1. PLANT BREEDERS’ RIGHTS BILL
Department of Agriculture, Forestry and Fisheries
Select Committee on Land and Mineral Resources
24 January 2017

2. CONTENT Acronyms Background The need for Plant Variety Protection
National Legislation
International context
Overview of the PBR System
Conditions of protection
Scope of a plant breeder’s right
Exceptions to the scope of a plant breeder’s right
Major shortcomings in current legislation
Development of the PBR Bill
Overview of the Plant Breeders’ Rights Bill
Implementation

3. ACRONYMS DUS PBR UPOV Distinctness, Uniformity, Stability
Plant Breeders’ Rights
UPOV
International Convention for the Protection of New Varieties of Plants

4. BACKGROUND People breed new plant varieties for various reasons, e.g:
higher yields
better product quality
better resistance to plant pests and disease, etc.
A plant breeder’s right (PBR):
is a form of intellectual property right;
granted to breeders of newly bred plant varieties
Nectarine - NALEDI
Nectarine - SPLENDOR

5. EXAMPLES OF POTATO VARIETIES
FIANNA This Dutch bred potato was introduced into the SA market as a specialty fry variety, until it was discovered by chefs who today refer to it as the ‘Chef’s preferred variety’ due to its versatility. It has a floury white flesh, smooth cream skin and longish oval shape with very few shallow eyes. It is perfect for home fries due to the fact that it does not absorb a lot of oil / fat.
Ideally used for: French Fries, mashing, roasting
LADY ROSETTA The Lady Rosetta potato is a Dutch bred variety which is extensively used by the crisping market. This potato is a very tasty option when looking for a baker. Lady Rosetta is an odd shaped potato and has a red skin. It has prominent eyes and a dark yellow floury flesh. This potato was recently nominated as one of the tastiest potatoes in Europe. Ideally used for: Mash & Bake
MARIMBA This is a high yielding table variety with very good resistance to Common Scab. This variety is especially bred for the South African climate and market. It has a fairly short growing period of around 85 days from emergence to maturity. Tubers are oval to long with cream colored flesh. The texture of tubers are of the firm cooking type. Ideally used for: Boil and Roast 

6. THE NEED FOR PLANT VARIETY PROTECTION
Plant varieties are important for sustainable agricultural production:
Consequences of the absence of Plant Variety Protection:
Breeders reluctant to release plant varieties
Negative impact on farmer competitiveness
Economic benefits of new plant varieties:
New plant varieties contributes to increased agricultural productivity:
Higher yields
Better product quality
Impact: address the higher demand for food due to increased population numbers higher value products with increased marketability
better processing properties
Support publicly-funded research (Royalties can serve as a source of income)

7. THE NEED FOR PLANT VARIETY PROTECTION
Environmental benefits of new plant varieties
increased disease & pest resistance, drought tolerance
may limit agricultural environmental impact (varieties requiring lower inputs, water-efficient varieties)
minimizing harvesting of species from the wild (e.g. Proteaceae family)

8. NATIONAL LEGISLATION
In South Africa, plant breeders’ rights are protected under the Plant Breeders’ Rights Act, 1976 (Act No.15 of 1976).
The Act provides for:
the requirements for the grant
scope of protection of plant breeders’ rights;
the grant of licences;
other matters

9. INTERNATIONAL CONTEXT
UPOV was established by the International Convention for the Protection of New Varieties of Plants. The Convention was adopted in Paris in 1961 and it was revised in 1972, 1978 and 1991.
South Africa became the 10th member to join International Union for the Protection of New Varieties of Plants (UPOV) in November 1977.
South Africa is bound by UPOV 1978 Convention.
South Africa’s expertise in plant variety description well-recognised:
Chairmanship of two UPOV technical working parties
Lead experts in developing several UPOV Test Guidelines
Provide variety descriptions to UPOV members countries

10. OVERVIEW OF THE PBR SYSTEM
Application received & Assessed
Novelty/Variety denomination
Accepted
Applicant informed
Publication
Rejected
Information complete/
Applicable fees

11. OVERVIEW OF THE PBR SYSTEM (cont.)
Accepted applications
DUS Test & Trials
Approved
PBR granted
PBR certificate issued
Publication
Possible Objection
Not Approved
PBR refused
Applicant informed
Possible Appeal
Distinctness
Uniformity
Stability
Denomination
SECRET

12. CONDITIONS FOR PROTECTION: Distinctness

13. CONDITIONS FOR PROTECTION: Uniformity

14. CONDITIONS FOR PROTECTION: Stability
SECRET

15. OVERVIEW OF THE PBR SYSTEM (cont.)
Accepted applications
DUS Test & Trials
Approved
PBR granted
PBR certificate issued
Publication
Possible Objection
Not Approved
PBR refused
Applicant informed
Possible Appeal
Distinctness
Uniformity
Stability
Denomination
SECRET

16. SCOPE OF A PLANT BREEDER’S RIGHT
Section 7: Protection given to the holder of plant breeders’ right
(1) The protection given under this Act to the holder of a plant breeder's right is that prior authorisation has to be obtained for the duration of the plant breeder's right from that holder, by way of a licence granted or issued in terms of section 34 or section 35, by any person intending to undertake—
(a) the production or reproduction (multiplication) of the protected variety;
(b) the conditioning for the purposes of propagation of the protected variety;
(c) the sale or any other form of marketing of the protected variety;
(d) the exporting of the protected variety;
(e) the importing of the protected variety; or
the stocking of the protected variety for any of the purposes referred to in paragraphs (a) to (e).

17. Exceptions to the scope of a Plant Breeder’s Right
Breeding other varieties
Breeder’s exemption
Acts done for experimental purposed
Amateur gardeners
Acts done privately and for non-commercial purposes
Subsistence farmers
Farm saved seed
Farmers’ privilege

18. MAJOR SHORTCOMINGS IN CURRENT LEGISLATION
The current Act dates from 1976 and does not cater for recent developments
Ambiguous administrative procedures
Protection offered to limited number of genera
Current prescribed penalties are inadequate to deter deliberate infringements
Limiting Farmers’ privilege provision
Lack of advisory body for the registrar
Structure of the Act

19. DEVELOPMENT OF THE PBR BILL
took into account:
the principal legislation: The Plant Breeders’ Right Act, 1976 (Act 15)
experiences/ constraints in the implementation of the PBR Act
other relevant national legislation, policies, strategies & programmes
relevant international obligations
available options to protect intellectual property rights concerning plant varieties (patents, plant breeders’ rights)
recognized:
the importance of new plant varieties to support sustainable agricultural production
the important role of breeders in developing new plant varieties
the importance of an effective plant variety protection system
acknowledges:
the considerable investments needed to develop a new variety
the need to provide incentives for breeders of new plant varieties
the importance of balancing the needs of farmers and breeders 19

20. DEVELOPMENT OF THE PBR BILL
Plant Breeders’ Rights Draft Bill
Cabinet approval: publication (September 2011)
Government Gazette Publication (October 2011)
National Workshop (March 2012)
Pre-certification by State Law Advisers (March 2013)
National Workshop (May 2013)
Competition Commission (June 2014)
Economic Cluster (August 2014)
Economic Cabinet Committee (December 2014)
Certification (February 2015)
Adoption by Portfolio Committee on Agriculture, Forestry & Fisheries (November 2016)
Adoption by National Assembly (17 November 2016)

21. OVERVIEW OF THE PLANT BREEDERS’ RIGHTS BILL
Definitions
Chapter 1: Registrar and Register of Plant Breeders’ Rights
Section 2: Designation and functions of Registrar
Section 3: Exercise of discretionary powers by Registrar
Section 4: Register of plant breeders’ rights
Section 5: Register to be evidence
Section 6: Inspection of documents submitted in connection with an application for plant breeder’s right
Chapter 2: Plant Breeder’s Right
Section 7: Protection given to holder of plant breeder’s right
Section 9: Period of sole right
Section 10: Exceptions to plant breeder’s right
Section 11: Exhaustion of plant breeder’s right
Section 12: Joint holders of plant breeder’s right
Section 13: Transfer of plant breeder’s right
Section 14: State bound by plant breeder’s right

22. OVERVIEW OF THE PLANT BREEDERS’ RIGHTS BILL
Chapter 3: Application for plant breeder’s right
Section 15: Varieties in respect of which plant breeders’ rights may be granted
Section 16: Application for grant of plant breeder’s right
Section 17: Priority and redating of applications
Section 18: Provisional protection
Section 19: Rejection of application
Section 20: Acceptance and registration of application
Section 21: Amendment of application
Section 22: Objection to application for grant of plant breeder’s right

23. OVERVIEW OF THE PLANT BREEDERS’ RIGHTS BILL
Chapter 4: Variety Denominations
Section 23: Denomination of variety
Section 24: Amendment of denomination
Section 25: Marking of labels and containers
Chapter 5: Examination of variety and Grant of Plant Breeders’ Rights
Section 26: Test & Trials
Section 27: Refusal to grant plant breeder’s right
Section 28: Grant of plant breeder’s right

24. OVERVIEW OF THE PLANT BREEDERS’ RIGHTS BILL
Chapter 6: Hearing of objection
Section 29: Hearing of objection
Chapter 7: Obligations of holder of plant breeder’s right
Section 30: Payment of annual fees
Section 31: Maintenance of propagating material
Chapter 8: Enforcement of plant breeders’ rights
Section 32: Infringement of plant breeder’s right
Section 33: Remedies in respect of infringement of plant breeder’s right

25. OVERVIEW OF THE PLANT BREEDERS’ RIGHTS BILL
Chapter 9: Licences
Section 34: Licences
Section 35: Application for a compulsory licence
Section 36: Hearing of application for and issue of compulsory license
Chapter 10: Termination of plant breeder’s right
Section 37: Expiry of plant breeder’s right
Section 38: Cancellation of plant breeder’s right
Section 39: Voluntary surrender of plant breeder’s right
Chapter 11: Plant Variety Journal
Section 40: Matters to be published in Plant Variety Journal

26. OVERVIEW OF THE PLANT BREEDERS’ RIGHTS BILL
Chapter 12: Appeals
Section 41: Right to appeal
Section 42: Appeal board, composition and membership
Section 43: Investigation and consideration by the Board
Section 44: Consideration of appeal by Minister
Chapter 13: Advisory Committee
Section 45: Establishment of Advisory Committee
Section 46: Appointment of members of Advisory Committee and termination of membership
Section 47: Disclosure of interests of Advisory Committee
Section 48: Meetings of Advisory Committee

27. OVERVIEW OF THE PLANT BREEDERS’ RIGHTS BILL
Chapter 14: General Provisions
Section 49: Entering premises for inspection, sampling and seizure of articles
Section 50: Request for test results by authority of another country
Section 51: Defect in form not to invalidate documents
Section 52: Correction of errors
Section 53: Disclosure of information
Section 54: Regulations
Section 55: Offences and penalties
Section 56: Jurisdiction of magistrate’s courts
Section 57: Prohibition of trafficking by officers
Section 58: Delegation
Section 50: Transitional provisions and savings
Section 57::Repeal of amendments
Section 58: Short title and commencement

28. IMPLEMENTATION
National Authority to manage PBR system: in place, includes two evaluation farms situated at Roodeplaat and Stellenbosch.
Amendment of Regulations to give effect to the provisions (2017/18)
The appointment of an Advisory Committee will follow the process of calling for nominations and appointment by the Minister.
Awareness programme on the Plant Breeders’ Rights System

29. THANK YOU