Plant Breeders’ Rights in South Africa are governed by the Plant Breeders’ Rights Act No. 15 of 1976. As long as a plant variety meets the requirements specified in the Plant Breeder’s Rights Act, the breeder may apply for protection of its rights.
The requirements, broadly, are that the variety in question must be new, distinct, uniform and stable, and be a variety of a kind of plant that is recognised by the Act.
Only the “breeder” may apply for a plant breeders’ right. The term “breeder” includes the person who bred or discovered the variety, his successor in title, or the employer of that person if the person developed the variety in the scope of his employment.
Plant breeder’s rights are granted to the owner for a period of 20 or 25 years, depending on the kind of plant. For the first 5 to 8 years the holder of the right has the sole right to produce, market, export and import propagating material of the relevant variety (term of sole rights).
Once the term of sole rights has expired, the holder of the right must grant licences to persons who wish to use and market the material. If the holder of the right refuses to issue licenses, affected individuals may apply to the Registrar for a compulsory license.
The holder may claim royalties from all licensees for any propagating material produced and sold for the duration of the plant breeders’ rights. Once the full period of plant breeder's right has expired, the variety becomes public property, allowing anyone to propagate and sell it.
The intellectual property (IP) team at ENSafrica is able to provide expert advice and assistance with the registration and enforcement of plant breeders’ rights.