Plant Variety and Plant Breeders’ Rights (PBR) Registration was the title of a webinar hosted by UKZN InQubate in collaboration with Spoor and Fisher, a specialist intellectual property (IP) law firm established in 1920.
Facilitated by Principal Innovation Officer, Ms Nonkululeko Shongwe from InQubate, UKZN’s Technology Transfer Office (TTO), the webinar focused on the national and international legal requirements for PBR and was presented by Patent Attorney and Partner Mr David Cochrane from Spoor and Fisher.
With 24 years’ experience in domestic and international patent matters, including the preparation and prosecution of patent applications, Cochrane specialises in filing applications in the pharmaceutical, nuclear medicine, chemical, petrochemical, agrochemical, explosive, metallurgical and biochemical fields, as well as PBRs.
Cochrane began by explaining that Plant Breeders’ Rights aim to encourage the development of improved plant varieties for economic yields, drought resistance, and food security or simply to introduce new flowers. He said that South African plant breeders spend about R7 to R10 million to develop and bring a new cultivar to market.
Cochrane noted that the South African Patents Act No. 57 of 1978 is part of the TRIPS Agreement exceptions, which require member countries to provide for the protection of plant varieties either by patents or by an effective sui generis system or a combination thereof. However, ordinary plants produced through normal plant breeding techniques are not patentable while those that are genetically modified can be patented.
He added that, given that South Africa does not provide protection for plants by way of patents, the Plant Breeders Rights Act No. 15 of 1976 provides the required protection for normal breeding techniques, and South Africa is a signatory to the Union for the Protection of New Plant Varieties (UPOV) Convention.
‘Genetically modified plants can be protected in two ways in South Africa, namely, by way of patents, because they are patentable and also by way of PBR. If someone is working with genetically modified plants, it’s always a good idea to get protection both ways,’ he said.
Cochrane further elaborated that the basic requirements for plant breeders to obtain a PBR are: (1) To make sure that the plant is on the PBR list. If not, it is possible to request the Department of Agriculture to include it; (2) The person applying must have a right to apply. They must either be the breeder of the plant or a successor – a person or company who obtained the rights from the breeder; and (3) The plant must be new, distinct, uniform and stable.
For the latter requirement, it must be a new plant that has not been sold in South Africa for more than a year before applying, while for an application for another UPOV country – in the case of trees and vines – the duration must not exceed six years, and not more than four years for other varieties.
The procedure includes lodging the application with the Registrar of Plant Breeders Rights, an officer of the Department of Agriculture by submitting an application form, a technical questionnaire explaining what is distinct about the plant, proof of a right to apply, and payment of both the application and examination fees. He said it is important that the material for testing is supplied to the Department within a year of submitting the application.
Cochrane advised applicants to select a different name for the denomination and the trademark, because, once the PBR expires, other people will be able to sell your variety but they will not be able to use the trademark. In South Africa, the PBR lasts for 25 years for trees and vines and 20 years for other types of plants.
The South African PBR Act No. 12 of 2018 which is awaiting promulgation will introduce several changes which include a new advisory committee, while the prescribed list of plants will not be applicable, the duration of protection will range from 20, to 25 and 30 years, there will only be one extension of the Examination of Distinctness, Uniformity and Stability tests, different conditions will apply to different categories of farmers, and a fine or imprisonment of 10 years will be imposed for infringement of PBR.
Shongwe thanked Cochrane for sharing the information with the webinar participants. She advised those needing more information to submit their queries to the UKZN InQubate.
Words: Sithembile Shabangu