In May 2021, the Plant Variety Protection Act 2021 (the Act) was signed into law in Nigeria, and on 27 August 2021, UPOV reaffirmed Nigeria’s conformity with the 1991 Act of the UPOV Convention, allowing Nigeria to become a UPOV member.
The Act establishes a Plant Variety Registry which is to be housed within the National Agriculture Seed Council (NASC). Regulations are currently being finalised to give effect to the Act. We are waiting for further information as to when the Regulations have been put into effect, and NASC is operational and ready to receive plant variety applications. We are monitoring the situation and will keep you updated on developments.
Plant breeders who have already made sales or disposals of a variety in Nigeria are advised to monitor the developments closely, as the breeder of an existing variety of recent creation (where sale or disposal of a variety took place in Nigeria within four years before the filing date or, in the case of trees or of vines, within six years before the said date) may apply for plant breeders’ rights protection within 12 months of the date of commencement of the Act (i.e. by 21 May 2022).
In this note we will discuss some of the Act’s more important features:
The big picture
The explanatory Memorandum says that the objective is to ‘promote increased staple crop productivity for smallholder farmers in Nigeria and encourage investment in plant breeding and crop variety development.’
All things great and small
The Act provides for the protection of all plant genera and species.
Requirements for protection
The requirements for protection are the usual UPOV Requirements – new, distinct, uniform and stable.
New – the novelty requirement will be met if, at the date of filing, propagating or harvested material of the variety has not been sold or disposed of with the breeder’s consent in Nigeria earlier than one year before the date of filing, or four years elsewhere (six years in the case of a tree or vine). There are, however, a number of exceptions dealing with trials, disposals related to testing, unauthorized sales and displays at officially-recognized exhibitions. The word ‘breeder’ is defined as the person who bred or discovered and developed the variety, or the person who employed or commissioned that person, or the successor-in-title of such person.
Distinct – the term is defined to mean ‘clearly distinguishable from any other variety whose existence is a matter of common knowledge at the time of filing.’
Uniform – the term is defined to mean sufficiently uniform in its relevant characteristics, taking account of variation that may be expected from the particular features of the variety’s propagation.
Stable – the term is defined to mean that the relevant characteristics remain unchanged after repeated propagation or, in the case of a particular cycle of propagation, at the end of each such cycle.
The legislation sets out:
- An application process.
- The need for a denomination, which must be distinct and must not mislead or confuse.
- Priority rights of 12 months.
- Amendments to the application.
- Publication of the application.
- Objections to the application, with grounds being a lack of entitlement to file, a material misrepresentation, and failure to comply with the Act or Regulations.
- Examination of the application.
- Issue of a certificate.
Scope of the right
The breeder’s right covers:
- Conditioning for the purpose of propagation.
- Offering for sale, selling or marketing, exporting, importing or stocking for any of the above purposes
- Harvested material obtained through unauthorised use of propagating material, and products made directly from such harvested material.
- Essentially derived varieties (EDVs).
Excluded from the breeder’s right are:
- Private and non-commercial use.
- Acts for experimental purposes.
- Acts for the purpose of breeding any other variety.
Provision is also made for the so-called “Farmers Privilege”. For a list of agricultural crops specified by the Minister, the breeder’s right shall not extend to a farmer who, within reasonable limits and subject to the safeguarding of the legitimate interests of the holder of the breeder’s right, uses for propagating purposes on his own holding, the product of the harvest which he has obtained by planting on his own holding.
There are provisions relating to exhaustion of rights.
The right lasts for 20 years from the date of grant, except in the case of trees and vines where it is 25 years from date of grant.
There are civil and criminal measures relating to infringement.
Nullity and cancellation
A declaration of nullity can be issued if there is a failure to comply with the novelty and distinctness requirements. A registration can be cancelled if the requirements of uniformity and stability are no longer being fulfilled.
There is a right of appeal from a decision of the Registrar – this goes to the Minister responsible for agriculture.
There are offences relating to, inter alia, false entries in the register. Penalties take the form of fines and even prison terms.
The legislation brings Nigerian IP law further in line with international norms and it will benefit both Nigerians and international companies. It will result in Nigeria becoming a member of the International Union for the Protection of New Varieties of Plants (UPOV). It will attract new investment into the country’s seed industry. It is welcome development.
We are monitoring the situation and will provide an update on any further developments.
contact us for further information.