New Plant Varieties
– Plant Breeders’ Rights Act No. 15 of 1976, as amended by the Plant Breeders’ Rights Amendment Acts No. 5 of 1980, No. 14 of 1981, No. 38 of 1983, and No. 15 of 1996.
– Regulations Relating to Plant Breeders’ Rights, 1997.
Membership in International Conventions
– International Convention for the Protection of New Varieties of Plants (UPOV), since November 6, 1977, Act of 1978 since November 8, 1981.
– Bilateral Agreements are in force with Zimbabwe.
Applicant: the breeder, the employer of the breeder or a successor in title to either of the aforegoing.
Foreign applicants: must appoint a local agent.
Kinds of plants: rights can only be obtained for new varieties of plants on a limited list which is added to from time to time.
Novelty: a variety is not new if the propagating material or harvested material thereof has been sold or otherwise disposed of by, or with the consent of, the breeder for the purposes of exploitation of the variety in South Africa for more than one year or elsewhere, in the case of trees and vines for more than six years, and in the case of any other plant for more than four years; in addition, the variety must be clearly distinguishable from any variety of the same kind of plant the existence of which is common knowledge; sufficiently uniform having regard to the particular features of the reproduction thereof; and stable i.e. the characteristics thereof must remain unchanged after repeated propagation or, in the case of a particular cycle of propagation, at the end of such cycle.
Filing requirements for an application (to be sent to resident agent):
1. An unlegalized power of attorney;
2. An application form, which may be signed by an agent;
3. A form proposing a denomination of the variety;
4. A form claiming priority and a certified copy of the priority document, if applicable;
5. A technical description on a form provided for each kind of plant, accompanied by photographs in some cases;
6. The application fee and examination fee;
7. Plant material for testing to be supplied within twelve months of filing. It is necessary to provide a phyto-sanitary certificate and obtain an import permit if material is to be imported into South Africa.
Examination procedure: the application is first examined to determine whether it is in compliance with the law. An applicant gets an opportunity to make amendments, if necessary. The application is then advertised. Thereafter, once the applicant has paid the examination fee and has provided growing specimens or other material, the Registrar conducts growing tests.
Provisional protection: after advertisement and at the request of the applicant, the Registrar may issue a protective direction. At this stage infringement actions may be instituted, but during the period of provisional protection the applicant cannot commercialize the variety, but may multiply the variety or test it.
Opposition: within six months from the advertisement of an application, third parties may oppose grant of the right. The Registrar hears objections.
At the end of his investigations, the Registrar either grants or refuses the application and the grant or refusal to grant is published in the Government Gazette.
Appeal: decisions of the Registrar are subject to an appeal to a special appeal tribunal. No further appeals are allowed.
Duration: in the case of vines and trees, twenty-five years and in all other cases, twenty years from date of certificate of registration.
Renewal: renewal fees are payable annually by the 31st of January each year and the amount differs for different kinds of plants.
Effect: prior authority must be obtained by way of a license to produce, reproduce, condition for the purpose of propagation, sell, market, stock, import into or export from South Africa propagating material or harvested material of the relevant protected variety.
Refusal of protection: in cases of (a) reselling protected material obtained in a legitimate manner for purposes other than further propagation or multiplication thereof, (b) using protected material in the development of a different variety, (c) using protected material for bona fide research, (d) using protected material for private or non-commercial purposes, (e) a farmer may, on land occupied by him or her, use harvested material obtained on that land from protected material for the purposes of further propagation on that land.
Compulsory licenses: may be granted by the Registrar.
Voluntary licenses: must be recorded in writing and the Registrar must be notified of all voluntary licenses within thirty days of the grant of any license.
Assignments: the Registrar must be notified of the transfer within thirty days.
Denomination: the denomination of a variety and trademark under which the material is sold must be clearly distinguishable. When propagating material is sold, it must be marked with the denomination.
New 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 which is compiled in terms of the 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. An application, in terms of the Plant Improvement Act, if required, may be filed at the same time as the application for a Plant Breeders’ Right, but on a separate application form.
Only persons who have been recognized by the Registrar may act as agents. Most patent agents and patent attorneys have been so recognized.