The Department of Agriculture, Forestry and Fisheries (DAFF) has added provisions in the draft Plant Breeders’ Rights Amendment Bill to make the infringement of plant breeders’ intellectual property (IP) rights a criminal offence, says specialist IP law firm Spoor & Fisher patent attorney David Cochrane.
He says this followed a request by plant breeder rights holders to discourage the infringement of their IP rights.
“Although attorneys are of course in favour of the enforcement of IP rights, Spoor & Fisher is against the criminalisation of the infringement of plant breeders’ rights, as these can be enforced by plant owners without the need to have them criminalised,” states Cochrane.
The Patents Act of 1978 states that new varieties of plants produced by biological processes, either by cross breeding or natural processes, cannot be protected by a patent.
Such new varieties can, how- ever, be protected by a plant breeder’s right in terms of the South African Plant Breeders’ Rights Act of 1976, which is administered by the DAFF and which will be replaced by the Plant Breeders’ Rights Amendment Bill, if approved, he explains.
The breeder of a new variety may apply for a plant breeder’s right. The breeder is the person who bred or discovered and developed the variety, the employer of such a person or the successor in title of such a person.
To qualify for protection, the plant variety must be new, which means it must not have been sold or disposed of by, or with the consent of, the breeder for purposes of exploiting the variety in South Africa for more than one year.
In the case of a convention country or an agreement country, as well as varieties of vines and trees, the period extends to more than six years. For other plant varieties, the period is four years.
The plant, for which protection is sought, must also be clearly dis- tinguishable from any other varieties of the same kind of plant of which the existence is common knowledge, says Cochrane.
In addition, the plant should be classified as uniform with regard to the characteristics of the variety in question, subject to the variation that may be expected from the particular features of its propagation.
Lastly, the plant must be stable, which means the characteristics of the variety must remain unchanged after repeated propagation or, in the case of a particular cycle of propagation, at the end of such a cycle.
An application for a plant breeder’s right is submitted with the proof of right, that is, a completed technical questionnaire and plant material, to the DAFF.
“The technical questionnaire provides a detailed description of the new characteristics of the variety,” Cochrane states.
The DAFF examines the application and plant material, after which the right is granted if the department is satisfied that the plant variety complies with the requirements of the Plant Breeders’ Rights Act.
After a plant breeder’s right has been granted, the plant material, which is sold for the pur- poses of propagation, must indicate the denomination of the variety on a label that should be attached to the plant or to the container in which it is packed.
If a trademark is used in conjunction with the denomination, the trademark and denomination must be clearly distinguishable, he emphasises.
Meanwhile, Spoor & Fisher adds that, in the draft Bill, authorities are trying to decide how to amend the provisions of the Plant Breeders’ Rights Act, which relates to farmers’ privilege.
“In terms of the current provisions, a person who obtained any propagating material of a variety in a legitimate manner will not infringe the plant breeder’s right if he or she is a farmer who uses harvested material on land occupied by him or her,” Cochrane explains.
However, any person other than that farmer may not use replanted propagating material for the purposes of propagation.
“These provisions are in the Act to protect subsistence farmers and allow them to retain seed from a harvest without being forced to buy new seed every year,” Cochrane points out.
The provision is, however, being abused by large commercial farming operations, espe- cially in respect of crops that can be vegetatively propagated, such as potatoes, he warns.