PLANT BREEDERS

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PLANT BREEDERS RIGHTS POLICY

• J.B. JAFTHA
• (D Genetic Resources)
• N. NETNOU-NKOANA
• (Registrar Plant Breeders Rights Act, 1976)

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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 Breeders Rights Act, 1976 (amended in
  1996)
• Dual testing system
• Official Testing at Evaluation Testing Centres
• Breeders trials (as prescribed)
• Plant Variety Protection based on UPOV
• SA bound to 1978 UPOV Convention

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PLANT BREEDERS RIGHT (PBR)

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

• Botanical Classification

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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 breeders 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 Convention Uniform standard of
PVP Technical Working Party Focus on specific
crops sets descriptions standards/ test
guidelines Guidelines over number of years
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(No Transcript)
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Impact of UPOV Membership

• 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

• Countries
• Argentina
• Kenya
• China
• Poland
• Korea

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SA involvement in UPOV

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

Olives
Agapanthus
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TEST GUIDELINESFOR THE CONDUCT OF TESTSFOR
DISTINCTNESS, UNIFORMITY AND STABILITY

• TABLE 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 43 Fruit mucron

•   Character 20 Inflorescence length
• group or cluster of flowers arranged on a stem

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PROBLEM STATEMENT

• Farmers Rights
• Role in conservation improvement of Plant
  Genetic Resources (PGR)
• Poor recognition of this contribution
• Relevant international instruments dictates
  resolution at national level
• Farmers 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 farmers varieties

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PROBLEM STATEMENT

• Exploitation and Biopiracy of Indigenous
  Resources
• Access to GR key for RD and breeding
• Access via in or ex situ collection or
  communities
• Laws for access, PIC and benefit-sharing poorly
  implemented
• UPOV limits
• additional conditions for PBR
• Compulsory sharing of benefits

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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

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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.

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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

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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

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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

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PROBLEM STATEMENT

• Technical Requirements for granting PBR
• Human Resource Capacity
• Limited trained staff members
• High mobility in Public Service (evaluation
  extends over at least two growth seasons)
• Genetically Modified Varieties
• Distinctness at the genotypic level
• Lack of formal advisory support to Registrar

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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
• Unreasonable refusal to grant a license
• Unreasonable conditions attached to license
• Where PBR holder does not satisfy reasonable
  public demands
• No guidance to Registrar

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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 societys
  welfare
• Limited scope of protection
• Conditional Access and Use of protected material

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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
• Patent law
• Sui generis system
• Combination of both
• Patents Act, 1978 excludes the patentability of
  plants

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Options for Plant Variety Protection in SA

• Sui generis
• Def of its own kind
• May include
• Clear definition of what may be protected
  Declared plants, New, DUS
• The scope of protection Sales, propagation,
  import, exports
• Duration of protection 20-25 years

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Recommended Policy
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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

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POLICY INTERVENTIONS

• Farmers Rights
• Exploitation and Biopiracy of Indigenous
  Resources
• Genetic Erosion
• Exclusive Rights

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POLICY INTERVENTIONS

• Farmers 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 farmers rights at national
  level
• Access benefit-sharing for farmers

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POLICY INTERVENTIONS

• Convention on Biological Diversity Biodiversity
  Act, 2004
• Management Conservation of Global and SAs
  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

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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

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POLICY INTERVENTIONS

• Skewed Ownership Research Activities
• Technical requirements for granting PVP
• Infringements

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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

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POLICY INTERVENTIONS

• Infringements
• Enforcement is a private responsibility
• National Authority cooperate with relevant local
  international stakeholders on matters
  concerning enforcement.