Plant
Breeders Rights in South Africa
1.
Introduction
1.1
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.
2.
Effect of Plant Breeders' Rights
2.1
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.
2.2
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.
2.3
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.
2.4
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.
3.
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.
4.
Requirements for filing
4.1
In order to file an application for Plant Breeders' Rights, we require
:
4.1.1
full particulars of the applicant and breeder or breeders, including
names, addresses and nationalities;
4.1.2
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;
4.1.3
the proposed denomination, which must comply with Section
10 of the Act;
4.4.4
the country in which the variety was bred or discovered;
4.1.5
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;
4.1.6
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;
4.1.7
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;
4.1.8
a power of attorney, executed by or on behalf of the applicant;
and
4.1.9
propagating material as prescribed, typically 5 specimen plants,
for examination purposes.
4.2
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.
5.
Filing and Prosecuting of Application
5.1
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.
5.2
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.
5.3
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.
5.4
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.
6.
Costs
6.1
If we receive all the documents ready for filing, the costs of filing
an application for Plant Breeders' Rights will be in the region
of US$ 850 to US$ 950, including the filing fee and the examination
fee. The examination fee varies depending on the kind of plant.
An additional charge will be made for any additional work in preparing
documents for filing, completing forms, etc., dependent upon the
amount of work involved.
6.2
The costs of responding to any objections raised by the Registrar
will depend upon the amount of work involved.
6.3
Annual Fees cost in the region of US$ 90 to US$ 120, dependent again
upon the kind of plant.
7.
Priority Rights
7.1
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.
7.2
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.
7.3
The UPOV Convention Countries are (9 November 2004) :
Argentina
Australia
Austria
Azerbaijan
Belarus
Belgium
Bolivia
Brazil
Bulgaria
Canada
Chile
China
Columbia
Croatia
Czech
Republic
Denmark
Ecuador
Estonia
Finland
France
Germany
Hungary
Ireland
Israel
Italy
Japan
Jordan
Kenya
Kyrgyzstan
Latvia
Lithuania
Mexico
Netherlands
New Zealand
Nicaragua
Norway
Panama
Paraguay
Poland
Portugal
Republic of Korea
Republic of Moldova
Romania
Russian Federation
Singapore
Slovakia
Slovenia
South Africa
Spain
Sweden
Switzerland
Trinidad & Tobago
Tunisia
Ukraine
United Kingdom
Unites States of America
Uruguay
Uzbekistan
