PLANT BREEDERS’ RIGHTS POLICY
J.B. JAFTHA
(D: Genetic Resources)
N. NETNOU-NKOANA
(Registrar: Plant Breeders’ Rights Act, 1976)
INTRODUCTION
• World population continues to grow, arable land and other resources are becoming
scarce.
• Need for increasing food production:
 Improved yield
 Better resistance to plant pests and disease
• Plant breeding in Agriculture:
 Increases productivity and quality of plants
 Increases domestic food production
 Increases the marketability of crops in the global market
• Plant breeding is expensive and time-consuming
2
Overview of SA Plant Variety Protection
Plant Breeder’s Rights Act, 1976 (amended in 1996)
Dual testing system
Official Testing at Evaluation Testing Centres
Breeder’s trials (as prescribed)
Plant Variety Protection based on UPOV
SA bound to 1978 UPOV Convention
PLANT BREEDER’S RIGHT (PBR)
• A plant breeder’s right is a form of intellectual property right granted to breeders of newly bred
plant varieties.
• A plant breeder’s right therefore:
 provides the holder with a means of gaining financial remuneration for his efforts
 encourages breeders to continue with the breeding of new and better varieties
• Duration:
 25 years in the case of vines and trees
 20 years in all other cases
• Who can apply for a PBR?
 The person who bred a variety
 The employer of the person who bred the variety
 The successor in title
• Foreign applications can only be made through an agent residing in South Africa
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SCOPE OF A PLANT BREEDERS’ RIGHT
• The following acts in respect of a protected variety require prior authorization of the
breeder:
 production or reproduction (multiplication)
 conditioning for the purpose of propagation
 offering for sale
 selling or other form of marketing
 exporting
 importing
 stocking for any of the above purposes
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EXCEPTIONS TO THE PLANT BREEDERS’ RIGHT
• The plant breeder’s right does not extend to:
 acts done privately and for non-commercial purposes;
 acts done for experimental purposes;
 acts done for the purposes of breeding other varieties; or
 a farmer who on land occupied by him uses harvested material obtained on such land
from that propagating material for purposes of propagation. The harvested material
must not be used for purposes of propagation by any person other than that farmer
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SUBJECT MATTER FOR PROTECTION
•Botanical Classification
Family
Genus
• Poaceae (Grass family)
• Zea (Maize)
• Sorghum
• Zea mays (Grain maize)
Species
Bred
varieties
• Pan 6Q
• Phb 32, etc.
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ELIGIBILITY FOR PROTECTION
• Plant varieties, must be new, distinct, uniform, stable (DUS) and have an acceptable
denomination (variety name)
• A variety is considered:
• New: if the propagating or harvested material of a variety has not been sold or
otherwise been available:
 in South Africa for more than 1 year,
 any other country for more than 6 years in the case of trees and vines, or in the case
of any other plant, for more than 4 years
before the date of filing of the application for a plant breeder’s right.
• Distinct: if it is clearly distinguishable from any other variety of common knowledge;
• Uniform: if it sufficiently uniform in its relevant characteristics
• Stable: if the relevant characteristics of the variety remain unchanged after repeated
propagation.
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International Union for the Protection of New
Varieties of Plants (UPOV)
SA bound to 1978 Convention
Uniform standard of PVP
Technical Working Party
Focus on specific crops
sets descriptions standards/ test
guidelines
Guidelines over number of years
Impact of UPOV Membership
Countries:
 Argentina
 Kenya
 China
 Poland
 Korea

Increase in the number of
varieties
Access to improved
varieties (incl. foreign
varieties)
Increased domestic
breeding activities (private
& public)
Types of Breeders:
Farmer breeders
Public/ Private
partnerships
SA involvement in UPOV
Chairmanship of Technical Working Party on Fruit (2011)
SA lead experts:

Olives
Agapanthus
TEST GUIDELINESFOR THE CONDUCT OF TESTS
FOR DISTINCTNESS, UNIFORMITY AND STABILITY
TABLE OF CONTENTS PAGE:
1. SUBJECT OF THESE GUIDELINES
2. MATERIAL REQUIRED
3. METHOD OF EXAMINATION
4. ASSESSMENT OF DISTINCTNESS, UNIFORMITY AND STABILITY
5. GROUPING OF VARIETIES AND ORGANIZATION OF THE GROWING TRIAL
6. TABLE OF CHARACTERISTICS
7. EXPLANATIONS ON THE TABLE OF CHARACTERISTICS
8. LITERATURE
9. TECHNICAL QUESTIONNAIRE
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TEST GUIDELINES: Comparison of characteristics
Character 20: Inflorescence* length
Character 43: Fruit mucron#
#
*group or cluster of flowers arranged on a stem
short
medium
long
absent
present
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PROBLEM STATEMENT
 Farmer’s Rights
• Role in conservation & improvement of Plant Genetic Resources (PGR)
• Poor recognition of this contribution
• Relevant international instruments dictates resolution at national level
• Farmer’s varieties (landrace material) not DUS
• Poor protection of Traditional Knowledge
 Plant Variety Protection contributes to erosion of genetic diversity
• PVP encourages plant breeding
• Uniformity is requirement for granting of a PBR
• Increased reliance on commercial varieties
• Threat of disappearance of farmer’s varieties
PROBLEM STATEMENT
Exploitation and Biopiracy of Indigenous Resources
• Access to GR key for R&D and breeding
• Access via in or ex situ collection or communities
• Laws for access, PIC and benefit-sharing poorly implemented
• UPOV limits:
o additional conditions for PBR
o Compulsory sharing of benefits
PROBLEM STATEMENT
Skewed Ownership & Research Activities
• 70% foreign ownership of PBR
• Increased number of ornamentals PBR
• Limited focus on orphan crops
 Exclusive Rights
• Exclusive Rights = return on investment
• Contradicts social and economic seed & knowledge exchange system
PROBLEM STATEMENT
 Lack of awareness about the PBR Act & Infringements
•
Poor awareness contributes to “innocent” infringement
•
Infringement incl. unauthorised:

production & sale of the protected variety under its real/ different name

export to territories where there is no protection for the species in question.

production outside the protected area and unauthorised import into the
protected territory.

the use of farm-saved seed without paying the fees due to the breeder.
PROBLEM STATEMENT
 Limited number of protected genera & species
• Currently: limited genera
• Contradicts Art 27.3 B of TRIPS
Kinds of plants regulated by other legislation
• Narcotics plants
• Invasive plants
PROBLEM STATEMENT
PBR on wild plants
• Applications on plants from wild
• Discovery not a “creation of mind”
Filing of Applications
• Submission of required documentation prior expiration of novelty period
• Submission of plant material
PROBLEM STATEMENT
 Applications for GM Varieties
• Submission of varieties still under evaluation of the GMO Act, 1997.
 Variety Denominations (VD)
• VD important for identification of the variety globally
• Applicants submit breeders’ reference (BR)
• Request for change of BR
• Complicates publication and administrative fairness
PROBLEM STATEMENT
 Technical Requirements for granting PBR
• Human Resource Capacity:
o Limited trained staff members
o High mobility in Public Service (evaluation extends over at least two growth
seasons)
• Genetically Modified Varieties
o Distinctness at the genotypic level
• Lack of formal advisory support to Registrar
PROBLEM STATEMENT
 Maintenance of Plant Material after expiry of right
• During validity period, PBR holder must maintain material
• Maintenance has a financial implication (esp. fruit crops)
• Important material for DUS test
 Compulsory licensing
• Registrar may intervene in:
o Unreasonable refusal to grant a license
o Unreasonable conditions attached to license
o Where PBR holder does not satisfy reasonable public demands
• No guidance to Registrar
POLICY OPTIONS:
Broad philosophies
 Protect material interest of the
 Reward the inventor, but also
inventor
consider society’s welfare
• Broad range of exclusive rights
• Limited scope of protection
• Extended periods of protection
• Conditional Access and Use of
• Limits on mandatory licensing
• Narrow exceptions
protected material
Options for Plant Variety Protection in SA
Trade-Related Aspects of Intellectual Property Rights
Agreement (TRIPS)/ Patents
• SA a signatory
• Must provide for patent protection for inventions in all fields of technology
• MAY exclude patents on plant-related inventions
• Protect plant varieties through:
o Patent law
o Sui generis system
o Combination of both
• Patents Act, 1978 excludes the patentability of plants
Options for Plant Variety Protection in SA
Sui generis
• Def: “of its own kind”
• May include:
o Clear definition of what may be protected: Declared plants, New, DUS
o The scope of protection:
Sales, propagation, import, exports
o Duration of protection:
20-25 years
Recommended Policy
POLICY INTERVENTIONS:
Institutional Matters
National Authority (NA): Registrar & Support personnel
Collaboration with independent national & international
experts, compliance to other legislation
 Material transferred to National Authority on terms of MTA
DUS testing by NA or breeders (according to guidelines)
Establishment of an Advisory Body
POLICY INTERVENTIONS
Farmer’s Rights
Exploitation and Biopiracy of Indigenous Resources
Genetic Erosion
Exclusive Rights
POLICY INTERVENTIONS:
Farmer’s Privilege (UPOV & PBR Act)
Use of protected varieties on own holding
National Programme on Conservation & Sustainable Use of PGRFA
Systematic collection, documentation and storage of landrace material
On-farm conservation
Indigenous Knowledge System Policy
Stimulate & Strengthen the contribution of IKS to social & economic development
Documentation of IKS
International Treaty on PGRFA
Parties must honor farmer’s rights at national level
Access & benefit-sharing for farmers
POLICY INTERVENTIONS:
Convention on Biological Diversity & Biodiversity Act, 2004
Management & Conservation of Global and SA’s biodiversity
National Sovereignty over biological resources
Management of bioprospecting: Access & Prior-Informed Consent (PIC)
Fair & Equitable benefit-sharing
Patents Act, 1978 [s25 4(b)] & TRIPS:
No patenting of living organisms
Sui generis system for PVP
Patents Amendment Act, 2005 [s30]:
Disclosure of the origin & use of indigenous genetic resources and IKS
POLICY INTERVENTIONS:
Plant Breeders’ Rights Act, 1976 (as amended in 1996)
Relevant administrative procedures
Set periods for exclusive rights followed by compulsory licensing
Scope of the rights
Guidelines & Regulations on conditions for compulsory licensing (amendment Act)
Patents Act, 1978 [s25 4(b)] & TRIPS:
No patenting of living organisms
Sui generis system for PVP
Patents Amendment Act, 2005 [s30]:
Disclosure of the origin & use of indigenous genetic resources and IKS
POLICY INTERVENTIONS:
Skewed Ownership & Research Activities
Technical requirements for granting PVP
Infringements
POLICY INTERVENTIONS:
Promoting & Increasing Plant Breeding activities at public
institutions
• Publicly-owned PBRs allows government to set terms of protection, restrictions &
exemptions
• PBR source of income to stimulate further research investment
Human Resources development & Capacity Building
• Strengthening technical capacities for DUS testing
• Engaging relevant technical standard-setting bodies
• Support programme for new entrant plant breeders
POLICY INTERVENTIONS:
Infringements
• Enforcement is a private responsibility
• National Authority cooperate with relevant local & international stakeholders on matters
concerning enforcement.