A plant breeder’s right is a form of intellectual property right granted to breeders of new plant varieties. Breeders of new plant varieties are granted plant breeders’ rights for protection of their varieties against exploitation without their permission.
If you breed a plant variety and would like to obtain financial reward for your efforts, you must register that variety with the Registrar for Plant Breeders' Rights. Once you have registered a plant variety, it becomes your intellectual property. Any individual breeder or breeding institution may apply for a plant breeder’s right. Foreign breeders can only apply through an agent residing in South Africa.
Plant breeders are only granted rights for kinds of plants that are declared in terms of the Plant Breeders’ Rights Act, 1976 (Act No. 15 of 1976). These are listed in Table 1 of the Regulations.
Requirements for the granting of Plant Breeders' Rights
To be granted plant breeder’s rights, plant varieties must be new, Distinct, Uniform, Stable (DUS) and have an acceptable denomination (variety name). A variety is considered:
- New if:
- The propagating material (seed or cutting from a plant) of a variety has not been sold in South Africa for longer than one year.
- The propagating material of a variety of a tree or of a vine has not been commercialised in another for more than six years, or in the case of any other plant for more than four years.
- Distinct if it is clearly distinguishable from any other variety of the same species.
- Uniform if the plants of a variety look similar and are sufficiently uniform in relevant characteristics.
- Stable if the plants of the particular variety, after repeated cultivation still look like the original plants.
Duration of a plant breeder’s right
Once your variety is approved, you will be issued with a plant breeder’s right certificate. Plant Breeders' Rights are valid for 25 years for vines and trees, and for 20 years for all annual varieties, calculated from the date on which a certificate of registration is issued.
Please note: As the holder of a plant breeder's right, you must protect your interests and ensure that the variety is not exploited illegally by any unauthorised person.
Provisional protection
You may apply to the Registrar of Plant Breeders' Rights for provisional protection of a variety until all tests are completed and you are granted plant breeders' rights. Provisional protection is recommended for crops where tests take more than one year to complete.
What are your obligations?
During the currency of your rights you must:
- maintain the variety and guarantee that the propagating material is always available.
- pay the prescribed annual fees.
If you fail to do this, the Registrar may cancel your plant breeder’s rights.