BY Dr. Joanne van Harmelen
South African blueberries and plant breeders’ rights
A recent news item, “Blueberry industry faces blues over trading rights row” (Cape Argus, 9 November 2020), shines a spotlight on an area of law that seldom makes the news. In fact, it’s an area of law that few people even know exists. We refer here to plant breeders’ rights (“PBRs”). PBRs are a form of legislatively protected intellectual property (“IP”) rights, requiring application to a statutory body for registration, along with patents, trade marks, and designs.
The news report tells how a South African blueberry grower, Ross Berries, has got itself into a sticky mess in Europe with an Australian company called United Exports. Two shipments of blueberries that Ross Berries sent from South Africa to the EU were confiscated at the Dutch port of Rotterdam. The basis for the seizure – the berries infringe the rights of United Exports.
Some stories are best told by the actual characters.
The Australian company: “Ross Berries…was attempting to export the fruit in flagrant disregard and abuse of the proprietary rights of United Exports, which holds the community plant variety rights in the OZblu blueberry plants and their fruit in the EU.”
The South African company: “Following the recent seizure of blueberries, we have … agreed to sell what remains of the blueberry harvest for this season to United Exports on their proposed terms and prices.. [we] wish to make clear, however, that [we] continue to dispute United’s claims regarding United’s rights in the so-called OzBlu blueberry varieties...these claims are without legal basis and merely form part of a broader effort by United to control the entire supply chain of these blueberry varieties in South Africa (and indeed internationally) and by implication fix the prices of the fruit.”
The South African trade association for berries, Berries ZA: “We trust the parties to the present dispute will follow due process and act in accordance with the law, recognising that their conduct affects the reputation of the entire South African industry.”
Shortly before finalising this article, we became aware of a further news report. According to this report, the two companies are in fact well acquainted, with the Australian company having farms in South Africa, and having previously entered into licensing arrangements for their blueberry varieties with the South African company. According to this latest report, the parties have now reached an agreement that allows for the release of the two shipments, so that the berries don’t go to waste. However, there will be arbitration proceedings between the parties relating to the dispute next year.
PBRs are known as community plant variety rights in the EU and they are administered by an authority known as the Community Plant Variety Office. PBRs also exist in Africa, in particular within the two regional IP registration systems OAPI and ARIPO. They also exist in certain countries that don’t belong to the regional systems. In South Africa, PBRs are dealt with in terms of the Plant Breeders Rights Act, 1976, although there is new legislation pending – the Plant Breeders’ Rights Act, 2018. PBR applications are submitted to the Registrar of PBRs in the Department of Agriculture, Land Reform and Rural Development.
So, what are PBRs all about? Why is there even such protection? It’s all to do with the fact that plant breeding is deemed to be important to a nation’s economy. As with inventions, plant breeding involves considerable time and expense. Yet, plant varieties produced using traditional methods of plant breeding are specifically excluded from patent protection, so specific legislation is required. On the international front, an international body, the Union for the Protection of New Varieties of Plants (“UPOV”) provides a framework for PBR legislation. South Africa was accepted as the tenth member of UPOV in 1977.
So, what does PBR legislation look like? The existing South African legislation is a good starting point (for the purposes of this brief introductory article, we will not be examining changes brought about by the pending legislation). The legislation does, inter alia, the following:
- It sets out the criteria for protection. These are that the variety must be new, distinct, uniform and stable.
- It sets out who the applicant for registration will be – the applicant is the breeder, the person who bred or discovered and developed the variety.
- It requires there to be a denomination for the variety, a name that is separate from any trade mark that may be used.
- It sets out a registration procedure: priority can be claimed from a foreign application; there is a publication process; an opposition procedure; an evaluation process; a possibility of provisional protection; and an application can be refused or granted.
- It sets out the term of protection – whether it’s a 25 or 20-year term, with 25 years applying to vines and trees.
- It sets out infringement procedures, providing exceptions covering research and farmers’ subsistence.
- It sets out a procedure for restoration.
- It sets out procedures for cancellation or revocation of registrations.
This article is intended as no more than a very brief introduction to PBR protection and it was prompted by the fact that PBRs have been in the news, in articles that may have left some people scratching their heads.
If you would like any advice on PBR protection please contact:
Dr Joanne van Harmelen
IP | Patent Attorney
+27 82 770 5396