NB: The answers set out here are simplifications which are supplied for guidance only. It is advisable to consult a patent attorney before making any decisions relating to Plant Breeders’ Rights.
Only the breeder of a new plant variety can protect that new plant variety. In South Africa a breeder is defined as:
(a) the person who bred or discovered and developed the variety;
(b) the employer of an employee who bred, or discovered and developed the variety, if the employee did so in the scope of his/her employment; or
(c) the successor in title of parties identified in (a) and (b).
Plant Breeders’ Rights are only granted where the plant variety is (a) novel, (b) distinct, (c) uniform and (d) stable.
Novelty refers to the newness of the variety. Unlike in the case of patents, absolute novelty is not a requirement for Plant Breeders’ Rights; a variety is considered to be new if propagating material has not been made available in South Africa for longer than 1 year and also has not been available in other countries for more than 4 years (6 years for trees and vines).
A plant variety is distinct if some characteristics are clearly distinguishable from any other plant variety of the same kind of plant.
The plant variety should be sufficiently uniform with regard to its characteristics; all plants in a variety should look alike.
A plant variety is stable when the unique characteristics remain unchanged after repeated propagation.
Plant Breeders’ Rights protect the variety but not the standard breeding procedures that are used to develop the new variety.
A plant variety may be patented as well as protected by Plant Breeders’ Rights when a microbial vector is used to change the genetic composition of the plant, or alternative gene technologies were used during the development of the plant variety. The gene technology or gene sequence may be patented while the end product of the technology (new plant variety) may be protected by Plant Breeders’ Rights.
Generally, a plant breeder needs to file an application for Plant Breeders’ Rights with the authority of each Country of interest individually. However, the European Union operates a Plant Breeders’ Rights system which covers the territory of its 28 member States and the African Intellectual Property Organization (ARIPO) operates a Plant Breeders’ Rights system which covers the territory of its 17 member States. The contact details of the authorities responsible for the granting of Plant Breeders’ Rights are available at http://www.upov.int/members/en/pvp_offices.html.
It is not possible to protect all plant varieties in South Africa. In order for a plant variety to be eligible for protection, the relevant plant species or crop must appear in the list of plants as determined and varied by the South African Department of Agriculture, Forestry and Fisheries (DAFF).
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.
Breeders’ exemption is the right of a breeder to use protected varieties for breeding purposes and/or research purposes without authorisation.
Farmers’ privilege, also known as farmers’ exemption, refers to the right of farmers to re-sow seed harvested from protected varieties, on the same plot from which it was harvested, for their own use or sale.