Plant breeders

Novelty requirements

Generally, a variety will be deemed to be “novel” (new) if propagating or harvested material thereof has not been sold or otherwise disposed of by, or with the consent of, the breeder:

• In South Africa for more than one year before the date of filing the PBR application;
• or in any other country for more than six years in respect of vines and trees and four years in respect of all other varieties, before the date of filing of the PBR application.

PBR application procedure

An application to register a PBR in respect of a variety which meets the abovementioned requirements is made to the Department of Agriculture and must include:

1. A completed PBR application form indicating details of the applicant and the breeder(s). Written proof of the transfer of the variety from the breeder(s) to the applicant, if applicable, is also required;
2. A description as to a typical plant of the variety concerned, on the prescribed technical questionnaire, together with the procedure to be used for the maintenance and reproduction of the variety;
3. Colour illustrations on a metric scale of a typical plant of the variety concerned, showing characteristics of leaf, stalk and fruit or flower shape;
4. An indication of the proposed denomination of the variety according to a set of rules laid down by the International Union for the Protection of New Varieties of Plants (UPOV), of which South Africa is a member; and
5. Details of corresponding foreign rights (priority rights can be claimed from a previous application in a country which has subscribed to the UPOV convention).

Once filed, the application is examined by the authorities and samples of the plant will generally be required for testing. Examination normally takes between three and five years.

In terms of the PBR Act, an applicant enjoys provisional protection in respect of the variety in question from the filing date of the application until the granting or refusal thereof. The effect of provisional protection is that the applicant is entitled to equitable remuneration from any person who, during the period of provisional protection, carries out any act exclusive to the PBR holder that would, once the PBR is granted, require the authorisation of the holder of the PBR.

In South Africa, if the intention is to commercialise the protected variety, an application for a Variety Listing (VL) may also be required. This VL application process is similar to the PBR application process and, if applicable, should be applied for simultaneously.

Duration of the right

The duration of the right in respect of fruit, trees, vines, sugar cane and potatoes (as specified in the PBR Act Regulations) is 30 years from the date of grant and 25 years for all other varieties, subject to the payment of annual renewal fees, which are payable every January after grant, for the full duration of the right. An extension of six months is available for late payment of the renewal fee.

Costs

The cost of registration and prosecution will depend on the kind of plant, the amount of work required in preparing documents for filing and the cost of responding to any objections raised by the Registrar.

Our charges are very competitive and we encourage you to contact us so that we may provide you with an estimate of the costs involved.