The Minister of Agriculture, Forestry and Fisheries has, under Notice 688 of 2011 in the Government Gazette of 7 October 2011 invited interested parties to submit written comments on the draft Plant Breeders’ Rights Amendment Bill. If enacted, the Bill will replace the Plant Breeders’ Rights Act No. 15 of 1976, as amended.

The draft Bill introduces a number of significant changes which should mostly be welcomed.

Under the current Plant Breeders’ Rights Act, there is uncertainty as to what extent the documents submitted in connection with an application for a plant breeders’ right are open to public inspection. The draft Bill makes it clear that all application documents will be open to public inspection except those parts of the documents, in the case of hybrids, that contain information on the name of each parent variety used in the breeding programme and on the manner in which the variety was bred.

At present, plant breeders’ rights are granted for 25 years for vines and trees and 20 years in all other cases, calculated from the date on which the Certificate of Registration is issued. The draft Bill makes provision for terms of 20, 25 or 30 years, depending on the particular kind of plant. It is not yet clear to which kinds of plant a 30 year term will be granted.
Both the current Plant Breeders’ Rights Act and the draft Bill include a provision relating to so-called farmers’ rights, allowing a farmer to use, on land occupied by him or her, harvested material obtained on such land from a variety obtained in a legitimate manner for the purposes of propagation. The draft Bill however limits this right to crops other than vegetatively propagated crops.

The draft Bill provides more clarity in respect of the exhaustion of the rights of a plant breeder’s rights holder and appears to limit the doctrine of exhaustion of rights by, for example, prohibiting further propagation of a variety sold or otherwise marketed by the holder of the plant breeder’s right concerned, or with his or her written authorisation. The draft Bill also prohibits exportation of material of a protected variety to any country that does not protect varieties of the particular kind of plant, except where the exported material is for consumption purposes.

Notice 688 of 2011 indicates that it is the intention to extend plant breeders’ rights protection to all plant genera and species. It is, however, regrettable to note that the draft Bill excludes fungae and algae from plant breeders’ rights protection. It will thus not be possible to protect, for example, new mushroom varieties if the draft Bill in its current form is enacted.

It is to be welcomed that the draft Bill provides for certain exceptions to acts which would otherwise destroy the novelty of a variety for purposes of obtaining plant breeder’s rights protection. For example, plant material may in terms of the draft Bill be sold for the sole purpose of evaluating the variety in field tests, laboratory trials, small scale processing trials or other prescribed tests or trials, without the sale of the propagating material being viewed as exploitation of the variety and thus potentially novelty destroying.

It is heartening that the draft Bill provides more clarity on which documents must be submitted for purposes of a plant breeder’s rights application, and when such documents must be submitted. Under the current Plant Breeders’ Rights Act, this is a point of contention between applicants and the Department of Agriculture, Forestry and Fisheries.

As is the case under the current Plant Breeders’ Rights Act, the draft Bill provides for provisional protection of a new variety for which a plant breeder’s rights application has been filed. In terms of the draft Bill, the protection will be granted automatically, but only against a person who has been notified by the applicant of the filing of the plant breeder’s rights application. The draft Bill also makes no provision for withdrawal of a provisional protective direction by the Registrar of Plant Breeders’ Rights.

The Registrar at present insists on undertaking tests and trials in South Africa for varieties for which plant breeder’s rights applications have been filed, even though the current Plant Breeders’ Rights Act allows the Registrar to use the results of tests and trials obtained from an appropriate authority in a UPOV member country. Interestingly, the draft Bill states that the Registrar must use the results of tests and trials from another country, together with “such tests and trials as may be necessary”. It also appears that the draft Bill intends more strictly regulating any extensions which will be granted for providing plant material to the Registrar for purposes of the tests and trials. For example, it appears that an extension will only be granted upon proof that the plant material has already been imported into South Africa.

The draft Bill now makes provision for both pre- and post-grant objections to the granting of a plant breeder’s right. This is in contrast to the Plant Breeder’s Rights Act No. 15 of 1976, which only allows for pre-grant objection to the grant of a plant breeder’s right.

A welcome suggestion in the draft Bill is that plant breeders’ rights renewal fees must be paid by 31 March of each year and not by 1 January of each year. It appears that the Department of Agriculture, Forestry and Fisheries is mindful of the realities of the usual December festive season in South Africa.

Finally, the draft Bill intends establishing a Plant Breeders’ Rights Advisory Committee to advise the Registrar on technical matters arising from the provisions of the Act and any other matter relating to the administration of the Act referred to the Advisory Committee by the Registrar. This Advisory Committee will hopefully allow for parties involved in the breeding and commercialisation of plant varieties and the protection of such varieties to assist the Registrar in operating effectively under the new Act, once promulgated.

Written by Louis van der Walt, Vice Chair Patents Department, Adams & Adams