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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) Overview of SA Plant Variety ... – PowerPoint PPT presentation

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Title: PLANT BREEDERS


1
PLANT BREEDERS RIGHTS POLICY
  • J.B. JAFTHA
  • (D Genetic Resources)
  • N. NETNOU-NKOANA
  • (Registrar Plant Breeders Rights Act, 1976)

2
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

3
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

4
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

5
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

6
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

7
SUBJECT MATTER FOR PROTECTION
  • Botanical Classification

8
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.

9
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
10
(No Transcript)
11
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

12
SA involvement in UPOV
  • Chairmanship of Technical Working Party on Fruit
    (2011)
  • SA lead experts

Olives
Agapanthus
13
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

14
TEST GUIDELINES Comparison of characteristics
Character 43 Fruit mucron
  • ¬†¬†Character 20 Inflorescence length
  • group or cluster of flowers arranged on a stem

15
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

16
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

17
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

18
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.

19
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

20
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

21
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

22
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

23
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

24
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

25
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

26
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

27
Recommended Policy
28
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

29
POLICY INTERVENTIONS
  • Farmers Rights
  • Exploitation and Biopiracy of Indigenous
    Resources
  • Genetic Erosion
  • Exclusive Rights

30
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

31
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

32
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

33
POLICY INTERVENTIONS
  • Skewed Ownership Research Activities
  • Technical requirements for granting PVP
  • Infringements

34
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

35
POLICY INTERVENTIONS
  • Infringements
  • Enforcement is a private responsibility
  • National Authority cooperate with relevant local
    international stakeholders on matters
    concerning enforcement.
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