Plant breeders' rights (PBRs), rights granted to the breeders of new varieties of plants, give them exclusive control over the propagating material – seeds, cuttings, divisions and tissue culture – and harvested material – such as cut flowers, fruit and foliage – of a new variety of plant for a number of years. However, David Cochrane, Partner at Spoor & Fisher and a specialist in plant breeders' rights, says that imminent amendments to legislation as well as globalisation are making it more important that plant breeders consult intellectual property experts when it comes to the protection of their rights.
"Precisely because plant breeding is such a long-term and expensive pursuit, ensuing that you secure your rights as a breeder is critical," he says. "Without PBRs, the breeder may not receive full return on investment. With these rights, the breeder can choose to become the exclusive marketer of the variety, or to license the variety to others."
Cochrane says the law in South Africa recognises that plant breeding is a costly and time-consuming process. It provides protection for new varieties developed by selection techniques by way of PBRs through legislation that is basically in line with guidelines set by the International Union for the Protection of New Varieties of Plants (UPOV).
How a variety of plant qualifies for protection
PBRs in South Africa are governed by the Plant Breeders' Rights Act which is administered by the Department of Agriculture. To qualify for protection, a variety of plant must be new, distinct, uniform and stable: The criteria are as follows:
- To be "new", propagating or harvested material of the variety must not have been sold by the breeder for purposes of exploitation of the variety in South Africa for more than one year; or any another country in the case of varieties of vines and trees, for more than six years; and in the case of other varieties for more than four years prior to the date of filing of the application for a Plant Breeders' Right.
- To be "distinct", the variety must be clearly distinguishable from any other variety of the same plant;
- To be "uniform", the variety must have similar characteristics to the variety in question, allowing for the variation that may be expected from the particular features of propagation;
- To be "stable", the characteristics of the variety must remain unchanged after repeated propagation or, in the case of a particular cycle of propagation, at the end of the cycle.
How PBRs are secured
"A PBR must be applied for by the breeder of a new variety," Cochrane explains. "The 'breeder' is the person who bred or discovered and developed the variety, or the employer of that person."
An application for a PBR is submitted with a completed technical questionnaire and proof of right to apply to the Department of Agriculture.
"The questionnaire provides a detailed description of the new characteristics of the variety," says Cochrane. "Plant material must also be submitted or be made available for testing. The department examines the application and if it is satisfied that the variety complies with the requirements of the Act and that the plant material is as described in the questionnaire, the right is granted. The examination of slow-growing plants such as trees may take a number of years."
Once granted, a PBR for a vine or a tree or vine lasts for 25 years. In all other cases the right lasts for 20 years. An annual renewal fee is payable before 31 January each year.
After a PBR has been granted, plant material which is sold for the purposes of propagation must indicate the denomination of the variety on an attached label, or on the container in which it is packed. If a trademark is used in conjunction with the denomination, the trademark and denomination must be clearly distinguishable.
The rights granted under a PBR also apply to varieties which are derived from the protected variety and which are not distinguishable from the protected variety, and which can only be produced by the repeated use of the protected variety. However, the rights granted under a PBR do not apply if the breeder has had reasonable opportunity to exercise their right regarding the propagating material of the protected variety.
Furthermore, anyone who procured propagating material in a legitimate manner does not infringe the plant breeder's rights under the following circumstances:
- If they re-sell the propagating material, sell any plant, reproductive material or product derived from the propagating material for the purposes other than further propagation or multiplication,
- Use or multiply the propagating material in the development of a different variety,
- Use the propagating material for purposes of research, or
- Use the propagating material for private or non-commercial purposes, or farm on land occupied by them and use harvested material from that propagating material for the purposes of propagation, provided that the harvested material obtained from the replanted propagating material is not used for the purposes of propagation by any other person other than that farmer.
"Because the laws are complex, it's best to seek advice from and expert before relying on these exceptions to protection," says Cochrane. "First, you must make sure that your actions fall within this exception. Second, you must check that rights to the variety are not also protected in some other way, for example by a patent or contract."
There are several benefits to calling on IP specialists. "IP law practitioners who specialise in PBRs will ensure that you submit the correct documents and that the application is followed up. Many South African plant breeders submit their own applications, but it really is critical to do it correctly, as time is of the essence," Cochrane notes. "Add to that the fact that court cases involving PBRs can be a nightmare for those involved and can put an end to your business. If the correct person does not apply, the application is not filed on time, , or the technical questions are not answered correctly, for example, the rights can be jeopardised.
"An IP lawyer has expertise to assist with the filing of the application and follow-up to grant, as well as support systems after grant to ensure that annual renewal fees are paid. Should litigation ever ensue, your attorney will be familiar with the legal proceedings for the enforcement of the right."
In addition to PBRs, Cochrane notes, farmers must also bear in mind the laws which are in place relating to the handling and production of seed and the registration of new commercially important varieties.
"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, compiled in terms of the South African 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 act can be made at the same time as an application for a PBR."
There is also a law on Genetically Modified Organisms (GMOs), which provides strict rules and requirement for permits, aimed at limit possible harmful consequences of GMOs to the environment. People who develop new varieties of plants using indigenous plants must ensure that they comply with the permit requirements under the South African National Environmental Management Biodiversity Act.
"Finally, it's important to reiterate that that the days of seeking protection in one country only are gone," Cochrane says. "Plant breeders need to secure rights throughout Africa and globally, as the rights granted in this country do not apply elsewhere. That's another reason for ensuring that you consult IP law experts which it comes to protecting your hard-earned creations."
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