days to a few weeks, or even longer.
Provisional protection
Provisional protection is recommended for situations in which tests take more than a year to be completed.
An applicant may apply to the Registrar of Plant Breeders’ Rights for provisional protection of a variety. This means that the variety will be protected for the duration of the evaluation period. However, the applicant will not be allowed to sell any propagating material of the variety until all relevant tests have been completed and plant breeders’ rights have been awarded.
How much does an application cost?
R2721
6. PBR in the News
7. Help with Plant Variety Protection
At RegenZ, we foster long-term partnerships with leading plant breeders from around the world, helping to maximise the potential of their varieties in Southern Africa.
We offer a comprehensive service, including:
Representation
We ensure that our clients’ breeds are represented to the highest standards in Southern African markets.
Growing
We work closely with Southern Africa’s finest seed growers to uphold the highest quality standards.
Commercialising
We actively provide market development and marketing to ensure healthy demand for the new varieties we introduce.