PLANT BREEDERS’ RIGHTS POLICY

J.B. JAFTHA

(D: Genetic Resources)

N. NETNOU-NKOANA(Registrar: Plant Breeders’ Rights Act, 1976)

INTRODUCTION

• World population continues to grow, arable land and other resources are becoming scarce.

• Need for increasing food production: Improved yield Better resistance to plant pests and disease

• Plant breeding in Agriculture: Increases productivity and quality of plants Increases domestic food production Increases the marketability of crops in the global market

• Plant breeding is expensive and time-consuming

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Overview of SA Plant Variety Protection

Plant Breeder’s Rights Act, 1976 (amended in 1996)

Dual testing system

Official Testing at Evaluation Testing Centres

Breeder’s trials (as prescribed)

Plant Variety Protection based on UPOV

SA bound to 1978 UPOV Convention

PLANT BREEDER’S RIGHT (PBR)

• A plant breeder’s right is a form of intellectual property right granted to breeders of newly bred plant varieties.

• A plant breeder’s right therefore: provides the holder with a means of gaining financial remuneration for his efforts encourages breeders to continue with the breeding of new and better varieties

• Duration: 25 years in the case of vines and trees 20 years in all other cases

• Who can apply for a PBR? The person who bred a variety The employer of the person who bred the variety The successor in title

• Foreign applications can only be made through an agent residing in South Africa

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SCOPE OF A PLANT BREEDERS’ RIGHT

• The following acts in respect of a protected variety require prior authorization of the breeder:

production or reproduction (multiplication)

conditioning for the purpose of propagation

offering for sale

selling or other form of marketing

exporting

importing

stocking for any of the above purposes

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EXCEPTIONS TO THE PLANT BREEDERS’ RIGHT

• The plant breeder’s right does not extend to:

acts done privately and for non-commercial purposes;

acts done for experimental purposes;

acts done for the purposes of breeding other varieties; or

a farmer who on land occupied by him uses harvested material obtained on such land from that propagating material for purposes of propagation. The harvested material must not be used for purposes of propagation by any person other than that farmer

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SUBJECT MATTER FOR PROTECTION

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•Botanical Classification

ELIGIBILITY FOR PROTECTION

• Plant varieties, must be new, distinct, uniform, stable (DUS) and have an acceptable denomination (variety name)

• A variety is considered:

• New: if the propagating or harvested material of a variety has not been sold or otherwise been available: in South Africa for more than 1 year, any other country for more than 6 years in the case of trees and vines, or in the case

of any other plant, for more than 4 years

before the date of filing of the application for a plant breeder’s right.

• Distinct: if it is clearly distinguishable from any other variety of common knowledge;

• Uniform: if it sufficiently uniform in its relevant characteristics

• Stable: if the relevant characteristics of the variety remain unchanged after repeated propagation.

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International Union for the Protection of New Varieties of Plants (UPOV)

SA bound to 1978 ConventionUniform standard of PVPTechnical Working Party

Focus on specific cropssets descriptions standards/ test guidelinesGuidelines over number of years

Impact of UPOV Membership

Countries: Argentina Kenya China Poland Korea

Increase in the number of varieties

Access to improved varieties (incl. foreign varieties)

Increased domestic breeding activities (private & public)

Types of Breeders:

Farmer breeders

Public/ Private partnerships

SA involvement in UPOV

Chairmanship of Technical Working Party on Fruit (2011)SA lead experts:

Agapanthus

Olives

TEST GUIDELINESFOR THE CONDUCT OF TESTSFOR DISTINCTNESS, UNIFORMITY AND STABILITYTABLE OF CONTENTS PAGE:1. SUBJECT OF THESE GUIDELINES

2. MATERIAL REQUIRED

3. METHOD OF EXAMINATION

4. ASSESSMENT OF DISTINCTNESS, UNIFORMITY AND STABILITY

5. GROUPING OF VARIETIES AND ORGANIZATION OF THE GROWING TRIAL

6. TABLE OF CHARACTERISTICS

7. EXPLANATIONS ON THE TABLE OF CHARACTERISTICS

8. LITERATURE

9. TECHNICAL QUESTIONNAIRE

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TEST GUIDELINES: Comparison of characteristics

  Character 20: Inflorescence* length

*group or cluster of flowers arranged on a stem

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Character 43: Fruit mucron#

#

short medium long absent present

PROBLEM STATEMENT

Farmer’s Rights

• Role in conservation & improvement of Plant Genetic Resources (PGR)

• Poor recognition of this contribution

• Relevant international instruments dictates resolution at national level

• Farmer’s varieties (landrace material) not DUS

• Poor protection of Traditional Knowledge

Plant Variety Protection contributes to erosion of genetic diversity

• PVP encourages plant breeding

• Uniformity is requirement for granting of a PBR

• Increased reliance on commercial varieties

• Threat of disappearance of farmer’s varieties

PROBLEM STATEMENT

Exploitation and Biopiracy of Indigenous Resources

• Access to GR key for R&D and breeding

• Access via in or ex situ collection or communities

• Laws for access, PIC and benefit-sharing poorly implemented

• UPOV limits:

o additional conditions for PBR

o Compulsory sharing of benefits

PROBLEM STATEMENT

Skewed Ownership & Research Activities

• 70% foreign ownership of PBR

• Increased number of ornamentals PBR

• Limited focus on orphan crops

Exclusive Rights

• Exclusive Rights = return on investment

• Contradicts social and economic seed & knowledge exchange system

PROBLEM STATEMENT

Lack of awareness about the PBR Act & Infringements

• Poor awareness contributes to “innocent” infringement

• Infringement incl. unauthorised:

production & sale of the protected variety under its real/ different name

export to territories where there is no protection for the species in question.

production outside the protected area and unauthorised import into the

protected territory.

the use of farm-saved seed without paying the fees due to the breeder.

PROBLEM STATEMENT

Limited number of protected genera & species

• Currently: limited genera

• Contradicts Art 27.3 B of TRIPS

Kinds of plants regulated by other legislation

• Narcotics plants

• Invasive plants

PROBLEM STATEMENT

PBR on wild plants

• Applications on plants from wild

• Discovery not a “creation of mind”

Filing of Applications

• Submission of required documentation prior expiration of novelty period

• Submission of plant material

PROBLEM STATEMENT

Applications for GM Varieties

• Submission of varieties still under evaluation of the GMO Act, 1997.

Variety Denominations (VD)

• VD important for identification of the variety globally

• Applicants submit breeders’ reference (BR)

• Request for change of BR

• Complicates publication and administrative fairness

PROBLEM STATEMENT

Technical Requirements for granting PBR

• Human Resource Capacity:

o Limited trained staff members

o High mobility in Public Service (evaluation extends over at least two growth

seasons)

• Genetically Modified Varieties

o Distinctness at the genotypic level

• Lack of formal advisory support to Registrar

PROBLEM STATEMENT

Maintenance of Plant Material after expiry of right

• During validity period, PBR holder must maintain material

• Maintenance has a financial implication (esp. fruit crops)

• Important material for DUS test

Compulsory licensing

• Registrar may intervene in:

o Unreasonable refusal to grant a license

o Unreasonable conditions attached to license

o Where PBR holder does not satisfy reasonable public demands

• No guidance to Registrar

POLICY OPTIONS: Broad philosophies

Protect material interest of the

inventor

• Broad range of exclusive rights

• Extended periods of protection

• Limits on mandatory licensing

• Narrow exceptions

Reward the inventor, but also

consider society’s welfare

• Limited scope of protection

• Conditional Access and Use of

protected material

Options for Plant Variety Protection in SA

Trade-Related Aspects of Intellectual Property Rights

Agreement (TRIPS)/ Patents

• SA a signatory

• Must provide for patent protection for inventions in all fields of technology

• MAY exclude patents on plant-related inventions

• Protect plant varieties through:

o Patent law

o Sui generis system

o Combination of both

• Patents Act, 1978 excludes the patentability of plants

Options for Plant Variety Protection in SA

Sui generis

• Def: “of its own kind”

• May include:

o Clear definition of what may be protected: Declared plants, New, DUS

o The scope of protection: Sales, propagation, import, exports

o Duration of protection: 20-25 years

Recommended Policy

POLICY INTERVENTIONS: Institutional Matters

National Authority (NA): Registrar & Support personnel

Collaboration with independent national & international experts, compliance to other legislation

Material transferred to National Authority on terms of MTA

DUS testing by NA or breeders (according to guidelines)

Establishment of an Advisory Body

POLICY INTERVENTIONS

Farmer’s Rights

Exploitation and Biopiracy of Indigenous Resources

Genetic Erosion

Exclusive Rights

POLICY INTERVENTIONS:

Farmer’s Privilege (UPOV & PBR Act)

Use of protected varieties on own holding

National Programme on Conservation & Sustainable Use of PGRFA

Systematic collection, documentation and storage of landrace material

On-farm conservation

Indigenous Knowledge System Policy

Stimulate & Strengthen the contribution of IKS to social & economic development

Documentation of IKS

International Treaty on PGRFA

Parties must honor farmer’s rights at national level

Access & benefit-sharing for farmers

POLICY INTERVENTIONS:

Convention on Biological Diversity & Biodiversity Act, 2004

Management & Conservation of Global and SA’s biodiversity

National Sovereignty over biological resources

Management of bioprospecting: Access & Prior-Informed Consent (PIC)

Fair & Equitable benefit-sharing

Patents Act, 1978 [s25 4(b)] & TRIPS:

No patenting of living organisms

Sui generis system for PVP

Patents Amendment Act, 2005 [s30]:

Disclosure of the origin & use of indigenous genetic resources and IKS

POLICY INTERVENTIONS:

Plant Breeders’ Rights Act, 1976 (as amended in 1996)

Relevant administrative procedures

Set periods for exclusive rights followed by compulsory licensing

Scope of the rights

Guidelines & Regulations on conditions for compulsory licensing (amendment Act)

Patents Act, 1978 [s25 4(b)] & TRIPS:

No patenting of living organisms

Sui generis system for PVP

Patents Amendment Act, 2005 [s30]:

Disclosure of the origin & use of indigenous genetic resources and IKS

POLICY INTERVENTIONS:

Skewed Ownership & Research Activities

Technical requirements for granting PVP

Infringements

POLICY INTERVENTIONS:

Promoting & Increasing Plant Breeding activities at public

institutions• Publicly-owned PBRs allows government to set terms of protection, restrictions &

exemptions

• PBR source of income to stimulate further research investment

Human Resources development & Capacity Building• Strengthening technical capacities for DUS testing

• Engaging relevant technical standard-setting bodies

• Support programme for new entrant plant breeders

POLICY INTERVENTIONS:

Infringements

• Enforcement is a private responsibility

• National Authority cooperate with relevant local & international stakeholders on matters

concerning enforcement.