As commercial activity surrounding new plant varieties in Africa becomes more widespread, plant variety registration is critical for proper protection.
When a new variety of plant is produced by biological processes, or discovered to have developed naturally, it cannot be protected by a patent – so it must be protected by a plant breeders’ right.
At Spoor & Fisher we specialise in assisting businesses who need protection for new plants in Africa.
Our Plant Breeders’ Rights department is home to experts who prepare, file and prosecute plant breeders’ rights and variety listing applications. We also advise on the importation of plant material into South Africa for tests and trials; provide advice on the commercialisation of plant varieties, draft opinions and licence agreements; and handle enforcement and litigation.
We have sound long-standing relationships with the South African Department of Agriculture, and frequently comment on national legislation.
To provide the best possible advice to our clients, we closely monitor legislative and regulatory developments across Africa.
A number of African countries have introduced, or are introducing, plant breeders’ rights legislation in response to their obligations under the TRIPS agreement.
A Plant Breeders’ Right protects a new variety of plant that is produced by biological processes like cross-breeding, because these cannot be protected by a patent under the Patents Act.
A Plant Breeders’ Right must be applied for by the breeder of the new variety of plant. The “breeder” is generally the person who bred or discovered and developed the variety, the employer of this person, or their successor.
Most African countries are members of The International Union for the Protection of New Varieties of Plants (UPOV) Convention, and follow the UPOV validity requirements. Applicants are required to submit an application form, completed Technical Questionnaire, proof of right to apply and a power of attorney.
To qualify for protection, a variety of plant must be new, distinct, uniform and stable.
To be “new”, propagating or harvested material of the variety must not have been sold or disposed of by the breeder for purposes of exploitation of the variety:
in South Africa for more than one year;
in a convention country (one that has acceded to UPOV) or an agreement country (one with which South Africa has a bilateral agreement concerning plant breeders rights) in the case of varieties of vines and trees, for more than six years; or
in a convention country or an agreement country in the case of other varieties for more than four years, prior to the date of filing the application for a Plant Breeders’ Right.
To be “distinct”, the variety must be clearly distinguishable from any other variety of the same kind of plant of which there is common knowledge.
To be “uniform”, the variety must be sufficiently uniform with regard to the characteristics of the variety in question, subject to expected variation.
A Plant Breeders Right will be granted once the authorities are satisfied that the variety complies with the requirements for a Plant Breeders’ Right and that the plant material is as described in the Technical Questionnaire. The examination of slow-growing plants, such as trees, may take a number of years.
If you are interested in applying for a Plant Breeders’ Right, please contact us for more information.
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