New Plant Varieties
– Intellectual Property Act, 2011.
Membership in International Conventions
– Samoa is not a member of the International Convention for the Protection of New Varieties of Plants (UPOV), but citizens of UPOV member countries enjoy within Samoa the same rights as Samoan citizens.
Applicant: the breeder, their employer or successor in title.
Foreigners: members of UPOV countries have the same rights as Samoan citizens; must be represented by a legal practitioner resident and practicing in Samoa.
Kinds of plants: any variety of plant and includes a fungus, but not varieties that are contrary to public order or morality or are likely to cause serious environmental harm.
Criteria for grant of rights: new plant variety must be new, distinct, uniform and stable.
Novelty: a variety is new if, at the date of the application, propagating or harvesting material has not been sold or disposed of by or with the consent of the breeder for purposes of exploitation (a) in Samoa earlier than one year before the filling date; and (b) in a territory other than Samoa earlier than four years for trees or for vines earlier than six years before the filing date.
Filing requirements for an application (to be sent to resident agent):
1. The applicant’s name, address and nationality and details of any agents used by the applicant;
2. Information concerning the origins of the plant and the full name of the breeder and the applicant’s right if not the breeder;
3. A request for the grant of the plant breeder’s right;
4. A description of the new variety including the name which is clear and complete enough for the new variety to be recognized;
5. A sample of the new variety and, if the Registrar requires, including reproductive material necessary for reproduction of the plant;
6. A statement whether or not the variety is based on a knowledge available within a local or indigenous community from Samoa or elsewhere;
7. A written authorization of agent;
8. Prescribed fee.
Amendment of application: the Registrar may permit the amendment of an application.
Examination: as to formalities and adequacy of description. The Registrar may grow or test the variety or take into account growing or tests or other trials already carried out. The Registrar may require the breeder to provide other information as considered necessary.
Acceptance of application: if the Registrar is satisfied that the formalities are met, the Registrar must register the variety and issue a certificate of registration.
Publication: after the Registrar is satisfied that the plant is a new variety and the applicant has entitlement, details are published by notice in the Savali (Samoan Government Gazette).
Granting and Protection
Granting: once the Registrar is of the opinion that the application complies with formalities and criteria for grant i.e. newness, etc.
Duration: twenty years from the date when the application was accepted.
Extension of term: owners may apply for a five-year extension if they can show that, for reasons beyond the applicant’s control they have not been adequately remunerated by the grant.
Renewal fees: not payable except for extension of term cases. Infringement: sale, offer for sale or producing or conditioning plants for sale, stocking for the foregoing, exporting or importing. Acts done privately for non-commercial or experimental purposes are not an infringement.
Compulsory license: the Minister may decide that, even without the consent of the owner, a government agency or a third person designated by the Minister may exploit the variety if the public interest so requires, and subject to payment to the owner.
Assignment: must be in writing and must be recorded.
Revocation: rights can be revoked if there is evidence that the plant was not a new variety or was ineligible at the time of grant, if fees have not been paid, if the grantee has not complied with any condition of grant, or has failed to supply information necessary to verify the maintenance of the variety.
Appeals: on decisions to the Supreme Court.