PLANT BREEDERS’ RIGHTS BILL
Department of Agriculture, Forestry and Fisheries
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CONTENT
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Acronyms
Background
Plant Breeder’s Rights and the International context
Overview of the PBR System
The need for Plant Variety Protection
Development of the PBR Bill
Overview of Plant Breeders’ Rights Bill
Implementation
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ACRONYMS
DUS
Distinctness, Uniformity,
Stability
PBR
Plant Breeders’ Rights
UPOV
International Convention for
the Protection of New Varieties
of Plants
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BACKGROUND
 People breed new plant varieties for various reasons, e.g:
 higher yields
 better product quality
 better resistance to plant pests and disease, etc.
Nectarine - NALEDI
 A plant breeder’s right (PBR):
 is a form of intellectual property right;
 granted to breeders of newly bred plant varieties
Nectarine - SPLENDOR
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EXAMPLES OF POTATO VARIETIES
FIANNA
This Dutch bred potato was introduced into the SA market as a
specialty fry variety, until it was discovered by chefs who today refer
to it as the ‘Chef’s preferred variety’ due to its versatility. It has a
floury white flesh, smooth cream skin and longish oval shape with
very few shallow eyes. It is perfect for home fries due to the fact that
it does not absorb a lot of oil / fat.
Ideally used for: French Fries, mashing, roasting
LADY ROSETTA
The Lady Rosetta potato is a Dutch bred variety which is extensively used
by the crisping market. This potato is a very tasty option when looking for
a baker. Lady Rosetta is an odd shaped potato and has a red skin. It has
prominent eyes and a dark yellow floury flesh. This potato was recently
nominated as one of the tastiest potatoes in Europe.
Ideally used for: Mash & Bake
MARIMBA
This is a high yielding table variety with very good resistance to Common
Scab. This variety is especially bred for the South African climate and
market. It has a fairly short growing period of around 85 days from
emergence to maturity. Tubers are oval to long with cream colored flesh.
The texture of tubers are of the firm cooking type.
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Ideally used for: Boil and Roast
BACKGROUND
 In South Africa, plant breeders’ rights are protected under the Plant Breeders’
Rights Act, 1976 (Act No.15 of 1976).
 The Act provides for:
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the requirements for the grant
scope of protection of plant breeders’ rights;
the grant of licences;
other matters
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Plant Breeder’s Rights Bill and the international context
 UPOV was established by the International Convention for the Protection of New
Varieties of Plants. The Convention was adopted in Paris in 1961 and it was
revised in 1972, 1978 and 1991.
 South Africa became the 10th member to join International Union for the
Protection of New Varieties of Plants (UPOV) in November 1977.
 South Africa is bound by UPOV 1978 Convention.
 South Africa’s expertise in plant variety description well-recognised:
 Chairmanship of two UPOV technical working parties
 Lead experts in developing several UPOV Test Guidelines
 Provide variety descriptions to UPOV members countries
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THE NEED FOR PLANT VARIETY PROTECTION
 Plant varieties are important for sustainable agricultural production:
 Consequences of the absence of Plant Variety Protection:
 Breeders reluctant to release plant varieties
 Negative impact on farmer competitiveness
 Economic benefits of new plant varieties:
 New plant varieties contributes to increased agricultural productivity:
 Higher yields
 Better product quality
 Impact: address the higher demand for food due to increased
population numbers higher value products with increased
marketability
 better processing properties
 Support publicly-funded research (Royalties can serve as a source of income)
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THE NEED FOR PLANT VARIETY PROTECTION
 Environmental benefits of new plant varieties
 increased disease & pest resistance, drought tolerance
 may limit agricultural environmental impact (varieties requiring lower inputs,
water-efficient varieties)
 minimizing harvesting of species from the wild (e.g. Proteaceae family)
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DEVELOPMENT OF THE PBR BILL
 Plant Breeders’ Rights Draft Bill
 Cabinet approval: publication (September 2011)
 Government Gazette Publication (7 October 2011)
 National Workshop (1-2 March 2012)
 Provincial Workshops (August-October 2012)
 Eastern Cape
 Free State
 Limpopo
 Western Cape
 Pre-certification by State Law Advisers (March 2013)
 National Workshop (May 2013)
 Competition Commission (June 2014)
 Economic Cluster (August 2014)
 Economic Cabinet Committee (December 2014)
 Certification (February 2015)
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DEVELOPMENT OF THE PBR BILL
 took into account:
 the principal legislation: The Plant Breeders’ Right Act, 1976 (Act 15)
 experiences/ constraints in the implementation of the PBR Act
 other relevant national legislation, policies, strategies & programmes
 relevant international obligations
 available options to protect intellectual property rights concerning plant varieties
(patents, plant breeders’ rights)
 recognized:
 the importance of new plant varieties to support sustainable agricultural production
 the important role of breeders in developing new plant varieties
 the importance of an effective plant variety protection system
 acknowledges:
 the considerable investments needed to develop a new variety
 the need to provide incentives for breeders of new plant varieties
 the importance of balancing the needs of farmers and breeders
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OVERVIEW OF THE PLANT BREEDERS’ RIGHTS BILL
Section 1: Definitions
"breeder", in relation to a variety contemplated in section 15, means—
(a)
the person who bred, or discovered and developed, the variety;
(b)
the employer of the person contemplated in paragraph (a), if that person is an
employee whose duties are such that the variety was bred, or discovered and
developed, in the performance of those duties; or
(c)
the successor in title of the person contemplated in paragraph (a) or the
successor in title of the employer contemplated in paragraph (b);
 Breeder:
An individual
A farmer
Researcher
Public Institution
Private Company
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OVERVIEW OF THE PLANT BREEDERS’ RIGHTS BILL
 Chapter 1: Registrar and Register of Plant Breeders’ Rights
 Section 2: Designations and functions of Registrar
 Section 3: Exercise and discretionary powers by Registrar
 Section 4: Register of plant breeders’ rights
 Section 5: Register to be evidence
 Section 6: Inspection of documents submitted in connection with an application for
plant breeders’ right
(3) Notwithstanding subsections (1) and (2) but subject to subsection (4), a person may not—
(a)
inspect that part of the document in question that contains information in respect of the
name of each variety used in the breeding program and in respect of the manner in which
the variety was bred;
(b)
be furnished with a copy of the part of the document referred to in paragraph (a); or
(c)
inspect or be furnished with a copy of any other prescribed confidential
information
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OVERVIEW OF THE PLANT BREEDERS’ RIGHTS BILL
 Chapter 2: Plant Breeders’ Right
 Section 7: Protection given to the holder of plant breeders’ right
(1)
The protection given under this Act to the holder of a plant breeder's right is that
prior authorisation has to be obtained for the duration of the plant breeder's right from
that holder, by way of a licence granted or issued in terms of section 33 or section 35,
by any person intending to undertake—
(a)
the production or reproduction (multiplication) of the protected variety;
(b)
the conditioning for the purposes of propagation of the protected variety;
(c)
the sale or any other form of marketing of the protected variety;
(d)
the exporting of the protected variety;
(e)
the importing of the protected variety; or
(f)
the stocking of the protected variety for any of the purposes referred to in
paragraphs (a) to (e).
 Section 8: Duration of plant breeders’ right
 Section 9: Period of sole right
 Section 10: Exceptions to plant breeder’s right
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Exceptions to the scope of the Plant Breeder’s Right
Breeding other
varieties
Breeder’s exemption
Acts done for
experimental
purposed
Amateur gardeners
Acts done privately
and for noncommercial purposes
Subsistence farmers
Farm saved seed
Farmers’ privilege
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FARMERS’ PRIVILEGE
1977
• Farmers were allowed to
continue their tradition
of using a part of a year’s
harvest as seeds for the
next and also to exchange
seeds with their
neighbours
1996
• Farmers allowed to use
seed for propagating
purposes on their own
holding
• Prohibits any seed
exchange of protected
varieties among farmers
• Alleged abuse by
commercial farmers to
the detriment of some
industries e.g. wheat
2015
• 2(a) In respect of subsection
1(d),the Minister must prescribe
the—
• (i)
category or categories of
farmers who may use the
protected varieties;
• (ii)
category or categories of
plants that may be used;
• (iii)
uses to which the
protected variety may be put; and
• (iv)
where applicable, the—
• (aa) conditions for payment of
royalties; and
• (bb) labelling requirements.
• (b) When the Minister acts in
terms of paragraph (a), the
Minister must ensure that the
legitimate interests of the breeder
are safeguarded
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OVERVIEW OF THE PLANT BREEDERS’ RIGHTS BILL
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Chapter 2: Plant Breeders’ Right
Section 11: Exhaustion of plant breeder’s right
Section 12: Joint holders of plant breeder’s right
Section 13: Transfer of plant breeder’s right
State 14: State bound by plant breeder’s right
 Chapter 3: Varieties in respect of which plant breeders’ rights may be granted
(1)
A plant breeder's right may be granted in respect of any variety of all plant
genera and species, excluding fungi and algae, if it is new, distinct, uniform and stable
and has an acceptable variety denomination.
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OVERVIEW OF THE PBR SYSTEM
Application received & Assessed
Novelty/Variety denomination
Information complete/
Applicable fees
Accepted
Rejected
Applicant informed
Applicant informed
Publication
Publication
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OVERVIEW OF THE PBR SYSTEM (cont.)
Accepted applications
DUS Test & Trials
Distinctness
Uniformity
Stability
Possible Objection
Approved
Not Approved
PBR granted
PBR refused
PBR certificate issued
Applicant informed
Publication
Publication
Possible Appeal
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SECRET
OVERVIEW OF THE PBR SYSTEM (cont.)
Accepted applications
DUS Test & Trials
Distinctness
Uniformity
Stability
Possible Objection
Approved
Not Approved
PBR granted
PBR refused
PBR certificate issued
Applicant informed
Publication
Publication
Possible Appeal
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OVERVIEW OF THE PLANT BREEDERS’ RIGHTS BILL
 Chapter 3:
 Section 15: Varieties in respect of which plant breeders’ rights may be granted
 Section 16: Application for grant of plant breeder’s right
(6)
In the event that a variety may not be used without prior approval in terms of
other legislation, the application must be accompanied by the relevant permit or proof of
general release for the variety issued in terms of such legislation.
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Section 17: Priority and redating of applications
Section 18: Provisional protection
Section 19: Rejection of application
Section 20: Acceptance and registration of application
Section 21: Amendment of application
Section 22: Objection to application for grant of plant breeder’s right
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OVERVIEW OF THE PLANT BREEDERS’ RIGHTS BILL
 Chapter 4: Variety Denominations
 Section 23: Denomination of variety
 Section 24: Amendment of denomination
 Section 25: Marking of labels and containers
 Chapter 5: Examination of variety and Grant of Plant Breeders’ Rights
 Section 26: Test & Trials
(2)(a)
The applicant must furnish the Registrar within the prescribed period with such
material as may be prescribed.
(b)
The Registrar may grant an extension to the applicant from compliance with
paragraph (a) for a period not exceeding the initial prescribed period.
 Section 27: Refusal to grant plant breeder’s right
 Section 28: Grant of plant breeder’s right
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OVERVIEW OF THE PLANT BREEDERS’ RIGHTS BILL
 Chapter 6: Hearing of objection
 Section 29: Hearing of objection
 Chapter 7: Obligations of holder of plant breeder’s right
 Section 30: Payment of annual fees
 Section 31: Maintenance of propagating material
 Chapter 8: Enforcement of plant breeders’ rights
 Section 32: Infringement of plant breeder’s right
 Section 33: Remedies in respect of infringement of plant breeder’s right
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OVERVIEW OF THE PLANT BREEDERS’ RIGHTS BILL
 Chapter 9: Licences
 Section 34: Licences
 Section 35: Application for a compulsory licence
 Section 36: Hearing of application for and issue of compulsory license
(7) (a)
The Registrar must issue a compulsory license if it has been established that—
(i) the granting of a compulsory licence is in the public interest.
(i) the holder of the plant breeder's right is unreasonably refusing a license referred to in
section 34 or is imposing unreasonable conditions for the issue of such a license; and
(ii)the reasonable requirements of the public with regard to the variety in question are not
being satisfied or will not be satisfied as a result of such refusal or the imposition of
such conditions.
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OVERVIEW OF THE PLANT BREEDERS’ RIGHTS BILL
 Chapter 10: Termination of plant breeder’s right
 Section 37: Expiry of plant breeder’s right
 Section 38: Cancellation of plant breeder’s right
 Section 39: Voluntary surrender of plant breeder’s right
A variety in respect of which a plant breeder’s right has been cancelled under this
section vests, by operation of law, in the public domain and is not capable of
registration in accordance with this Act.
 Chapter 11: Enforcement of plant breeders’ rights
 Section 40: Appeal against decision or action of the breeder
 Chapter 12: Appeals
 Section 41: Appeal against the decision or action by Registrar
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OVERVIEW OF THE PLANT BREEDERS’ RIGHTS BILL
 Chapter 13: Advisory Committee
 Section 42: Establishment of Advisory Committee
 Section 43: Appointment of members of Advisory Committee and termination of
membership
(1) The Minister must appoint as members of the Advisory Committee—
(a) two persons who are appropriate persons to represent breeders of new plant varieties;
(b) two persons who are appropriate persons to represent farmers;
(c) one person who is an appropriate person to represent the interests of consumers of
new plant varieties or of the products of new plant varieties;
(d) one person to represent conservation interests in respect of new plant varieties and
the potential impacts of new plant varieties on the environment;
(e) one person to represent indigenous interests in respect of new plant varieties and
the source, use and impacts of new plant varieties; and
(f) one person with qualifications in respect, or experience of relevant fields, of law
including but not limited to Intellectual Property Law and Administrative Law.
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OVERVIEW OF THE PLANT BREEDERS’ RIGHTS BILL
 Chapter 13: Advisory Committee
 Section 44: Disclosure of interests by members of Advisory Committee
 Section 45: Meetings of Advisory Committee
 Chapter 14: General Provisions
 Section 46: Entering premises for inspection, sampling and seizure of articles
 Section 47: Request for test results by authority of another country
 Section 48: Defect in form not to invalidate documents
 Section 49: Correction of errors
 Section 50: Disclosure of information
 Section 51: Regulations
 Section 52: Offences and penalties
 Section 53: Jurisdiction of magistrate’s courts
 Section 54: Prohibition of trafficking by officers
 Section 55: Delegation
 Section 56: Transitional provisions and savings
 Section 57::Repeal of amendments
 Section 58: Short title and commencement
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IMPLEMENTATION
 National Authority to manage PBR system: in place, includes two evaluation farms
situated at Roodeplaat and Stellenbosch.
 Amendment of Regulations to give effect to the provisions (2015/16)
 The appointment of an Advisory Body will follow the process of calling for nominations
and appointment by the Minister.
 Awareness programme on the Plant Breeders’ Rights Act (to be developed by 2015/16)
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SOME STATISTICS: ONLY PROTECTED VARIETIES
Total
AGRICULTURAL CROPS
Domestic
ARC
Other
Foreign/multinational
Groundnut
6
6
0
0
Dry bean
38
13
12
13
Potato
91
17
0
74
Pumpkin
4
0
1
3
Sweet potato
21
21
0
0
Garden bean
33
0
17
16
Strawberry
28
0
0
28
Pear
25
13
1
11
Nectarine
113
37
11
65
Aloe
0
47
0
0
Calibrachoa
12
0
0
12
Roses
497
0
51
446
VEGETABLE CROPS
FRUIT CROPS
ORNAMENTAL CROPS
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More stats: Plant Breeders’ Rights vs Variety Listing
Crop
Total Listed in
Varietal List
With PBR
Without PBR
Oats
22
10
12
Soybean
73
55
18
Wheat
98
74
24
Maize
599
326
273
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ENKOSI
34