In South Africa, new plant varieties are protected under the Plant Breeders’ Rights Act, No. 15 of 1976 (PBR Act), rather than by patents. Plant breeders’ rights grant the holder the exclusive right to produce, sell, import, export, or stockpile propagating material and harvested material of the protected variety. Authorization is required from the rights holder for any third party to undertake these activities, typically through a licence agreement.

Plant breeders’ rights endure for 25 years for vines and trees, and 20 years for all other varieties, starting from the date of grant.

South Africa is a member of the International Union for the Protection of New Varieties of Plants (UPOV), following the 1978 Convention.

What Plant Varieties Are Eligible?

Only plant varieties listed in Table 1 of the PBR Act Regulations can be protected. This list is updated periodically to include new plants, such as Cannabis L. (Hemp varieties), which were added in May 2022.

To be eligible, a plant variety must be:

• New: The propagating or harvested material must not have been sold or disposed of for exploitation more than one year prior to the application in South Africa, or more than six years (vines and trees) or four years (other plants) in a UPOV country.
• Distinct: It must be distinguishable from any other known plant varieties.
• Uniform and Stable: It must maintain consistent traits across generations.

The Application Process

An application for a plant breeder’s right must be submitted to the Registrar of Plant Breeders’ Rights. It includes:

• A technical questionnaire detailing the plant’s characteristics, distinguishing it from other varieties.
• Proof of payment for application and plant examination fees.
• Proof of assignment if the applicant is not the original breeder.
• A power of attorney if an agent is filing the application on the applicant’s behalf.

Within one year of filing, the applicant must also submit plant material for examination by the Department of Agriculture to evaluate the variety.

If a new variety falls under the Plant Improvement Act, No. 53 of 1976, an additional application for varietal listing must be filed along with the plant breeder’s rights application.

Remedies for Infringement

If a plant breeder’s right is infringed, the proprietor may seek:

• An interdict to stop the infringer.
• Delivery of infringing materials.

How We Can Help

At Wolmarans and Susan Inc., we offer comprehensive services for plant breeders’ rights, including:

• Preparation, filing, and prosecution of plant breeders’ rights and varietal listing applications.
• Advising on the importation of plant material for evaluation.
• Legal opinions on the validity and enforceability of plant breeders’ rights.
• Enforcement of plant breeders’ rights.
• Defending against infringement claims.
• Managing plant breeders’ rights portfolios.
• Assisting with the commercialization of plant breeders’ rights through licensing and other agreements.

Contact us today to secure and protect your new plant varieties.