Plant Breeder’s Rights

Plants Protectable under the Act

In order to be registrable, a plant must be prescribed, i.e. named in the list of “kinds of plant” which is set out in Table 1 of the Regulations under the Act. This list is varied from time to time, and a full list can be supplied upon request.

Effect of Plant Breeders’ Rights

Rights of holders

The holder of Plant Breeders’ Right has the sole right to produce, sell, import, export, etc. the propagating or harvested material in South Africa. Should any party wish to undertake the production or reproduction, conditioning for the purpose of propagation, sale or any other form of marketing, importing, exporting, or stocking for any of these purposes of propagating material or harvested material, this person must obtain authority by way of a licence from the holder of the Plant breeders’ rights. 

Duration

Plant Breeders’ Rights are granted for 25 years for vines and trees, and for 20 years for all other cases calculated from the date on which a certificate of registration is issued.

Annual fees

In order to keep a Plant Breeders’ Right in force, it is necessary to pay annual fees. The first annual fee is payable by January 1 of the year following the date of grant. Subsequent annual fees are payable by January 1 of each successive year for the duration of the right.

Marking

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

Requirements for varieties to be new, distinct, uniform and stable

Requirements for varieties to be new, distinct, uniform and stable must be complied with to obtain protection. A variety is distinct if, at the date of filing of the application for a plant breeder’s right, it is clearly distinguishable from any other variety of the same kind of plant of which the existence on that date is a matter of common knowledge. A variety is uniform if, subject to the variation that may be expected from the particular features of the propagation thereof, it is sufficiently uniform with regard to the characteristics of the variety in question. A variety is stable if the characteristics thereof remain unchanged after repeated propagation or, in the case of a particular cycle of propagation, at the end of each such cycle. 

Requirements for filing

In order to file an application for Plant Breeders’ Rights, we require :

  • full particulars of the applicant and breeder or breeders, including names, addresses and nationalities;
  • if the breeder or breeders is or are not the applicant, the manner in which the applicant obtained rights to file the application. Documentary proof, e.g. a deed of assignment, is required;
  • the proposed denomination, which must comply with Section 10 of the Act; the country in which the variety was bred or discovered;
  • particulars of preceding applications in other countries for Plant Breeders’ Rights or for inclusion in official variety lists in respect of the same plant, including dates of filing, application numbers, stages of prosecution, and dates of allowance and denominations used;
  • if propagating material and/or harvested material of the variety has already been offered for sale or has been marketed, details of the countries in which, dates on which, and denominations under which, this took place;
  • a completed technical questionnaire. We can obtain a suitable questionnaire from the Registrar, although generally, technical questionnaires used in other UPOV Convention countries, will be acceptable;
  • a power of attorney, executed by or on behalf of the applicant; and; propagating material as prescribed, typically 5 specimen plants, for examination purposes.
  • All requirements, including the propagating material, must be supplied to the Registrar within 12 months of the filing of the application. However, this period is extendible upon application to the Registrar. 

Filing and Prosecuting of Application

In addition to the requirements set out in 4.1, the application must be accompanied by Schedule A (“Application for Plant Breeders’ Rights”) and Schedule B (“Proposed Denomination”) forms. We normally prepare and execute these forms. The application must also be accompanied by the prescribed filing and examination fees.

After filing an application for Plant Breeders’ Rights, a formal examination of the application is conducted by the Registrar. If the application is formally in order, the application is published in the Government Gazette by the Registrar. Any person may, within a period of six months from such publication, object to the grant of Plant Breeders’ Rights. The Registrar thereafter submits the propagating material of variety to tests and trials. If the Registrar does not have the facilities for testing the plant in question, he is empowered to submit it to an appropriate authority, either locally or abroad;

The application will remain pending for a period of the order of one to three years until the conclusion of the examination by the Registrar, whereafter, if the results of the examination are satisfactory, Plant Breeders’ Rights will be granted and a registration certificate issued.

 Priority Rights

Priority rights can be claimed from a previous application in a country which has subscribed to the UPOV Convention provided that the South African application is filed within 12 months of the date of deposition in the Convention Country. A certified copy of the previous application must be filed within 3 months of the date of filing the South African application.

Conversely, an application in another country can claim convention priority from a basic South African application if the country is a Convention Country, and provided the foreign application is filed within one year of the basic South African application.