In terms of the Plant Breeders’ Rights Act 15 of 1976, protection may be obtained in respect of a new, distinct, uniform and stable variety of any prescribed kind of plant. These rights prevent others from propagating certain new varieties of plants developed by a plant breeder.
An application to register Plant Breeders’ Rights is made to the Department of Agriculture and must include:
Details of the applicant; a description, on the prescribed technical questionnaire, as to a typical plant of the variety concerned, and the procedure to be used for the maintenance and reproduction of the variety; colour illustrations on a metric scale of a typical plant variety showing characteristics of leaf, stalk and fruit or flower shape; an indication of the proposed denomination of the variety according to a set of rules laid down by an international union (UPOV) of which South Africa is a member; and details of corresponding foreign rights (priority rights can be claimed from a previous application in a country which has subscribed to the UPOV convention).
An application for registration is examined by the authorities and samples of the plant will generally be required for testing. The examination normally takes between three and five years.
Unless permission is obtained from the authorities, the variety may not be sold or commercially exploited in South Africa during the examination and until registration. Application can be made for provisional protection during the period the application is under examination. Provisional protection effectively allows the applicant the same protection as if a plant breeders’ right has been registered.
Generally, a variety will be deemed to be “new” if propagating or harvested material from it has not been sold or otherwise disposed of by the breeder:
In South Africa for more than one year; and in a country signatory to the Berne Convention for more than six years in respect of vines and trees, and four years in respect of all other varieties.
Duration of the right
Plant breeders’ rights begin on the date of grant of the right and extend for 25 years in respect of vines and trees and 20 years for all other varieties. An annual renewal fee must be paid every January after grant for the full term of the right. An extension of six months is available for late payment of the renewal fee.
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.