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Harmonized Seed Security Project (HASSP)
Plant Variety Protection Workshop
Report on Proceedings by Eddie Goldschagg*, Technical Manager of SANSOR and Wynand van der Walt**, Senior Partner, FoodNCropBio
and consultant to FANRPAN
* [email protected] ** [email protected]
Held at Kopanong Conference Centre , Benoni, South Africa
23th – 24th November, 2011
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CONTENTS
EXECUTIVE SUMMARY AND COMMENTS …………………………………………………………………………………. ACRONYMS AND ABBREVIATIONS ............................................................................................................................ 10 BACKGROUND ..................................................................................................................................................................... 11
DAY I: SESSION 1 .............................................................................................................................................................. 12 1.1.1 WELCOME AND INTRODUCTIONS ................................................................................................................. 12 1.1.2 WORKSHOP OBJECTIVES ................................................................................................................................... 12 SEED POLICY HARMONIZATION – DR BELLAH MPOFU ....................................................................... 12 OBJECTIVES OF THE WORKSHOP – DR BELLAH MPOFU .................................................................... 15 1.1.3 KEY-NOTE ADDRESS: “PVP – WHERE IS AFRICA?” ................................................................................. 16 “PVP – WHERE IS AFRICA?” – MR DAVID COCHRANE........................................................................... 16 DISCUSSION: KEY NOTE SPEAKER’S PRESENTATION .......................................................................... 18 1.1.4 INTRODUCTION TO UPOV CONVENTION ................................................................................................... 19 INTRODUCTION TO UPOV CONVENTION - DR EVANS O. SIKINYI ................................................... 19 DISCUSSION: INTRODUCTION TO UPOV CONVENTION PRESENTATION .................................... 22
DAY 1: SESSION 2 ............................................................................................................................................................. 23 1.2.1 WELCOME REMARKS – CEO OF FANRPAN................................................................................................ 23 1.2.2 SOUTH AFRICAN PLANT BREEDERS’ RIGHTS SYSTEM: AN OVERVIEW OF THE
APPLICATION PROCESS ..................................................................................................................................... 23 SOUTH AFRICAN PLANT BREEDERS’ RIGHTS SYSTEM: AN OVERVIEW OF THE
APPLICATION PROCESS - NOLUTHANDO NETNOU NKOANA ........................................................... 24 DISCUSSIONS: SA PBR APPLICATION PROCESS ....................................................................................... 29 1.2.3 SOUTH AFRICAN PLANT BREEDERS’ RIGHTS DATA ............................................................................. 29 PLANT BREEDERS’ RIGHTS DATA – ELNA DE BRUYN .......................................................................... 29 DISCUSSION: PBR DATA ..................................................................................................................................... 31 1.2.4 ENFORCING PBR PROTECTION ....................................................................................................................... 31 ENFORCING PBR PROTECTION – AT VAN ROOY ..................................................................................... 32
DAY 1: SESSION 3 ............................................................................................................................................................. 39 1.3.1 SADC DRAFT PROTOCOL ON PBR VS. UPOV CONVENTION ................................................................ 39 SADC DRAFT PROTOCOL ON PBR VS UPOV CONVENTION – DR W VAN DER WALT .............. 39 1.3.2 COUNTRY REPORTS ON THE STATUS OF NATIONAL PBR ................................................................. 41 KEY PROVISIONS IN THE MALAWI PLANT BREEDERS’ RIGHTS DRAFT BILL ........................... 41 DISCUSSION: PBR IN MALAWI ........................................................................................................................ 45 THE PLANT VARIETY PROTECTION SITUATION IN SWAZILAND ................................................... 46 DISCUSSION: SWAZILAND ................................................................................................................................. 49 PLANT VARIETY PROTECTION SYSTEM IN ZIMBABWE ...................................................................... 49 DISCUSSION: ZIMBABWE .................................................................................................................................. 55 PLANT VARIETY PROTECTION SITUATION IN ZAMBIA ...................................................................... 56 DISCUSSION: ZAMBIA ......................................................................................................................................... 59
DAY 2: SESSION 1 ............................................................................................................................................................. 59 2.1.1 PRACTICAL COMPLEXITIES IN NDUS AND EDV ...................................................................................... 59 PRACTICAL COMPLEXITIES IN NDUS AND EDV – DR WYNAND VAN DER WALT .................... 59 DISCUSSION: PRACTICAL COMPLEXITIES IN NDUS AND EDV .......................................................... 62 2.1.2 GLOBAL STATUS AND IMPACT OF PVP ....................................................................................................... 62 GLOBAL STATUS AND IMPACT OF PVP – DR EVANS O. SIKINYI ....................................................... 62
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DISCUSSION: GLOBAL STATUS AND IMPACT OF PVP ........................................................................... 70 2.1.3 LICENSING OF PUBLIC VARIETIES ................................................................................................................ 71 LICENSING OF PUBLIC VARIETIES – EDDIE GOLDSCHAGG ................................................................ 71 DISCUSSION: LICENSING OF PUBLIC VARIETIES .................................................................................... 73
DAY 2: SESSION 2 ............................................................................................................................................................. 74 2.2.1 STATUS AND IMPACT OF PBR IN KENYA ..................................................................................................... 74 KENYA: STATUS AND IMPACT OF PBR - DR. EVANS. O. SIKINYI ...................................................... 74 DISCUSSION: KENYA – STATUS AND IMPACT OF PBR .......................................................................... 79 2.2.2 IMPLICATIONS OF FARM SAVED SEED ....................................................................................................... 80 FARM SAVED SEED: IMPLICATIONS - PATRICK GRAHAM .................................................................. 80 DISCUSSION: FARM SAVED SEED – IMPLICATIONS ............................................................................... 90
DAY 2: SESSION 3 ............................................................................................................................................................. 91 2.3.1 CASE STUDIES .......................................................................................................................................................... 91
WORKGROUPS: COUNTRY PLANS ON PBR ........................................................................................................ 91 2.4.1 NATIONAL PLANS: SWAZILAND ..................................................................................................................... 92 2.4.2 NATIONAL PLANS: ZIMBABWE ........................................................................................................................ 92 2.4.3 NATIONAL PLANS: ZAMBIA ............................................................................................................................... 92 2.4.4 NATIONAL PLANS: MALAWI ............................................................................................................................. 93 DISCUSSION: NATIONAL PLANS ................................................................................................................................. 93 CLOSING ................................................................................................................................................................................. 93
ANNEXES: ............................................................................................................................................................................. 94 Annexure A1 Meeting Schedule .............................................................................................................................. 94 Annexure A2 List of participants ........................................................................................................................... 96 Annexure A3.1 Page from Table 1 – Kinds of Plants and Periods of Rights ............................................ 98 Annexure A3.2 Submission List for Forms, Seed and/or plant Material for PBR ................................. 99 Annexure A3.3 Application Form for PBR ........................................................................................................... 100 Annexure A3.4 Tariffs as from 1 April 2011....................................................................................................... 104 Annexure A3.5 Schedule I – Notice of Appointment or Substitution of Agent ..................................... 105 Annexure A3.6 Technical Questionnaire – Carrot, Page 1 ............................................................................ 106 Annexure A3.7 Schedule G – Application for Alteration of Denomination ............................................ 107 Annexure A3.8 Schedule H – Voluntary Surrender of PBR........................................................................... 108 Annexure A3.9 Schedule J – Withdrawal of Application for PBR ............................................................... 109 Annexure A3.10 Notice of Transfer of PBR ........................................................................................................... 110
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REPORT ON THE PLANT VARIETY PROTECTION WORKSHOP
HELD ON 24 – 25 NOVEMBER 2012 AT KOPANONG, GAUTENG
EXECUTIVE SUMMARY AND GENERAL COMMENTS
1. INTRODUCTION
The workshop on Plant Variety Protection forms part of the Harmonized Seed Security Project (HaSSP) which has as primary objective access to seed of improved varieties and facilitated movement of such seed between SADC member states. This project flows from the previous SADC Seed Security Network. For FANRPAN, the HaSSP project funded by the Swiss Agency for Development and Cooperation covers four countries: Malawi, Swaziland, Zambia and Zimbabwe.
For the first time, there seems to be measurable progress in SADC towards extending legal protection of new varieties, as the product of scientific innovation and personal endeavour, to the innovator/owner of such varieties. It is well recognized that modern varieties can contribute to higher yield potential, improved resistance to pests and diseases and an extended range of qualities and uses. Yet, perhaps some of the driving forces behind expediting protection of plant varieties may not have been sufficiently emphasized.
1. Intellectual property rights protection is dictated in Article 27 of the Universal Declaration of Human Rights (1948): “ Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the owner”
2. The Southern, Central and Eastern African sub-regions are moving towards greater intra-trade, which requires removal of artificial trade barriers, and harmonization of rules and regulations at many levels so that commerce and industry can flourish to the betterment
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of society. For agriculture, this extends to alleviating immense rural poverty, food insecurity and malnutrition.
3. The WTO-TRIPS Agreement demands that member states provide protection for plant varieties under patents or a sui generis system.
4. The FANRPAN slogan is “There can be no food security without seed security”. This includes access to improved varieties. Without proper protection there can be no such access while Africa-bred varieties will continue to be exposed to piracy.
5. The Swiss funding is for 2010 – 2013 which means that tangible progress must be shown before end 2013 to justify the funding supplied.
2. OPENING OF WORKSHOP
Dr Bellah Mpofu opened the meeting by welcoming all participants, speakers and those who assisted in organizing the workshop. She recalled the key challenges in implementing the HaSSP project: low farmer access to seed technology, high post-harvest losses, poor input – output linkages to and information on markets, and farmers remaining seed insecure. She proceeded to cover the history of seed harmonization initiatives from 1987 to the 2010 signing of the SADC MOU.
DR Lindiwe, CEO of FANRPAN, in her welcoming address, reminded the participants that FANRPAN is a research and policy advocacy organization that strives to bring farmers, researchers and policy makers together. To this end, it is required that knowledge should be shared between the 13 SADC states, also between the four target countries in the case of PVP
3. OBJECTIVE OF WORKSHOP
Dr Mpofu stated the objectives as sharing understanding of plant variety protection, developing best practices for PVP, listing key stakeholders involved in the PVP process, identify key challenges for PVP in the four countries, draft way forward for each of the four countries, sharing of PVP experiences, and participants serving as a forum for information exchange and responding to enquiries.
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4. SUMMARY OF THE PROGRAM
This is contained in Annex p.94
5.LIST OF DELEGATES
This list is contained in Annex p. 96
6. SUMMARY OF PRESENTATIONS It has been attempted to cover presentations by common topic, rather than
summarizing each in order of the programme.
6.1 UPOV, membership status, PBR impact
Dr Sikinyi of STAK (previously with KEPHIS) introduced the audience to UPOV that had been established as an international convention with mission to establish an effective PVP system for new plant varieties. It presently has 70 members including EU with 27 states and OAPI with 16 West African states. All of North America, virtually all states in Latin America and in Europe from UK to Russia, Australia and New Zealand, and several Asian countries are UPOV members. In Africa there are only four members. Variety protection encourages investment in plant breeding to the benefit of society. Key provisions for PBR are novelty, distinctness, uniformity and stability plus denomination, compliance with administrative processes and payment of fees. UPOV 91 added essential derivation of varieties as a limit to breeders’ privilege, and an optional provision of farmers’ privilege in retaining harvested material for use as propagating material for resowing. Mr David Cochrane, patent attorney at Spoor&Fisher, provided an overview on IPR in Africa. Most African states have some or other form of protection, being a national type of plant breeders rights, patents, trade marks, contract law, or other systems under common law or civil law. OAPI, Egypt and Zimbabwe are in process to accede to UPOV 91 convention, six others are in contact with UPOV, another 8 have PBR drafts, and only South Africa, Kenya, Morocco, and Tunisia are UPOV members. In response to a question, he advised that no PBR/PVP protection is possible if there are no laws to that effect. Dr Sikinyi, in further presentations, provided data on impact of plant breeders’ rights (PBR). The number of varieties enjoying PBR under UPOV increased from 7 000 in 1974 to 85 000 in 2010, Europe being the leader, followed by
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Asia-Pacific, then North America. Result is new varieties with improved traits, increased investment in breeding, development of private companies, access to foreign varieties, more crop production to benefit farmer income and rural economies. In Kenya, cut flower exports rose from KSh12 billion in 1997 to KSh40 billion in 2010.
6.2 SADC Protocol on PBR
Dr.W. van der Walt explained that the Protocol is based on UPOV 91 Convention and that the Convention contains all the requirements for PBR plus details on the status and administration of UPOV as an organization. Likewise, national PBR laws and regulations must comply with these requirements with additional information of national administration. The Protocol contains information on administration, a SADC list of PBR varieties, protection of existing varieties, civil proceedings, licences, disputes, appeals and accession by members. In essence, the Protocol complies with UPOV 91 but he suggested a few elements in the text that need clarification.
6.3 Administration of PBR in South Africa
Ms N. Netnou-Nkoana, Registrar of PBR, explained that the office of the Registrar is in the Directorate of Genetic Resources, Department of Agriculture, Forestry and Fisheries. There are 335 kinds of plants eligible for PBR and for new species a breeder has to apply, the application is evaluated by her office and, if recommended, the Minister will approve it. There are three centres for evaluation of NDUS: Roodeplaat (Pretoria), Stellenbosch and Nelspruit. Applications for PBR and variety registration can be done simultaneously and will use same DUS data. Provision is made for objections and appeals. Ms Elna de Bruyn is responsible for maintenance of all PBR records. Details are kept in four databases: agricultural crops, vegetables, ornamentals, and fruit species. Applications and decisions are published in the quarterly SA Plant Variety Journal and a complete list of PBR (presently some 2500) contained in an annual edition.
6.4. DUS testing
Mr E. Goldshagg, technical manager of SANSOR, covered practical issues on DUS testing. Dr van der Walt highlighted complexities associated with DUS
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testing with reference to genetic-environment interaction, OPVs being more variable than hybrids, many varieties being closely related, GM varieties differing from their conventional in only one or a few genes, and setting parameters for determining essential derivation, i.e. genetic distance as opposed to phenotypic distance.
6.5 Variety licensing
Mr Goldschagg gave a review on how SANSOR handles licensing of public varieties for the Agricultural Research Council and the University of Stellenbosch, enumerating the various options for a variety sub-licence, SANSOR holding the main licences for varieties. Royalties are collected for the respective owners.
6.6 Enforcing PBR protection
Mr At van Rooy, patent attorney at Kisch attorneys, presented the legal approaches in combatting infringements of breeders’ rights. He cited use of the PBR Act and, where appropriate patent and trade mark acts, plus other legislation. The key is that the claiment must compile a complete dossier on prima facie infringement evidence. Mr Patrick Graham, of Sensako seed company, reported on major problems in use of farm-saved seed of cereal grains. His approach is to contract farmer clients on a basis that they undertake to obtain his approval before using farm-saved seed and that a reduced royalty fee is payable on such seed.
6.7 Country status reports
Mr Banda reported that Malawi has a draft PBR Bill under which the Minister shall appoint a PBR Advisory Board, Registrar, examiners, assessors and inspectors. PBR will be administered by the Malawi PBR Office. In general, the Bill complies with UPOV requirements fro eligibility and approval of a right and the scope of protection. There was some uncertainty on the extent of farmers’ privilege, i.e. use of farm-saved seed by smallholders. Ms Maseko and Mr Harry van der Burg of Swaziland advised that seeds are regulated under the National Seed Policy, the Seed and Plant Variety Act, and that there is a Plant Variety Protection Bill being drafted by the Ministry of Justice in collaboration with the Ministry of Agriculture. The national policy involves a range of stakeholders that includes three
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Ministries. E. Gubunje of Seed Services explained that Zimbabwe has a PBR Act enacted in 1973 under chapter 18.16. The head of Seed Services is also the Registrar of PBR. The regulations were last revised in 1998 and the Act in 2001. Accession to UPOV 91 is in process. A list was provided of PBR granted for varieties in 37 species. Mr Simbunji of the PBR Office in Zambia reported that the country had enacted a PBR Act no. 18 in 2007 and that it will be administered by the Seed Control and Certification Institute. Completion of regulations is expected during 2012. Some 9 applications have been received.
6.8 Country way forward
At the country working session the following report-backs were received:
Swaziland will develop PVP legislation and a team of representative experts is being set up, the draft will go to the Ministry of Agriculture and stakeholders, whereafter it will be presented to Parliament as a Bill.
Zimbabwe has amended its PBR Act and it is with UPOV. Impact of Act and regulations will be assessed.
Zambia needs to amend its Act to comply with UPOV, it will improve administration and conductb public awareness.
Malawi needs to review its 10-year old draft Act and will start to engage a lawyer.
6.9. Participants evaluation Participants were generally very satisfied with the workshop, giving an equal rating to 4 (good to high) and 5 (high) on scale 1 to 5, and same to relevance and usefulness. More focus is desired on SADC MOU and Protocol, and more case studies needed.
COMMENTS AND RECOMMENDATIONS
Plant varieties may be eligible for protection, subject to meeting the appropriate requirements, under plant breeders’ rights (PBR), patents, trade marks, contract law, and other systems. The workshop dealt with these options (not exclusive but often combined systems) by way of presentations by two expert patent attorneys and by sharing experiences during discussions. The major focus was on plant breeders’ rights in view of the SADC Protocol on Plant Breeders’ Rights that is modelled on UPOV 91. This
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document apparently has not yet received the same political attention as did the seed harmonization part but recent progress is appreciated.
The desire to draft PBR protection in consideration of national country differences is recognized and the UPOV Convention makes provision for that, subject to all criteria being met – for example protection for fruit and trees is for 25 years, other species for 20 years, but a country can stipulate all species to be protected for 25 years.
The basic criteria can be cryptically listed: the variety must be new, distinct from other varieties, uniform as per variety decription, and stable over generations of propagation or reconstituted for every cycle in the case of hybrids. There must be an identified and substantiated owner/breeder, as per definition. Rights of breeders must be described and exemptions clearly defined. Apart from defining Scope of legislation and technical terms, provision must be made for objections, appeals and arbitration/litigation. Fees need to be specified in regulations. Unless minimum criteria can be met, the HaSSP objective of access to improved varieties will not be achieved.
It is good to have noticed that the country way forward aims to meet UPOV compliance. No reference was made to the SADC Protocol which is largely UPOV compliant but extends PBR to a regional level with the ultimate SADC variety list so that new varieties can enjoy more rapid protection.
It seems that the urgency of implementation has been recognized by participants. It may be wise to consider what happens if inadequate progress cannot be shown by end of 2013 due to political and administrative delays in implementation. Will donors exit or focus on certain countries only? Member states should be reminded of the Maputo Declaration of 2003 that compels states to allocate 10% of national budgets to developing agriculture. Moving forward on PBR should be part of this budgeting funding. There should be no more constraints in terms of inadequate funding, infrastructure, facilities, and human resources if targets are to be met.
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ACRONYMS AND ABBREVIATIONS
EDV Essential Derived Variety
FANRPAN Food, Agriculture and Natural Resources Policy Analysis Network
HASSP Harmonised Seed Security Project
ISTA International Seed Testing Association
IV Initial Variety
IP Intellectual Property
MoU Memorandum of Understanding
NGO Non-Governmental Organization
NSA National Seeds Authority
OECD Organisation for Economic Cooperation and Development
PBR Plant Breeders’ Right
PMU Project Management Unit
PVP Plant Variety Protection
SADC Southern African Development Community
SANSOR South African National Seed Organisation
SDC Swiss Agency for Development Cooperation
SGA Seed Grower Association
SMAGs Seed Marketing Action Group
SSCQAS SADC Seed Certification and Quality Assurance System
SSSN SADC Seed Security Network
STAK Seed Trade Association of Kenya
TOR Terms of Reference
UPOV Union for the Protection of New Plant Varieties
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BACKGROUND
In response to the challenges of food insecurity, the Swiss Agency for Development and Cooperation (SDC), guided by its development philosophy stated in the “Message South” successfully funded Phase I of the SADC Seed Security Network Project (SSSN 1) (2006-2008), whose aim was to contribute to policy dialogue and formulation, culminating in elimination of trade barriers that are hindering intra-regional trade in seed products. SSSN 1 culminated in the approval of a Memorandum of Understanding (MoU) by SADC Ministers responsible for Agriculture and Food Security to adopt a SADC Harmonized Seed Regulatory System. The protocol has high potential to improve the flow of improved seed between countries, thus increasing access by men and women farmers to higher yielding technology. If implemented, the protocol will strengthen: (i) the variety release system to promote sharing of improved crop varieties across countries, (ii) strengthen the seed certification and quality assurance system in order to speed up the release of commercial seed onto the market, and (iii) strengthen the phytosanitary and quarantine measures system to standardize them and facilitate cross-border movement of safe seed within the region.
Given this potential, and building on this success from the SADC Seed Security Network (SSSN) 1, SDC is funding Phase 2, the Harmonized Seed Security Project (HASSP) with the overall objective of improving food security of smallholder farmers in the SADC region by increasing their access to seed of improved varieties. The purpose of the project is to provide enabling support to SADC member states to domesticate the regional seed protocol, harmonize their seed policies and legislation, and effectively implement the provisions of the protocol with enhanced national capacities. The ultimate beneficiaries of the project are smallholder farming households whose access to better yields of staple and other preferred crops are expected to increase.
Although the implementation of the protocol would facilitate and ease the movement of seed across borders in the SADC region, it was recognized that without the protection of intellectual property rights for varieties, the introduction of improved varieties to the countries concerned would be severely hampered. Breeding institutions and seed companies would not market their improved varieties in countries where they were not ensured to get a return on their investment. Therefore, it was imperative that all countries in the region should have a system of plant variety protection that was acceptable to the providers of new genetics. This workshop will hopefully contribute towards that goal.
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DAY I: SESSION 1
1.1.1 WELCOME AND INTRODUCTIONS
Dr Bellah Mpofu of FANRPAN welcomed all the participants and presenters and mentioned that the Workshop was a good opportunity to interact and learn from each other, especially those that are in the process of drafting their own plant variety protection legislation. A special word of appreciation was directed to Dr Wynand van der Walt for his efforts in the preparation of the workshop.
The participants and presenters introduced themselves stating their names, countries, positions and expectations of the workshop.
1.1.2 WORKSHOP OBJECTIVES
FANRPAN Project Coordinator, Dr Bellah Mpofu, made a presentation on Seed Policy Harmonization, as well as on the objectives of the two-day Workshop. Achievements of the SSSN were also captured, chief among them being the signing of an MOU by SADC Ministers of Agriculture on the three technical agreements.
She also highlighted that the region continues to learn from success stories of Kenya and South Africa on PVP.
Below is the outline of her presentation: -
SEED POLICY HARMONIZATION – DR BELLAH MPOFU
CHALLENGES AND CONSTRAINTS
Low agricultural productivity is a major challenge amongst smallholder farmers due in part to:
Low access to technology o 4 % of African smallholder farmers use improved seed
High post-harvest losses o Physical grain losses (prior to processing) amount up to 40 %
Poor input and output market linkages and marketing information o unstructured markets, disorganised supply chains, erratic price fluctuations
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SEED SECURITY IN SADC
Challenge
In SADC farmers remain seed insecure due in part to o different seed laws and regulations, and procedures which hinder the
timely movement of seed across borders
Solution
Harmonization of seed policies, laws, regulations and procedures into a unified strategy with the aim of increasing the flow of seed across national borders.
Impact
This will increase the choice of quality seed available to farmers, leading to increased productivity, income and food security.
HISTORY OF SEED HARMONIZATION IN SADC
1987: Proposed in the Danagro study of national seed systems
1988-2003: 11 regional meetings and five national workshops on seed harmonisation
2007: Three SADC Seed Harmonization Protocols finalized and endorsed
2010: MOU for the implementation of SADC seed regulatory system signed
SADC SEED SECURITY NETWORK PROJECT
Launch
SSSN 1 was launched in July 2001 as a unit within the Food, Agriculture and Natural Resources (FANR) directorate of the SADC secretariat
Aim
To contribute to policy dialogue and formulation, which was to culminate in the elimination of trade barriers that are hindering intra-regional seed trade.
SADC SEED SECURITY NETWORK (SSSN) OUTPUTS
A Harmonised Seed Regulatory system with 3 components
o Variety registration and release – to expedite testing and registration of new varieties and to increase the choice of varieties available to farmers;
o Seed certification and quality control – to improve seed quality and facilitate more efficient movement of seed in the region; and
o Phytosanitary and quarantine measures for seed – to enhance safer and faster movement of seed,
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As well as an MOU for implementation of the system.
In 2010: SADC Ministers of Agriculture signed the MoU.
Often time regional protocols are developed but not implemented.
FANRPAN is conducting a pilot project in an attempt to ensure that the regional protocol on seed policy harmonization is domesticated and implemented in order to benefit farmers.
The title of the project is: Harmonized Seed Security Project (HaSSP).
THE HARMONISED SEED SECURITY PROJECT (HASSP)
Project Purpose: Domesticating and implementing the Harmonised Seed Regulatory System in four pilot countries - Malawi, Swaziland, Zambia, and Zimbabwe.
Project Goal: To contribute to improved food security of smallholder farmers in the SADC region through increased availability of and access to improved seed.
Duration: Four years (2010 – 2013).
Funding: Swiss Agency for Development and Co-operation (SDC).
PROJECT OBJECTIVES
1. Alignment of variety release policies in four Member States with SADC protocols.
2. Alignment of seed certification policies in four Member States with SADC protocols
3. Alignment of phytosanitary policies in four Member States with SADC protocols.
4. Strengthening of seed certification facilities (equipment).
5. Assessment of institutional and individual capacity needs, and capacity strengthening along the seed value chain.
PLANT VARIETY PROTECTION
Another output of SSSN1 was a draft protocol and MOU on Plant Breeders Rights.
This protocol was not included in the MOU that was signed by Ministers of Agriculture in 2010.
However, stakeholder still recognize the importance of plant variety protection in the seed sector, hence the need for this workshop.
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OBJECTIVES OF THE WORKSHOP – DR BELLAH MPOFU
To develop a shared understanding of plant variety protection principles.
To develop a shared understanding of best practices in plant variety protection implementation in Africa.
To map key stakeholders/institutions active in plant variety protection at national, regional and international level.
To determine the key challenges in the four pilot countries, including gaps in legal frameworks and capacity - for improved plant variety protection.
To chart a way forward for each pilot country.
To share experiences, compare notes on legislation and procedures and learn from each other.
Provide a forum for you to questions answered by resource people and speakers with a wealth of practical experience in this field.
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1.1.3 KEY-NOTE ADDRESS: “PVP – WHERE IS AFRICA?”
After the discussions on objectives of the meeting, a keynote address was given by Mr David Cochrane, a patent attorney of Spoor & Fisher. During his presentation he mentioned SADC Countries may consider a regional system such as under ARIPO for plant variety protection.
Below are the highlights of his presentation: -
“PVP – WHERE IS AFRICA?” – MR DAVID COCHRANE
BRIEF OVERVIEW OF IP
Trade Mark – word/s or device/s which distinguishes goods or service. Copyright – Protects literary, artistic and musical works, computer programs. Registered Design – Protects the appearance of an object. Patent – Protects the underlying principle of a new invention, e.g. genetically modified
plants. But, does not protect a new variety made by an essentially biological process. Plant Breeders’/Plant Variety Right/Plant Patent – Protects a new variety of plant,
whether genetically modified or made by an essentially biological process.
IP IN AFRICA
Most African countries now have their own national IP laws, often based on the legal system of a former colonial power: North and West African countries are “civil law” countries with “deposit systems”
modelled on that of France. South and East African countries are “common law” countries modelled on the United
Kingdom. Angola and Mozambique modelled on Portugal. DR Congo, Burundi and Rwanda modelled on Belgium.
Many countries have adhered to international conventions and agreements such as: TRIPS, Paris Union, Madrid Agreement/Protocol, PCT, UPOV. Two regional systems: African Intellectual Property Organisation – OAPI African Regional Intellectual Property Organisation - ARIPO
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Of the 70 member States of UPOV, only 4 are African countries:
o Kenya (joined 13 May 1999) o Morocco (joined 8 October 2006) o South Africa (joined 6 November 1977) o Tunisia (joined 31 August 2003)
OAPI, Egypt and Zimbabwe have initiated the procedure for acceding to UPOV. Algeria, Ghana, Libya, Sudan, Tanzania and Zambia have been in contact with UPOV. PBR/PVP however is available in 20 African countries. 8 African countries have draft legislation for PBR/PVP, or legislation that is still to
come into force or effect. African countries are considering PBR/PVP legislation.
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African countries that have draft legislation for PBR/PVP, or legislation that is still to come into force or effect: Angola Democratic Republic of Congo Madagascar Malawi Mauritius Namibia Uganda Zambia (2007 Act, Regulations published May 2011, but uncertain if mechanisms
for filing are in place).
African countries that are considering PBR/PVP legislation: Ghana Botswana Lesotho Swaziland
A regional SADC or ARIPO PBR/PVP system?
DISCUSSION: KEY NOTE SPEAKER’S PRESENTATION
The following questions emanated from Mr Cochrane’s presentation:
Question: How does one go through a process of protecting a variety in a country with no PBR legislation?
Response: If there is no law which enables the breeder to be granted a PBR it means the variety cannot be protected through a PVP law.
Question: Is it possible for SADC countries who are also ARIPO members to subscribe to
two systems with regards to intellectual property rights. Response: There are countries like SA who are members of SADC but may not join ARIPO
in the foreseeable future; therefore it is best to have separate systems running at the same time. However the respective legislations should be aligned for this to be enforceable.
Question: Is there any difference if we compare Namibia’s plant variety protection
through patents and those countries doing so through PBRs? Response: Namibia’s law on this is an old one which is now being reviewed. Hence, this is
going to be corrected.
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1.1.4 INTRODUCTION TO UPOV CONVENTION
Dr Evans O. Sikinyi, Director of the Seed Trade Association of Kenya (STAK) presented a brief on the history of UPOV, an overview of how the UPOV system works and the principles behind the system itself.
Below follows the outline of his presentation:
INTRODUCTION TO UPOV CONVENTION - DR EVANS O. SIKINYI
UPOV = International Convention for the Protection of New Varieties of Plants. Established in 1961 with mission to provide and promote an effective system of plant variety protection, with aim to encourage development of new plant varieties for benefit of society.
MEMBERSHIP
UPOV presently has 70 members that include the EU as one member for their 27 states, and OAPI representing 16 members.
IMPORTANCE OF BREEDING:
providing varieties with higher yield potential, improved pest and disease resistance, stress tolerance, better qualities, unique traits to serve market preferences, and to increase biodiversity.
WHY PROTECTION:
plant breeding is a long and expensive process, varieties can easily be multiplied and thus, pirated,
o Breeders need to recover investment costs through marketing income.
1991 Act
Other Acts
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SOME DEFINITIONS:
A breeder is: o a person who bred or discovered and developed a variety; or
o the person who is the employer of the aforementioned person or who has commissioned the latter’s work, where the laws of the relevant Contracting Party so provide; or
o a successor in title to breeder.
A variety is: o a plant grouping of the lowest rank,
o defined by expression of characteristics resulting from genotype,
o distinguishable from other plant grouping, and
o suitable for unchanged propagation.
KEY PROVISIONS OF THE UPOV 1991 CONVENTION:
NDUS CRITERIA:
(1) Novelty = no sale or disposal within 1 year in own country, 4 years in other territories (6 years trees/vines), except for recent varieties of new UPOV members;
(2) Distinctness = distinct in certain plant phenotype characteristics from other varieties; (3) Uniformity = even and uniform plant appearance as per variety description; (4) Stability = maintaining its phenotypical characteristics through successive cycles of
propagation or cycles of reconstitution of a hybrid variety.
These criteria are assessed in side-by-side field trials of varieties.
OTHER REQUIREMENTS:
Variety denomination to be different from other varieties of the same species or group of species;
o No rights on the designation must hamper free use as the variety denomination
o Breeder must submit variety under same denomination in all members of the Union
compliance with administrative/regulatory formalities;
payment of prescribed fees.
NO OTHER CONDITIONS THAN THE ABOVE MAY BE SET FOR PBR REGISTRATIONS!
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DURATION OF PROTECTION:
Minimum of 20 years,
25 years for trees and vines.
BREEDER’S PROTECTION
breeder’s authorization needed for:
o production or reproduction (multiplication),
o conditioning,
o offering for sale,
o selling/marketing,
o exporting/importing,
o stocking for any of above purposes,
for any protected variety and also to varieties not distinguishable from the protected variety, and where a variety needs repetitive use of the protected variety.
MATERIAL COVERED
All propagating material
Extended to harvested material under conditions where unauthorized use of propagated material prevented the breeder from exercising his rights.
ESSENTIALLY DERIVED VARIETIES (EDV)
A variety shall be deemed essentially derived from another variety (“the initial variety” (IV)) when - it is predominantly derived from the initial variety, or from a variety that is
itself predominantly derived from the initial variety, while retaining the expression of the essential characteristics that result from the genotype or combination of genotypes of the initial variety,
it is clearly distinguishable from the initial variety, and
except for the differences which result from the act of derivation, it conforms to the initial variety in the expression of the essential characteristics that result from the genotype or combination of genotypes of the initial variety.
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PURPOSE: to ensure sustainable plant breeding development by:
o providing effective protection for the breeder, and
o encouraging cooperation between breeders and developers of new technologies such as genetic modification
May be obtained for example by: o selection of a natural or induced mutant
o selection of a somaclonal variant
o selection of a variant individual from plants of the initial variety
o back-crossing
o transformation by genetic engineering
EXCEPTIONS TO BREEDERS’ RIGHTS
COMPULSORY
Acts done: o privately and for non-commercial purposes o for experimental purposes o breeding other varieties (breeder’s exemption”)
ADVANTAGES OF THE BREEDER’S EXEMPTION – Germplasm sources remain accessible to the community of breeders – Genetic basis for plant improvement is broadened and is actively conserved – Variety improvement is enhanced – Opportunity for all breeders to share in benefits of breeding activities
OPTIONAL
Farm-saved seed (Farmers’ Privilege)
A Contracting Party may restrict breeder’s rights in order to permit farmers to use: – for propagating purposes on their own holdings the product of the harvest – obtained on their own holdings from the protected variety – within reasonable limits – subject to safeguarding legitimate interests of the breeder
[Article 15(2) and Recommendation of the Diplomatic Conference]
DISCUSSION: INTRODUCTION TO UPOV CONVENTION PRESENTATION
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Question: How can Zambia handle the issue of novelty regarding vegetable varieties since these are not on the national plant variety list as they are not covered by the Seeds Act?
Response: Commercialization / Variety release regulations should not be mixed up with plant variety protection as these operate under two different legislations. When it comes to novelty available records may be used as proof. However DUS information is a requirement and this can be purchased from other countries.
Question: Is it not an uphill task to exercise a PBR on harvested materials when it comes to the burden of providing proof of that the material was really produced from a specific variety?
Response: It is of course expensive but the best way is to discourage infringement in the first place. Exercising the right also depends on the scale of infringement. If there is a high value of potential royalties lost it is worth it.
DAY 1: SESSION 2
1.2.1 WELCOME REMARKS – CEO OF FANRPAN
The second session started with welcome remarks from the CEO of FANRPAN, Dr. Lindiwe Majele Sibanda, who highlighted the objective of FANRPAN. She stated that FANRPAN is a research and policy advocacy organisation which aims to connect farmers, researchers and policy makers in Africa. To achieve this goal it is obvious that it should facilitate sharing of knowledge among its thirteen member countries. The HaSSP Plant Variety Protection Workshop was therefore one such occasion during when member states share knowledge. During this particular workshop, members were expected to share knowledge with particular emphasis on Plant Variety Protection in their respective countries. She was however, not impressed with the low participation that was evidenced by the low number of individual country member representation. She thanked Kenya for allowing Dr. Evans Sikinyi from Seed Trade Association of Kenya, to share the Kenyan experience on Plant Variety Protection. This could ensure that Africa speaks with one voice.
Thereafter the CEO welcomed all participants, urging them to feel at home and make contributions during the workshop for the benefit of Africa.
Two presentations followed where the Plant Breeders’ Rights System in South Africa were explained.
1.2.2 SOUTH AFRICAN PLANT BREEDERS’ RIGHTS SYSTEM: AN OVERVIEW OF THE APPLICATION PROCESS
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Noluthando Netnou-Nkoana, the Registrar of Plant Breeders’ Rights, gave on an overview of the application process. She used the Application Form for Plant Breeders’ Rights as basis for her presentation, therefore, it is not copied in full hereunder, only those aspects not contained within the Form. However, the Form itself is attached as annexure, together with all the other Forms used during the process.
ANNEXURES TO THIS PRESENTATION:
Annexure A3.1: Page from Table 1: Kinds of Plants and Periods of Rights Annexure A3.2: Submission List for Forms, Seed and/or plant Material for PBR Annexure A3.3: Application Form Annexure A3.4: Tariffs as from 1 April 2011 Annexure A3.5: Notice of Appointment or Substitution of an Agent Annexure A3.6: Technical Questionnaire – Carrot, Page 1 Annexure A3.7: Schedule G – Application for Alteration of Denomination Annexure A3.8: Schedule H – Voluntary Surrender of PBR Annexure A3.9: Schedule J – Withdrawal of Application for PBR Annexure A3.10 Notice of Transfer of PBR
SOUTH AFRICAN PLANT BREEDERS’ RIGHTS SYSTEM: AN OVERVIEW OF THE APPLICATION PROCESS - NOLUTHANDO NETNOU NKOANA
PLANT BREEDERS’ RIGHTS SYSTEM: ORGANISATION
OFFICE OF THE REGISTRAR: ADMINISTRATION
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PRESCRIBED GENERA AND SPECIES:
335 Kinds of plants: • 166 Ornamental crops • 97 Agricultural crops • 36 Fruit crops • 36 Vegetable crops
See Annexure A3.1 for a page from Table 1 as an example of kinds declared.
DECLARATION OF PLANTS
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ADMINISTRATION
EVALUATION CENTERS: DUS
DUS TESTS
Centralized testing system Breeder-based testing system
• Seed crops • Fruit and some ornamental crops
• Authority performs all tests and trials • Applicant establishes plants on his premises
• Authority maintains seed reference collections
• Applicant plants according to official’s instructions
• All tests and trials at the evaluation center
• Officials visit trial site during the growing cycle
Chrysanthemum (CPVO)
Lucerne (Australia, Argentina)
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APPLICATION PROCESS
OBJECTION
APPEAL
• Registrar
• Parties involved
• Witnesses
• Decision
• Publication
• Appeal Board (Minister) • 1 Chairperson (Law) • 2 members (Subject matter)
• Parties involved
• Witnesses
• Confirm OR set aside, Registrar’s decision
• Publication
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SERVICES
• DUS REPORTS: Brazil, Kenya, Morocco, Egypt
• VARIETY DESCRIPTIONS: Individuals, Researchers, Companies
• REQUESTED INFORMATION: The Promotion of Access to Information Act, Act 2 of 2000
CONTACT DETAILS: OFFICE OF THE REGISTRAR
Registrar: Noluthando Netnou-Nkoana Tel: +2712 319 6318 Fax:+2712319 6385 E-mail: [email protected]
Plant Variety Registration officer: Ornamentals and Fruit Marcini Govender (Mrs) Tel: +27 12 319 6226 Fax: +27 12 319 6385 E-mail: [email protected]
Plant Variety Registration officers: Vegetable and Agricultural crops Elna de Bruyn (CJ) Tel: +27 12 319 6096 Fax: +27 12 319 6385 /0866923788 E-mail: [email protected]
CONTACT DETAILS: EVALUATION CENTERS
Roodeplaat : Agricultural crops, vegetables and ornamental crops Mrs Nel Tel: 083 259 0332 Fax: 083 235 9378 E-mail: [email protected]
Stellenbosch: Deciduous fruit, strawberries, grapes, tunnel vegetables and fynbos Robyn Hierse or Carenza Petzer Tel: (021) 809 1655 Fax: (021) 887 2264 Email: [email protected]/[email protected]
Nelspruit: Citrus and subtropical fruits Mark Schaffner Tel: (013) 753 7099/ 7100 Fax: (013) 752 3854 Email: [email protected]
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DISCUSSIONS: SA PBR APPLICATION PROCESS
Question: What are the fees to supply DUS results to other countries? Response: The UPOV prescribed fee for the supply of DUS is 350 CHF; Variety
descriptions are supplied free of charge. Question: What are the mayor challenges encountered by the PBR Office? Response: The Registrar named the following:
The first is administrative challenge that usually arises from most breeders requests for short cuts and preferential treatments
Changes in crop variety denomination when a variety has already been named, sometimes as many as three to four times. A particular denomination can be changed at any time before the issuance of the PBR.
Reluctance to pay the required fee. Delays in submission of samples of plant material as required by the rules
Comment: If DUS testing is done for Variety Listing and PBR on same variety, they use the same DUS results. They do not use molecular tests – wait for UPOV.
Comment: The presenter indicated that an individual company or breeder can sell PBRs to other individuals or organisations.
1.2.3 SOUTH AFRICAN PLANT BREEDERS’ RIGHTS DATA
Elna de Bruyn, Plant Variety Registration Officer in the Plant Breeders’ Rights Office of the Department of Agriculture, Forestry and Fisheries: Directorate Genetic Resources gave a presentation on the following:
Maintenance of Plant Breeders’ Rights Data
Plant Variety Journals
Statistical Data
The full content of her presentation is copied hereunder:
PLANT BREEDERS’ RIGHTS DATA – ELNA DE BRUYN
MAINTENANCE OF THE PBR DATA
4 Databases (Agricultural, Vegetable, Ornamental & Fruit Crops)
Hand system + Electronic Version (Excel 2007)
Information captured:
o Reference No (PT or ZA) o Name & address of applicant o Kind of plant (botanical & common name) o Approved denomination o Country of origin (ZA, US, GB etc.) o Name & address of agent
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o Date of application o Date of PBR grant o Date sole right expires o Date PBR expires o Date of WDR, REJ, SUR, TER o Changes to denominations, ownership, local agent, withdrawals etc.
Hand system as well as electronic versions of databases revised by registrar – ensure correctness and to eliminate errors.
PLANT VARIETY JOURNALS
We publish every quarter – Jan to March, April to June, July to Sept, Oct to Dec
Special Edition – 31 December each year (publish during 1st two weeks of Jan)
The PBR Act prescribes information to be published:
o Receipt of PBR application o WDR of application o Lapsing of an application due to an objection upheld o Rejection of PBR application o Grant of a PBR o Rejection/Refusal to grant a PBR o Notice of a PBR transfer o Notice of change of agent o Approval for denomination change o Termination of PBR o Voluntary surrender o Expired PBR’s
For each action the following detail is published: o Reference No (PT or ZA) o Name & address of applicant o Kind of plant (botanical & common name) o Approved denomination o Name & address of agent o Date of action
Compiled by two PV Registration Officers
Verified by Registrar
Published on website and broadcasted
Very important to note that information is also published quarterly in Government Gazette as well
Purpose of publication – transparency with regard to PBR, provide opportunity to object.
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STATISTICAL DATA
To compile data – four databases are used
Working files are created from original files
Files are merged to one big spreadsheet
o sort according to information required
o example: extract all applications filed in 2010, Titles ceased in 2009, etc.
Provide statistics to o UPOV o Students
o Interested parties
See Annexure B1 for example of Statistical Data
DISCUSSION: PBR DATA
A general discussion followed the presentation regarding the maintenance of Plant Breeder’s Rights data and publication
Question: Was it is necessary to develop a website as is the case in Australia. This, members saw as a good proposal particularly where ornamental crops are involved. Use of photos would distinguish a particular variety from another.. Some participants felt that publication on the website may expose information to unscrupulous individuals who may capture such information for their benefit free of charge.
Proposal: Members proposed a survey to establish whether this could be of any benefit
Comment: It was also revealed that plant breeder’s data is published both in a journal and a government gazette. Publication in journals targets wider audience and is done at reduced costs. On the other hand government gazette are usually for a smaller audience and usually takes longer time to publish due to set regulations system within the ministry.
1.2.4 ENFORCING PBR PROTECTION
At van Rooy, Patent Attorney of DM Kisch Inc., delivered a presentation on the enforcement of Plant Breeders’ Rights protection in South Africa. He highlighted that the transfer of plant material to a customer should always be accompanied with a delivery note while a written document should always accompany an agreement.
The outline of his presentation is copied below.
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ENFORCING PBR PROTECTION – AT VAN ROOY
CASE STUDY
Farmer Pie Rate is contracted to produce GM hybrid maize seed on behalf of Amazing Seed (Pty) Ltd
Hybrid PBR Protected
Traits registered under GMO Act
Traits Patented
Parent seed provided in terms of Seed Production Agreement (SPA)
After 1 year SPA not renewed owing to drop in demand
Mr Pie Rate retains parent seed and multiplies inbred parent lines
Subsequent year Mr Pie Rate produces hybrid seed on large scale and sells seed under designation PR1 to all his neighbours who plant seed in otherwise unmarked bags
LEGISLATION
PBR Act
GMO Act
Plant Improvement Act
Agricultural Pests Act
Patents Act
PBR ACT
EXCLUSIVE RIGHT
The exclusive right to undertake o the production or reproduction; o conditioning for the purpose of propagation; o sale or any other form of marketing; o exporting; o importing; or o stocking for any of these purposes,
of propagating or harvested material.
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WHEN DOES ONE INFRINGE A PBR?
Undertaking any of the actions reserved exclusively for the breeder
includes making repeated use of protected variety in production of another variety
Failing to comply with any term or condition of a licence - NEW BILL S52 – R100,000 AND/OR 10 YEARS
Using an approved denomination of a protected variety in relation to plants or propagating material of another variety or sells registered variety under another denomination
PBR ACT
Process and remedies: o Interdict and damages o S47 - minimum R10,000 damages
SECTION 24A WARRANT Prove Infringement – DNA Sampling
GMO ACT
Permit conditions SECTION 15 WARRANT
PLANT IMPROVEMENT ACT
Regulates packaging and sale of propagating material Certification schemes Variety list SECTION 25 WARRANT
CONTRACT
Sales Agreements License Agreements Production Agreements Technology Agreements Permission CPA & NCA & Competition Act
COMMON/CRIMINAL LAW
Theft Fraud Statutory Crimes Common Law Processes:
o Anton Piller o Rei vindicatio o Sui generis
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STRATEGY
Variety specific: o Trees o Ornamentals o Grain crops
Respondent specific PBR holder specific Focus on desired outcome Planning/planning/planning Selecting right process
LEGAL PROCESS FOR ENFORCING PBR
Letter of demand Action/application or Anton Piller procedure Ex parte rei vindicatio - Procedure Ex parte sui generis - Procedure Statutory warrants Evidence: DNA sampling/analysis Damages claims & interdicts
ANTON PILLER PROCEDURES - NATURE -
Originated in the UK –
Anton Piller KG v Manufacturing Processes Ltd \[1976] RPC 719 (CA) Aimed at the preservation of evidence for trial purposes
o (Usually no ownership in evidence) o No delivery up in ex parte order
Ex parte application in camera Does not act as interim interdict Rule Nisi (return date) Formulate interim/ final order in notice of Motion On return day prove case on balance of probabilities
ANTON PILLER PROCEDURES - REQUISITES -
Prima facie cause of action (i.e. right being infringed/ other delict/ breach of statutory duty)
Respondent in possession of relevant & specified evidence required to prove damages o No real or personal right
Well founded apprehension that evidence will be destroyed if follow normal course
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EX PARTE REI VINDICATIO - NATURE -
Aimed at the preservation of the applicant’s property Ex parte application in camera Goods placed in care of sheriff until return day
EX PARTE REI VINDICATIO - REQUISITES -
Applicant must prima facie prove infringement of right Applicant must prima facie prove right to delivery up Thing must exist Defendant must be in control of thing Reasonable belief that thing will be destroyed/ disposed of if normal course is
followed On return date prove infringement of right and right to delivery up
EX PARTE SUI GENERIS - NATURE -
Aimed at the preservation of property to be delivered up – statutory/common law right
Ex parte application in camera Goods placed in care of sheriff until return day
EX PARTE SUI GENERIS - REQUISITES -
Applicant must prima facie prove infringement of right Applicant must prima facie prove right to delivery up Thing must exist Defendant must be in control of thing Reasonable belief that thing will be destroyed/ disposed of if normal course is
followed On return date prove infringement of right and right to delivery up
STATUTORY WARRANTS
Section 24A of The Plant Breeders’ Rights Act No 15 of 1976 Section 25 of The Plant Improvement Act No 53 of 1976 Section 15 of The Genetically Modified Organisms Act 15 of 1997
“PROPHYLACTIC” MEASURES FOR LIMITING IP INFRINGEMENT
Seed sale & licensing clauses Statutory IP protection (patent, trade mark & PBR) Infringement warnings Public awareness through articles, advertisements & “advertorials” File PBR/patent in time Take out provisional protective direction Upgrade/reassess your agreements & terms Understand the enforcement process Comply with all statutory duties
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DNA EVIDENCE - INTRODUCTION -
“DNA profiling is widely accepted by the courts as a robust and reliable technique. Challenges tend to be on technicalities. Many of the problems encountered in the past have either been rectified, or were due to techniques no longer in use.”
“DNA evidence has been subject of extensive scrutiny by lawyers, judges and the scientific community.”
“Lawyers must be aware of the possible attacks that can be launched against DNA evidence and whether these arguments have any substance.”
An overview of the use of DNA evidence in South African criminal courts – L Meintjes-van der Walt – SACJ – (2008)1
DNA FINGERPRINTING
DNA fingerprinting finds application not only in the criminal courts but also in the civil courts.
Seed companies routinely maintain databases of the DNA fingerprints of all their varieties – useful in court cases.
The key is not in the technology or the allowability of DNA evidence, but in the preparation of the samples.
CASE STUDIES
CASE 1 o Claims against seed company to the value of R25 million o Evidence based on seed collected by farmers themselves o Non-compliance with ISTA rules provided a simple defense
CASE 2 o Farmer crossed two protected commercial hybrids from different companies,
produced and sold unmarked seed from unregistered premises o Seed samples obtained during mentioned ex parte procedures o Subjected to DNA analysis
SAMPLING SEED AS SOURCE OF DNA FOR LITIGATION PURPOSES
Record evidence on how, where, when and by whom the samples were taken and handled
The seed samples should be taken by a certified seed sampler in accordance with ISTA rules
Samples should be stored under prescribed conditions to avoid DNA deterioration Label samples legibly and without ambiguity in accordance with the ISTA rules
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REQUIREMENTS FOR SAMPLING SEED AS SOURCE OF DNA FOR LITIGATION PURPOSES
Use the prescribed/appropriate sampling intensities Use suitable equipment (ISTA approved apparatus) Follow the sampling techniques laid down in the ISTA rules for issuing an ISTA
certificate Perform sample reduction procedures according to ISTA rules
The seed sampling container should be sealed with the prescribed seal and tagged with the following prescribed information:
Address where sample was taken Date and place sample was obtained Size of the lot The number and size of the containers The type of container Species (Suspected and indicated) Variety name Seed lot reference number Kind of marking/labelling and sealing Name of chemical treatment Signature and/or authorisation number of the seed sampler
In the case of a seed lot consisting of one container, at least three primary samples are drawn from the container, namely:
one from the top; one from the middle; and one from the bottom.
Three samples are mixed to form a composite sample. The seed sample container must arrive sealed at the laboratory.
PRESENTING EVIDENCE OF SEED DNA TO COURT
If the protocol followed in the sampling, packaging, transporting, storage, preparation, marking etc. of seed is not conducted substantially in line with the principles set out in the ISTA Rules, the test results could be susceptible to criticism and could be rejected in court as being unreliable.
Compliance with the ISTA sampling rules is therefore necessary if reliance is to be placed on the outcome of subsequent DNA test results and non-compliance could mean the end of a claim using such seed samples as supporting evidence.
SAMPLING NON-SEED PLANT MATERIALS FOR DNA ANALYSIS
Most laboratories use leaves as the main source of DNA Where leaves are absent or senescent in winter, DNA samples could be
obtained from stem bark (phloem) Alternatively seed are germinated and DNA extracted from sprouts/seedlings
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PROPOSAL:
o As far as practically possible, follow the approach prescribed by ISTA when collecting non-seed plant materials
o However, suitable adaptations have to be made o Sampling plant materials in a field could be very laborious in comparison to
seed sampling in a storeroom o Thus, an acceptable sampling methodology needs to be designed and
followed (i.e. Plan ahead for the particular circumstances & prepare your kit & equipment)
o Make use of GPS apparatus for marking fields and sample collection points
SAMPLING NON-SEED PLANT MATERIALS FOR DNA ANALYSIS
Heat, UV radiation, time, humidity and various chemicals negatively affect DNA sample – maintain cold chain and limit contamination
Freeze drying, DNA extraction and analysis should be done in accordance with good laboratory practice (GLP), and acceptable standard operation procedure (SOP)
The samples should, as far as practically possible, be handled by an accredited laboratory (if available) to analyse plant materials
Leaf strips in vials – lyophilised (freeze-dried) Flinders technology associates (FTATM) TECHNOLOGY – (WHATMAN paper
strips impregnated with patented chemicals causing cell lysis and immobilises nucleic acids in paper matrix)
Sample collection is followed by DNA analysis in accordance with tried and tested techniques including: PCR analysis STR typing
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CONCLUSION
If all the prescribed and proposed procedures of sampling and handling of the samples for DNA analysis are followed, then all that is left is to attack the credibility of the science involved, and the acceptability of the science has already been tried and tested and entrenched into law.
CONTACT DETAILS
At van Rooy Patent Director Tel: 012 460 3203 Cell: 082 772 0952 Fax: 011 4603270 [email protected] www.dmkisch.com
PO Box 3668 Pretoria 0001 Suite 3, Parkland Building 223 Bronkhorst Street Nieuw Muckleneuk Pretoria
DAY 1: SESSION 3
1.3.1 SADC DRAFT PROTOCOL ON PBR VS. UPOV CONVENTION
In his presentation Dr Wynand van der Walt of FoodNCropBio made a comparison between the SADC Draft Protocol and the UPOV Convention.
The outline of his presentation is copied hereunder:
SADC DRAFT PROTOCOL ON PBR VS UPOV CONVENTION – DR W VAN DER WALT
WHY PBR:
1. The Universal Declaration On Human Rights:
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ARTICLE 27
Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
2. Piracy: If you do not protect your PBR interests, you will lose it.
3. Secondary international agreements that impact on PBR: WIPO, UPOV, WTO Article 27 (b) 3, ITPGRFA, Farmers Rights, Indigenous or Traditional Knowledge Systems.
UPOV 1991 AND SADC
Differences are due to nature of membership: globally available vs. SADC. Due to this difference the structure of the text is different. UPOV provides basics but members can add items as long as it is not in conflict with UPOV. There is some freedom for national adaptation. Some adaptations are not in conflict.
UPOV: Chapter VIII to Chapter X, Articles 23 to 42, deal with UPOV structure, organization, management, processes.
SADC added Purpose, Administration, PBR register, licensing, compulsory licences, assignment, transfer and surrender of rights, fees, appeals, civil proceedings, offenses and penalties, regulations, protection of existing varieties, amendment of the MOU, and issues that deal with settlement of disputes, withdrawal, entry into force (two-thirds of members signed), and accession.
Definitions: SADC text is in agreement with UPOV 1991 on: Breeders’ right, plant breeder, variety, but adds definitions for agent, applicant, authorization, denomination, National Authority, propagating material, register, SADC PBR office.
Perhaps SADC text can add definitions for territory, this MOU/Protocol, member state. It may also provide clarity by defining (ex Art 27) “on their own holdings” as owned or leased land.
UPOV also defines: this Convention, contracting party, authority, and Union.
SADC generally uses UPOV text for: Scope (all genera and species), Criteria for protection (NDUS and denomination), and Novelty, Distinctness, Uniformity, Stability, Priority, Exceptions to PBR, Scope of PBR, Exhaustion of PBR, Measures relating to commerce, and Nullity/Nullification of PBR.
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1.3.2 COUNTRY REPORTS ON THE STATUS OF NATIONAL PBR
Following are the presentations on the current status of Plant Variety Protection Legislation as conveyed by representatives of the respective countries:
1.3.2.1 MALAWI
This report was compiled and presented by Banda M. H. P., PhD., and P. Mviha, PhD., Department of Agricultural Research Services, Ministry of Agriculture, Irrigation and Water Development, Lilongwe, Malawi. It is reproduced as it was presented.
KEY PROVISIONS IN THE MALAWI PLANT BREEDERS’ RIGHTS DRAFT BILL
THE ACT ENTITLED
To provide for the registration of plant breeders’ rights in respect of certain kinds of plants and the protection of the rights of persons who are registered as holders of such rights: and to provide for matters incidental to or connected with the foregoing.
PART I PRELIMINARY
Malawi Plant Breeders’ Rights, Section 1
Definition of Terms, Section 2
Some definitions:
o “Breeder” means the person or legal entity who bred , or discovered a variety.
o “Hybrid” means the first generation progeny of a cross which is produced under controlled pollination with parents sufficiently uniform to permit repeated production of the hybrid without change in uniformity and stability
o “Minister” means the Minister responsible for agriculture.
o “Stability” means relevant characteristics of a variety that remain unchanged after repeated propagation or, ….at the end of each cycle.
o “Uniformity” subject to the variation that may be expected from the particular features of its propagation, it is sufficiently uniform in its relevant characteristics.
o “Distinctness” means clearly distinguishable from any other variety whose existence is a matter of common knowledge……where relevant at priority date.
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PART II ADMINISTRATION
Minister of Agriculture: This Act shall be administered by the Minister of Agriculture
Appointments: The Minister shall appoint ;
o An Advisory Board
o Registrar
o Other officers: Examiners, Assessors and inspectors
MPBRO: Malawi Plant Breeders’ Rights Office
PART III APPLICATION
Plant breeders’ rights shall be granted only in respect of a plant variety if:
Distinct
Uniform DUS
Stable
New
Name of variety
DISTINCTNESS
It is distinct by at least one characteristic from any other variety whose existence is a matter of common knowledge
UNIFORMITY
Must be sufficiently uniform in its relevant characteristics, subject to the variation that may be expected from the particular features of its propagation
STABILITY
Relevant characteristics must remain unchanged after repeated propagation or, in the case of a particular cycle of propagation, at the end of each such cycle
NOVELTY (SEC. 7 (1)A)
Before the day of application the variety is not available to the public in trade or otherwise for longer than one year or in another country for longer than four years and six years for trees and grapevines.
NOVELTY SHALL NOT BE LOST:
As a result of any sale or disposal to others - o That is the result of an abuse to the detriment of the breeder or successor in
title;
o Agreement for the transfer of the rights
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o Agreement of multiplication
o Agreement for evaluation and testing
o Biological security and official catalogue
o Harvested material for consumption
NAME OF VARIETY
Proposed name may be rejected by the Registrar if:
Is identical with or may be confused with another name
Does not correspond with international code for nomenclature of plants or
Is misleading or creates a wrong impression of the characteristics of the plant concerned or
Conflicts with any law
Applicant may appeal against the decision
PERSONS ENTITLED TO MAKE APPLICATION
Breeder
An assignee of the breeder
Employer of the breeder
Legal representative
APPLICATION: CONTENT
Origins of the plant concerned
Name of Breeder
DUS Tests
Samples
Proposed name
FOREIGN APPLICATION
Origins of the plant concerned
Name of Breeder
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DUS Tests
Samples
Proposed name
Country of origin
APPLICATION: REFUSAL
Does not comply with requirements
Variety is not new (novelty)
Growing the variety would be contrary to general interest of agriculture
Variety needs repeated uses of another protected plant variety
Applicant may appeal against decision
APPLICATION: AMENDMENT
Registrar may authorize amendments of the application before grant of the plant breeders’ rights
APPLICATION: PUBLICATION
Publish in Gazette a notice with:
o Applicant’s name
o Date of application
o Proposed variety name
o Particulars relating to the variety
RIGHTS OF APPLICANT SEC.16
The applicant shall have the sole right to sell, reproduce and multiply reproductive material of the variety concerned from the publication until PBR are granted (provisional protection)
EXEMPTIONS TO PLANT BREEDERS’ RIGHTS
To use as initial source for breeding
To propagate, grow and use for purposes other than commerce
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Farmers may save, sell, exchange and use part of the crop plants
SCOPE OF PLANT BREEDERS’ RIGHTS ART. 22
Sell plants or propagating material
Produce
Export
Duration: 20 years and 25 years for trees and grapevines
PART VIII FINANCIAL PROVISIONS
PART VIII Financial Provisions
PART IX GENERAL
Existing Varieties Art. 56
Regulations
DISCUSSION: PBR IN MALAWI
Question: Some clarification was requested on what the presenter meant when he said that farmers were allowed to save and plant seed.
Response: The statement meant that since small scale farmers do not produce and keep seed for commercial purposes, they therefore are allowed to keep their previous year’s produce as seed (farm saved seed).
Comment: In South Africa, what has been observed is that the small-holder farmers are not the ones who are a problem to PBR but the large scale commercial farmers.
Question: Can the workshop participants working in the Attorney General’s offices guide the other workshop participants on how the problem of delays (ranging from a few months to several years) that it takes before bills are enacted into a law can be addressed?
Response: In Zambia, the Ministry initiating the bill is requested to appoint senior officials to work with officers from the AG’s office to draft and work on the bill. These are officials who can hold regular meetings, and as senior officials they also can make decisions without having to refer back or consult their seniors in turn. This avoids delays in enacting the bill into a law.
Response: In Zimbabwe, the Ministry of Justice’s Drafting Division drafts the Bill Principles which then need the approval of Cabinet before it goes through the whole range of other.
46
Comment: Also noted was that the delays in the processing of bills by the AG’s office occur because certain Ministries’ Bills are given priority over others especially the Bills of the Ministry of Justice normally get first priority.
Question: What is the minimum time required to work on a bill till it gets enacted into a
law?
Response: That depends on whether that bill is from a priority ministry or not. If the Ministry is prioritized, then it can take 5 to 6 weeks. But for non-priority ministries, it can take months or even several years.
1.3.2.2 SWAZILAND
This report was compiled and presented by Ms Maseko, Thembinkosi Gumede, Harry van der
Burg, and Sipho Simelane.
THE PLANT VARIETY PROTECTION SITUATION IN SWAZILAND
PRESENTATION OUTLINE
Background of the country
Seed legislation framework in the country
o National Seed policy
o The Seeds and Plant Varieties Act, 2000 and regulations
o Plant Variety Protection Bill
Conclusion
COUNTRY BACKGROUND
Swaziland is one of the smallest independent countries of Africa with a land area of 1.75 million hectares (ha).
The population is estimated at 1.2 million.
The country is land locked sharing borders with the Republic of South Africa and Mozambique.
The country is divided into 4 agro ecological zones, namely the highveld, middleveld, the lowveld and the Lubombo Plateau.
47
The high and the middleveld are cultivated and are the major food crop producing areas of Swaziland.
The land tenure of Swaziland is largely divided into two, namely Swazi Nation Land (60%) and title deed land (40%).
SEED LEGISLATION FRAMEWORK: THE NATIONAL SEED POLICY
Swaziland has a Seed Policy developed and adopted in 1993 which is being reviewed to encompass:
o The provisions for PVP and GMO’s and;
o To be in line with recently developed policies such as the Poverty Reduction Strategy and Plan, the Comprehensive Agricultural Sector Policy ( CASP), Food Security Policy and others.
The policy provides for the appointment of a National Seed Committee ( NSC) which serves as an oversight authority to guide the development of the national seed industry.
COMPOSITION OF THE NSC
Ministry of Agriculture
Agricultural Research
University’s Faculty of Agriculture
Seed Quality Control Services
Seed Industry
Ministry of Economic Planning
Ministry of Labour
Seed Growers
Seed Distributors
Farmers
MANDATE OF THE NSC
The formulation and updating of the necessary seed policy guidelines.
Development and updating plans to implement the policy.
Monitoring and coordination of national seed institutions.
Commissioning special studies in any aspect of the seed sector.
Facilitating and coordinating donor assistance.
Advising government on any matters pertinent to the national seed industry.
THE SEED AND PLANT VARIETIES ACT, 2000 AND REGULATIONS
The legislation is divided into two parts: o The main act which is subject to Parliament approval broadly outlines the
principles to be followed, appointment of personnel, committees and organizations for the administration of the act.
48
o The Regulations give details of the procedures in production, processing, packaging, labelling and marketing of various seed crops. Minimum certification standards for different seed classes and crop species are stipulated.
o Also prescribed are forms and fees for the different activities of the industry.
SUMMARY OF THE PROVISIONS OF THE ACT:
PART 1
Short title and commencement
Interpretation
Application of Act Appointment of Seeds Registrar
PART II
Registration of establishments in the seed industry.
Application for registration
Terms of registration
Renewal of registration
Requirements relating to registration of establishments.
Termination of registration
Display and return of certificates
Exemption from registration
Prohibition of selling or conducting business. Requirements relating to the sale of seeds
PART III
Provision for recognition of varieties.
Application for recognition of a variety.
Requirements for recognition of a variety.
Consideration and examination of applications.
Examination of varieties by others than the Minister. Recognition of a variety.
PART IV
Establishment of certification schemes.
Provision of schemes.
Power to enter premises, carry out inspections, take samples for analysis and seize substances or articles.
PART V
Establishment of an official seed testing station
PART V1
49
Requirements relating to seed, packaging material, seals and labels.
PART V11
Importation of seed
Exportation of seed
PART VIII
Preservation, inspection and proof of documents.
Appeal against decisions or action of the Registrar or Committee.
Offences and penalties or imprisonment for three years or both.
Pronouncement of Regulations.
PLANT VARIETY PROTECTION BILL
The office of Intellectual Property Rights under the Ministry of Justice, in collaboration with the Ministry of Agriculture, is developing a Bill on Plant Variety Protection which will be presented to stakeholders for their input prior to piloting the Bill to Cabinet for approval. The process has been delayed by redeployment of employees without a proper handover.
CONCLUSION
It is in the country’s interest to speed up the promulgation of PVP legislation since it has a weak plant breeding programme and relies on introduced new varieties.
DISCUSSION: SWAZILAND
Comment: The Swaziland Seed Traders Association (SwaSTA) representative was optimistic that since the SwaSTA has been revived, and is an interested partner in PVP (PBR), the association will also make some efforts to ensure that a PVP (PBR) Bill is drafted and passed into a law.
1.3.2.3 ZIMBABWE
This report was compiled and presented by E. Gubunje, Seed Services.
PLANT VARIETY PROTECTION SYSTEM IN ZIMBABWE
PREAMBLE
50
The Plant Breeders Rights Act Chapter 18:16 of Zimbabwe
Institutional Arrangements
PVP application process o Who is eligible to apply for PBR? o What is the application procedure? o Conditions for granting PBR. o Species eligible for being granted PBR in Zimbabwe.
Number and categories of plants registered
Future plans and emerging issues in the area of PVP.
PLANT BREEDER’S RIGHTS CHAPTER 18:16
Is an Act of Parliament of Zimbabwe
Enacted in 1973 to enable plant breeders to protect varieties bred within or outside Zimbabwe and become functional in 1974 when the PBR Regulations were pronounced
Head of Seed Services is the Registrar of Plant Breeders Rights
Purpose o To acknowledge achievement of breeders of new plant varieties o To make available to breeders exclusive property rights on the basis of a set of
uniform and clearly defined principles
Plant breeders Rights Act can be amended through the approval of the Cabinet as it is an Act of Parliament.
For the Law to function it is enabled by the Plant Breeders Rights (PBR) Regulations, 1998.
The regulations were last revised in 1998.
The PBR Regulations is a Statutory Instrument number 113 of 1998
Amendments to the regulations would require the approval of the Minister of Agriculture
INSTITUTIONAL ARRANGEMENTS
51
APPLICATION PROCESS
52
APPLICATION PROCESS
WHO IS ELIGIBLE TO APPLY FOR PBR
A breeder of the new variety or his assignee, either nationals or foreign
The Minister, where the State is the breeder with regards to Public institutions
APPLICATION PROCEDURE
Made in the prescribed form obtained at Seed Services (PBR 1 & 2) attached to the technical questionnaire
Lodged with the Registrar
An assignee shall furnish such proof as may be required
Specify any foreign country where such application has been deposited
An effective date of an application shall be the date on which the application is received by the Registrar
THE CONDITIONS FOR GRANTING PBR
53
Distinct
Uniform DUS
Stable
Novelty
o 6 years for trees and grapevines
o 4 years for any other plants
Appropriate denomination
o no numerical digits only or patented names
Payment of Application fee
Part IA section 3: Plants in respect of which plant breeders rights may be granted
DISTINCTNESS
Must be clearly distinguishable from any other variety whose existence is a matter of common knowledge, e.g. Flower color, Fruit color, or Leaf shape
A variety may be considered to be clearly distinguishable if the difference in characteristics is:
consistent, and
clear
UNIFORMITY
Must be sufficiently uniform in its relevant characteristics, subject to the variation that may be expected from the particular features of its propagation (Single, double or three way hybrids vs OPVs or vegetative grown plants/ cross pollinated vs self-pollinated)
OFF-TYPES
Where all the plants of a variety are very similar, and in particular for vegetative propagated and self-pollinated varieties, it is possible to assess uniformity by the number of obviously different plants – “OFF-TYPES” – that occur can be distinguished by plant height, flower color, anthocyanin coloration etc.
STABILITY
Relevant characteristics must remain unchanged after repeated propagation or, in the case of a particular cycle of propagation, at the end of each such cycle
This is verified by doing post control evaluations
54
PLANT SPECIES GRANTED PBRS
These are declared under the prescribed kinds of plants in the Plant Breeders Rights Regulations
Presently, the prescribed kinds of plants are:- Aster, apple, barley, bean, citrus, coffee, cotton, granadilla, groundnut, hypericum, maize, millet, oats, paprika, peach, Peruvian lily, potato, protea, rape, rose, sorghum, soybean, statice, strawberry, sunflower, tobacco, trachelium and wheat.
NUMBER AND CATEGORIES OF PLANTS REGISTERED
Name of Specie Total registered Name of Specie Total registered
Maize 118 Aster 15
Wheat 33 Groundnut 13
Tobacco 28 Soybean 30
Cotton 32 Barley 8
Sorghum 11 Peach 11
Cowpeas 13 Sunflower 8
Rosa 564 Potato 9
Nectarine 5 Protea 16
Prunus persica 16 Sweet pepper 3
Bean 25 Rape 1
Apple 3 Millet 5
Granadilla 1 Strawberry 4
Suntop 1 Paprika 1
Hypericum 2 Citrus valencia 1
Boligado 1 Trachelium 3
Cauliflower 1 Plum 1
Capsicum bacatum 1 Tibouchina organensis 1
Eupatorium 4 Fiester 7
Grass 13
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FEATURES OF PBRA
System operates on a voluntary basis – it is the innovator’s choice to apply for rights It is the duty of the holder of PBR to maintain reproductive material of the new variety Use of a protected variety as a source of developing new varieties is not prevented by
the Act (research exemption) The term of protection is 20 years for field crops and 25 years for vines and trees. The
breeder can apply for a five-year extension. At the expiry of the rights, protected varieties become public material
Before plant breeder’s rights can be granted, documentary examination of technical questionnaires is required in addition to plant material for distinctiveness, uniformity and stability (DUS) testing
FUTURE PLANS AND EMERGING ISSUES IN THE AREA OF PVP
Plant Breeders Rights Act Chapter 18:16 was last reviewed in 2001 Need to review the 2001 Act – To conform to the 1991 UPOV Convention for
Zimbabwe to accede to UPOV Status quo: Received comments from the UPOV office and currently preparing to
respond to the comments – this may entail additional amendments to the Law Proposal for SADC seed harmonization could also require policy review To update the PBR Regulations (Second Schedule- section 3) on the list of prescribed
kinds of plants
DISCUSSION: ZIMBABWE
Question: Does the list in the Table shown refer to the number of PBR issued or not? Response: No, it does not refer to issued PBR.
Question: What is the budget for the PBR office? Response: It is difficult to single-out the PBR office budget because other Sections within
the Department also play a role in producing the test results. So, the PBR budget is fused within the department’s budget as a composite budget.
Question: If one applies for both protection and registration of a Plant variety, does one has to pay separate fees?
Response: No, only one fee is paid as DUS testing is not charged.
1.3.2.4 ZAMBIA
This report was compiled and presented by Bruce Chulu Simbunji, Principal Seeds Officer, Plant Breeders Right Office, Seed Control and Certification Institute, Zambia
56
PLANT VARIETY PROTECTION SITUATION IN ZAMBIA
PREAMBLE
The Agricultural sector in Zambia has remained one of the key components for the economic development of the country.
Agriculture is generating between18-20% of the Gross Domestic Product (GDP)
Is Providing a livelihood for more than 50% of the population
In addition, the sector employs about 67% of the labour force
Zambia still has a potential to expand its agricultural production
Of the total land area of 752, 000 square KM, 58% is classified medium to high potential for agricultural production and only 14% of the total land mass is utilized for agriculture
THE SEED INDUSTRY
The seed sub-sector is one of the major contributors to the GDP and is a major source of employment in the agriculture sector
Since 1991, the sector has not only grown but has expanded its systems
The sector has an integrated seed sector that includes both the formal and informal
The formal sector has a well-organised and structured system of research and varietal development, seed production, distribution and marketing involving private seed companies, research and quality control
The informal seed sector is characterised by localized seed production and distribution using various delivery systems involving NGOs, Government and support funded projects, with minimum quality controls
SEED INDUSTRY DEVELOPMENT IN ZAMBIA
Before 1991, Zambia only had the Zambia Agriculture Research Institute (ZARI) and two parastatal companies namely – Lintco and Zamseed
ZARI – research and development in various crops
Lintco – production, processing and marketing of cotton seed
Zamseed – production, processing and marketing of varieties from ZARI
Produced seeds from ZARI
57
After 1991, the economy was liberalised – resulting in many seed companies opening up businesses in Zambia both locally and outside
Presently there are about 20 seed companies
SEED PRODUCTION
Amount of seed production in Zambia has been on the rise in the last five years and in 2010, about 80,000 tons was certified for marketing
Local demand for maize certified seed is about 10 000 tons
The rest is exported to the region
Zambia imports seed especially vegetables and potatoes
A total of 23 new varieties were released in Zambia
SEED REGULATIONS
In Zambia the seed law is enshrined in the Agricultural (Plant Varieties and Seeds) Act (Chapter 236 of the Laws of Zambia)
The Plant Varieties and Seeds Act recognises the importance of both the formal and the informal seed sectors in the delivery of seed in Zambia
Other pieces of legislation that controls the Zambia seed industry are:
o Noxious Weeds Act – CAP 231
o The plant Pests and Disease Act – CAP 233
o The Cotton Act
PLANT VARIETY PROTECTION
Zambia has enacted a national PVP law
The PVP law was enacted in 2007 and is called the Plant Breeder’s Rights Act, Number 18 of the Laws of Zambia
The Act serves to provide for the protection of plant breeder’s rights, the registration of plant varieties
The Seed Control and Certification Institute (SCCI), a department in the Ministry of Agriculture and Livestock has been designated as the Plant Variety Protection Authority and is responsible for the administration of the Act
58
WHAT HAS HAPPENED SINCE 2007?
The PBR office has been established within the SCCI
Some staff within SCCI have been re-assigned and are spearheading activities of the PBR office
Regulations for operationalizing the Act have been done and so far, Statutory Instrument No 46(Forms and Fees) has been issued
We are hoping that by next year the other regulations which were submitted to the Ministry of Justice will be finalised
SI No 46 has helped and made us start implementing the Act
To this regard, on the 18th October 2011, the PBR Act No 18 of 2007 and SI No 46 of 2011 official implementation launch
STATUS OF PLANT VARIETY PROTECTION IN ZAMBIA
So far since the launch, we have received 9 applications
Two companies have made inquiries and will submit their applications before the end of the year
The Institute has continued to conduct sensitization of the PBR Act to breeders, institutions involved in R&D
FUTURE PLANS/CHALLENGES
Appraisal of varieties/cultivars under commercialization in Zambia and list them in the variety register-vegetables/fruits/flowers
Agree and cooperate with some institutions to help in DUS assessment of certain varieties within Zambia and outside
Capacity building for staff
Continue with public awareness on issues relating to IP-plant variety protection among breeders, farmers and other stakeholders
Opening up our PVP system
Fully establish the PBRO and implement the PBR Act
CHALLENGES
Operationalizing the Plant breeder’s Rights Office and implementing the PBR law is still a challenge. We are appealing for support, Bilateral and Multilateral
59
DISCUSSION: ZAMBIA
Question: Is SCCI a semi-autonomous institution or it is a department under the Ministry of Agriculture?
Response: SCCI is a department under the Ministry of Agriculture. Comment: The Zambian Government is against supporting or having too many authorities
or Parastatals.
Question: Were the PBR applications that were received by SCCI from local or foreign companies (requestors)?
Response: The PBR applications were local applications from both the public and private sector. Only enquires were received from outside/ foreign companies.
DAY 2: SESSION 1
2.1.1 PRACTICAL COMPLEXITIES IN NDUS AND EDV
Dr Wynand van der Walt delivered a presentation on “Practical complexities in NDUS and EDV”, this combined and replaced the scheduled two first presentations of “NDUS Practical Issues” and “Complexities regarding NDUS”
PRACTICAL COMPLEXITIES IN NDUS AND EDV – DR WYNAND VAN DER WALT
MEASURING ONE VARIETY AGAINST ONE OR MANY COMPARABLE VARIETIES
Plants are living things What we see and measure is the end result of the genetics, environment, and their
complex interaction = Phenotype PHENOTYPE IS SUBJECT TO MANY VARIABLES
NDUS is mostly assessed at one site Some variables change at other environments Planting dates, temp, water/irrigation Need uniform soils DUS Trials must be perfectly managed, weed control, pest and disease control
VEGETATIVE PROPAGATING SPECIES
Genomes more complex, variable Genomics subject to somatic or germline mutations May affect stability over generations
60
EXAMPLE OF NO PHENOTYPE DIFFERENCES – 1
Wheat Some common germplasm sources used >> limited diversity within groups Lines not 100% homozygous, inherent variability Old system: phenotype + patterns on grain Early 1990s moved to include grain storage protein analyses >> phenotype plus
protein elisa >> differentiate 55 varieties
EXAMPLE 2 – WHEAT
Tugela vs. Tugela DN Phenotypes very close Critical deciding factor = single gene for resistance to Russian Wheat Aphid in
Tugela DN – could be field tested, now testable on DNA or protein
EXAMPLE 3 – MAIZE AND SOYA BEAN
Some companies sold same hybrid + or – Bt gene: not 100% isolines but phenotype very close
Testable for presence of promoter (DNA) of Bt protein (Elisa) Maize genetic seed purity tests using isozymes (CSIR contract work) Glyphosate tolerant soya Testable for presence of promoter of EPSPS gene
EXAMPLE 4 – GROUNDNUTS
Several S.A. varieties had same origin = Natal Common Sets of marker genes now established, not yet in use
PROBLEMS IN MOLECULAR TECHNIQUES
How many marker genes is enough? What test: RAPD, AFLP, Satellites, PCR? Need perfection in DNA technology: use certified reference material (probes,
primers), clean up equipment, PCR calibration, DNA extraction and purification. Inadequate sampling >> not representative Cost: Dipstick R100 +, RT-PCR R4000 + per sample; add sampling cost Only 2 S.A. labs acknowledged by DAFF
COST PROBLEM IN MOLECULAR TECHNIQUES
I submit DNA and protein profile plus phenotype of my new variety Registrar needs to test mine against 10 comparators Will the breeders of the 10 also submit their old varieties’ DNA and protein
profiles?
61
ESSENTIAL DERIVATION
Predominantly derived from the Initial Variety (IV), retaining expression of essential characteristics
Clearly distinguishable from the IV Except for differences due to derivation, conforms to IV in expression of essential
characteristics
WHAT COMPARED, MEASURED?
UPOV is based on phenotypic differences between new and comparators = phenotypic distances
EDV is based on genetic distances
DISPUTE PROBLEMS
Complainant to take action – has burden of proof Defendant counters this claim – he has reverse burden of proof
CATEGORIZING GENETIC DISTANCES?
French system for maize: o > 90% = EDV o 82 – 90% = unsure, take care o <82% = safe = Non-EDV
Tomatoes: >85% = EDV, 80 – 85% = unsure, <80% = safe if unsure; talk to the breeder of the IV Question: percentage of what??
NEED BASELINE DATA
Information on phenotypically molecular, physical, physiological natural variability
Know the molecular, physical, physiological profiles of your new variety (or your PBR variety)
Cardinal rule: keep complete, clear records of the breeding progression up to your new variety
IDEAL GUIDELINE
One threshold o above is EDV, o below is safe
Note: be prepared for expensive disputes; train your legal advisors (extracted from ISF guidelines)
LOUSY COMMUNICATION + MISINFORMATION
“Do you know of anything on earth which has not a dangerous side if it is mishandled and exaggerated?” - Sir Arthur Conan Doyle
62
DISCUSSION: PRACTICAL COMPLEXITIES IN NDUS AND EDV
Question: Does UPOV use only phenotypic characteristics on EDV? Response: UPOV uses patents, UPOV characteristics and other characteristics. It is
recommended to gather as much information as possible in different environments (5-10 environments) to take care of, e.g., in wheat where vernalisation may be needed. Use isozyme, genetic route with markers.
Comment: Morphological descriptors of crops such as cowpea are available while on the molecular route, there are accredited laboratories in the Republic of South Africa that can be used.
2.1.2 GLOBAL STATUS AND IMPACT OF PVP
Dr Evans O. Sikinyi reported on studies done that demonstrated the positive impact of Plant Variety Protection and UPOV membership on plant breeding in the countries that had introduced PVP and joined UPOV.
Key elements of his presentation are copied hereunder:
GLOBAL STATUS AND IMPACT OF PVP – DR EVANS O. SIKINYI
UPOV MISSION STATEMENT
“To provide and promote an effective system of plant variety protection, with the aim of encouraging the development of new varieties of plants, for the benefit of society”
UPOV MEMBERSHIP:
Increased from about 8 in 1974 (South Africa was 10th in 1978) to 70 in 2011; number of PBR varieties increased from about 7 000 to 85 000 in 2010.
63
MEMBERS OF UPOV (GREEN) INITIATING STATES & ORGANIZATIONS (BROWN)
Newest Member: Peru (as of August 8, 2011)
DEVELOPMENT OF PLANT VARIETY PROTECTION
PBR Titles in Force: All UPOV
0
10'000
20'000
30'000
40'000
50'000
60'000
70'000
80'000
90'000
100'000
1974
1977
1980
1983
1986
1989
1992
1995
1998
2001
2004
2007
2010
To
tal
nu
mb
er
of
titl
es i
n f
orc
e
0
10
20
30
40
50
60
70
80
Nu
mb
er
of
UP
OV
mem
bers
Titles in Force: All UPOV
Number of UPOV members
64
FARMERS, GROWERS
PLANT VARIETY PROTECTION SITUATION
70 members of the Union (69 States and the European Union) 15 States and 1 intergovernmental organization (OAPI: 16 States) have initiated
the procedure for becoming members of the Union 21 States and 2 intergovernmental organizations have contacted the Office of the
Union for assistance in the development of legislation on plant variety protection IMPORTANCE OF PLANT BREEDING
Applications: All UPOV
0
2,000
4,000
6,000
8,000
10,000
12,000
14,000
1968
1970
1972
1974
1976
1978
1980
1982
1984
1986
1988
1990
1992
1994
1996
1998
2000
2002
2004
2006
Europe: EU 27
Europe: Non-EU 27
North America
Asia / Pacific
Latin America
Africa
Near / Middle East
NEW VARIETIES
CONSUMERS
Tech
nolo
gy T
ransfe
r
• Yield • Profitability • Resistance to
pests and diseases
• Stress tolerance • Harvestability • Crop quality • Input efficiency • Variety diversity • New markets
…etc.
BREEDERS
65
Plant breeding is long and expensive
BUT
Plant varieties can be easily and quickly reproduced
Breeders need protection to recover investment
REPORTS ON STUDIES CONDUCTED IN INDIVIDUAL COUNTRIES
PBR impact studies were done in Argentina, China, Kenya, Poland, Republic of Korea and Canada. Data available in UPOV publications.
o The Report showed that the introduction of PBR and UPOV membership increased the diversity of breeders, as well as breeding activities by plant breeders and researchers.
IMPORTANCE OF PLANT VARIETY PROTECTION AND UPOV
REPUBLIC OF KOREA
Republic of Korea 1996 to 2001: Government research stations investment in breeding was stable at Won 60 - 70 million, company investment increased from about Won 128 to 504 million. Rose breeders numbered about 8 in 1995 and rose to 23 when PBR was enacted in 1996 (company breeders 13, private individuals 4), then to 27 when Republic of Korea joined UPOV. Rice breeders increased from 27 to 44 from 1998 to 2004.
NEW VARIETIES
BREEDERS
CONSUMERS
FARMERS, GROWERS
Tech
nolo
gy T
ransfe
r
• Reduced food
cost • Efficient land use • Nutritional
quality, taste etc.
• Storage quality • Diversity of
products
66
Breeding Investment in Chinese Cabbage
Number of Rose Breeders
CHINA
Applications for PBR rose from about 110 in 1998 to 580 in 2003, this increase coming from government, private companies, individuals and universities.
67
Number of Breeders in Henan Province of China
Maize Wheat
China: Number of Applications by Categories of Applications (Agriculture)
ARGENTINA
Argentina: First PBR granted in 1982, fluctuated between about 10 and 70 annually 1983 to 1991, then jumped to 140 after presidential PBR decree in 1992, rose to 195 when Argentina joined UPOV, much of growth coming from foreign applicants, some decline since then.
Number of other breeders
Number of breeders at the Provincial Research Institute
68
Argentina: Number of Titles Granted
KENYA
Kenya: PVP Act 1997, 1999 UPOV member. Cut flower exports due to PVP giving access to foreign varieties = 1997 42 000 tons value KSh12 billion, 2008 116 000 tons, value Ksh40 billion
Export of Kenyan Cut Flowers
-
20,000
40,000
60,000
80,000
100,000
120,000
140,000
0
5
10
15
20
25
30
35
40
45
1987
1989
1991
1993
1995
1997
1999
2001
2003
2004
2005
2006
2007
2008
Vo
lum
e (to
ns)
Valu
e (B
illi
on
Ksh
s)
Figure 2: Export of Kenyan Cut Flowers
Value (Billion (Kshs.)
Volume (Tons)
PVP Operational
UPOV Membership
69
0% 20% 40% 60% 80% 100%
Ornamental
Plants
Food Crops
Vegetable
Fruit crops
Others
3 988
74
194
467
49
8 679
32
419
143
244
551
527
327
237
187
79
245
89
128
186
574
82
188
31
181
140
17
36
48
12
Individual Seed company Local government
National government Food company Agricultural cooperative
JAPAN
Number of Registrations by Breeder (Japan)
Japan: PBR breeders cover individuals, national government, seed companies, food companies, local government, agricultural coops. Numbers of PBR = 977 on food crops (527 for local government), 1253 vegetables (419 for seed companies), 1054 fruits (467 for individuals, 14011 ornamentals (3988 for individuals, 8679 for seed companies), 823 other species (244 for seed companies). Total PBRs = 18 118. Note high involvement of individual breeders and seed companies, little by national government, local government only prominent in food crops.
BRAZIL
Brazil: PVP law 1997/8 = production area 35 million ha, crops 76 million tons; 2006/7 = area 76 million ha, volume produced 130 million tons. For every $1 investment, $6.4 benefits. Technologies from Embrapa (=NRO) created 85,000 jobs. Brazil agribusiness handles $750 billion per annum and represents 17% of all employment, agriculture is 28% of GDP, and agricultural sector is 3rd biggest agricultural-exporter globally.
70
Brazil: Hectares planted (green), Tons Harvested (red) CONCLUSIONS
Intellectual property protection is crucial for a sustainable contribution of plant
breeding and seed supply. An effective system of plant variety protection is a key enabler for investment in breeding and the development of new varieties of plants. A country’s membership of UPOV is an important global signal for breeders to have the confidence to introduce their new varieties in that country.
KEY POINTS: Introduction of UPOV system for plant breeders rights encourages more
investment in breeding, more breeders, more diverse crop breeding, more and better varieties, increased farmer income, rural development, and development of international markets. Access to foreign PBR varieties (especially ornamentals) supports production for exports, and simulates further breeding by local breeders.
DISCUSSION: GLOBAL STATUS AND IMPACT OF PVP
Question: What is your message to take home to the politicians for Swaziland, Malawi, and even Zambia that have not yet completed the process and if you could talk about food security and PVP.
Response: Agriculture is considered as a backbone of economy in many African countries. Seed is a major input into any agricultural activity and appropriate varieties need to be available. Malawi for example had done very well in recent years as a result of the government effort in providing seed and other inputs.
37,9 38,535,6
39,1 38,5 37,0 36,6 35,0 36,9 37,8 37,8 40,243,9
47,4 49,0 47,3 45,4
57,9
68,4
68,3
76,081,1
73,6
78,4
76,6
82,4
83,0
100,3
96,7
123,2
119,1113,9
119,9130,0
90/91 91/92 92/93 93/94 94/95 95/96 96/97 97/98 98/99 99/00 00/01 01/02 02/03 03/04 04/05 05/06 06/07*
P r
o d
u c
t i o
n A
r e
a
( in
mil
lio
ns o
f h
ecta
res an
d
ton
s )
PVP Law
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Question: Dr. Catherine Mungoma - It appears that most of the varieties registered are of high value crops such as ornamentals.
Response: The desire to manage rights for ornamentals has been overwhelming with private players just as with hybrids where parental lines are not disclosed. In Kenya for example, Kenya Agricultural Research Institute (KARI) where hybrids are being licensed to private companies which benefits both the institute and the farmers. There are more registrations on ornamentals than maize due to the vast interest by private companies.
Comment: Dr W. van der Walt - Multinationals spend millions of dollars a day on research and there is a need for African institutions to partner with them as they do not have the suitable germplasm which is available at these African institutions.
Response: There is an observation that more breeders are coming up and working in partnership with international organizations in the development of new varieties.
Question: E. Mtetwa - In UPOV, the European Union is entered as a block, is there any role for individual countries?
Response: Each country can make a choice of either applying as an individual country or as a block.
2.1.3 LICENSING OF PUBLIC VARIETIES
Eddie Goldschagg, Technical Manager of SANSOR reported on the current system of licensing of public varieties in South Africa.
The presentation is copied hereunder:
LICENSING OF PUBLIC VARIETIES – EDDIE GOLDSCHAGG
BACKGROUND
Institutes of the Agricultural Research Council (ARC) developed new varieties
o SGI, GCI, RFI, RVOPI, NITC
As a parastatal organisation – unethical to compete directly with the private sector.
Challenge - to have their varieties marketed.
Not equipped to produce and market.
Solution – head licences to SANSOR
The purpose of licensing of varieties to SANSOR
o The orderly, rapid commercial introduction of new varieties of seed crops, as developed by the relevant institutes of the ARC, in order to derive optimal benefits from the advantages of new varieties for the farmers and in the market.
o To create mechanisms for collection of royalties for the ARC.
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AGREEMENTS
Schedule A: Main Agreement (ARC/SANSOR)
Schedule B: Head Licence per variety (Institute/SANSOR)
Schedule C: Sub-Licence per variety per company (SANSOR/Company)
Schedule D: Test Agreement
Schedule E: Research and Breeding
MODUS OPERANDI
The Head Licence is assigned to SANSOR
SANSOR and the ARC (Licensing Committee) reach consensus on the way licensing will be handled
o open to all applicants with fixed royalty,
o exclusive licensing to a successful tenderer
Invitation to tender send out by SANSOR
Institute provides technical information, performance data, and recommendations regarding the variety, and SANSOR makes this document available to prospective applicants/tenderers.
SANSOR receives the tenders.
ARC – SANSOR Licensing Committee considers applications/tenders and come to a decision on awarding sub-licence/licences, and SANSOR informs in writing the applicants/tenderers.
SANSOR handles all documentation and administration.
SANSOR monitors seed production and collects royalties.
SANSOR provides international liaison as may be requested.
LICENSING COMMITTEES
Licensing Committees under chairmanship of the ARC Institute comprise primarily two officials from the SANSOR office and three officials from the relevant ARC Institute that had developed the variety, and usually also includes a plant breeder from that institute.
The ARC-SANSOR Committee also serves as controlling body and body for appeals.
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OPTIONS FOR LICENSING
Sub-licences are usually awarded in one of the following ways:
o To all applicants who apply (open).
Capacity, knowledge
o Exclusive to one party on the basis of successful tender bid.
o To a consortium.
CONDITIONS FOR LICENSING
Company o Payment of royalties
o Performance clause
o Compulsory Certification (Table 8)
o Period (PBR validity)
ARC o Maintenance of Breeder Seed, supply of Pre-Basic Seed
ROYALTIES
The variety can be purchased completely, i.e. a once-of amount is paid for the variety
A basic amount plus annual royalties
Only annual royalties
Annual royalties or a minimum annual amount, whichever is the highest
A sliding scale based on sales volumes
CURRENT STATUS
At present SANSOR is administering some 53 varieties and 85 sub-licences.
DISCUSSION: LICENSING OF PUBLIC VARIETIES
Question: How are royalties determined? Response: This is derived from an agreed percentage of total sales made. However, in
some cases such as with groundnuts it is different as not all the groundnuts produced under certification is sold as seed. Under such a case, the royalty is based on a percentage of two times the price for commercial Choice Grade groundnuts.
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Question: How is the decision on whether a variety shall be exclusively marketed or shall go on open to all applicants?
Response: This is determined by a Cultivar Allocation Committee. With open varieties the problem is that no one takes responsibility for the advertising thereof.
Question: How long is the life span of open tenders? Response: This is determined by the agreement – Usually up to the end of the validity of
the PVP. However, if the performance of the variety or company deteriorates it may be terminated sooner.
Question: How does SANSOR get revenue? Response: From various sources which include membership fees, certification
registration fees, commission on the collection of royalties, sales of labels, training, etc.
Question: How are non-exclusive varieties named? Response: They are all named by the same name, as allocated by the breeding institute. In
the case of exclusive varieties they can be named by the particular company according to the pattern that exists within it in order to maintain their brand.
Question: Is it possible to license a variety that is not yet protected? Response: The answer is affirmative and the buyer could then seek protection.
DAY 2: SESSION 2
2.2.1 STATUS AND IMPACT OF PBR IN KENYA
Dr Evans O. Sikinyi of Seed Trade Association of Kenya reported on the status and impact of Plant Breeders’ Rights in Kenya.
Key elements of his presentation are reflected hereunder.
KENYA: STATUS AND IMPACT OF PBR - DR. EVANS. O. SIKINYI
ROLE OF AGRICULTURE IN KENYA
Economy Basically Agrarian, Services & Industry
70% population, Rural
Over 40% of GDP
70% of Labor agriculture or Agric related
60% of total exports
HORTICULTURE
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Major Export, in Value ahead of tea & coffee
Close to 45% of Export to EU market for Cut-flowers
Volume Decreased but Value increased
Exports 4% of total production
TOTAL LAND 58 M HA
11 M ha receive adequate rain
7.0 M ha in agric production
AGRICULTURE CONTRIBUTION
26% of GDP directly
27% links with manufacturing, transport & services related
60% of export earnings
CHALLENGES
INCREASED POPULATION
20M in 1970s to 42 in 2009
Increased production/ expansion in land
CLIMATE CHANGE
Unpredictable weather patterns, crop failures
Need new crops, appropriate varieties & production technologies
EMPLOYMENT
Diversification in crops
Labour intensive, 2m directly in Horticulture, 3.5m indirectly
PRODUCTION INPUTS
Appropriate varieties
Quality seeds
Costly fertilizers & other inputs
FACING THE CHALLENGES
Development of Seed Industry
Encouragement of Breeding
Plant Variety Protection o PBR law in place, office operational 1997 o Membership to UPOV, 1999
Encouragement & support of Exports o Institutional support : HCDA, KEPHIS o Legislative: PVP,
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o Economic reform: Duty waivers
BACKGROUND TO PVP DEVELOPMENT
Protection of plant varieties under the Seeds and Plant Varieties Act of 1972
Grants rights to persons breeding or discovering new varieties of plants.
1991 – The Act was revised.
1994 – Regulations in place
1997 – PVP office established. May 1999 – Kenya acceded to UPOV 1978 .
Act now amended, due in Parliament
PVP IMPLEMENTATION CHALLENGES
Legislation o Time to review or make regulations
IP Awareness o Breeders, institutions, policy makers
Lack of Institutional IP policy o Breeders, institutions
Capacity, Human & infrastructure
IMPACT OF PVP IN KENYA
Number of seed merchants increased from 13 in 1998 to 40 in 2003/4, 61 in 2005/6, and 75 in 2008/9.
Enhanced Access to foreign and number of new varieties o Increased production o Increased choice o Production in new frontiers o Germplasm for further breeding
Encouragement of domestic breeders o Increased number of applications
Number of Applications
Year Domestic Foreign Total
1997 11 128 139
1998 42 33 75
1999 16 45 61
2000 24 45 69
2001 164 33 197
2002 11 27 38
2003 7 25 32
2004 16 44 60
2005 53 44 97
2006 0 54 54
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Kenya: Number of PBR Applications
Number of PBR Applications in Kenya from 1997 to 2008
Plant Species Number of Applications
0
20
40
60
80
100
120
140
160
180
200
1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008
Figure 35. Kenya: Number of Applications
Non-residents
Residents
PVP operational
UPOV Membership
2007 28 64 92
2008 4 62 66
Total 376 604 980
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(1997-2008)
1 Rose 460
2 Maize 132
3 Tea 39
4 Wheat 32
5 Alstroemeria 31
6 Limonium 24
7 Pyrethrum 23
8 French bean 20
9 Chrysanthemum 19
10 Calla lilies 15
Export of Kenyan Cut Flowers
Present summary of applications of 938 PBRs: Kenya 372, Netherlands 300, Germany 124, France 77, balance lesser number from various countries.
Forex, new markets, created employment, exports in 2002 KSh216 mill., in 2008 KSh 1 billion, primary employment 2 million.
Hectares planted: Fruit stable at 140 00 hectares, vegetables increased from 80 000 to 250 000ha. Cut flowers increased from 225 to 250 000 ha.
-
20,000
40,000
60,000
80,000
100,000
120,000
140,000
0
5
10
15
20
25
30
35
40
45
1987
1989
1991
1993
1995
1997
1999
2001
2003
2004
2005
2006
2007
2008
Vo
lum
e (to
ns)
Valu
e (B
illi
on
Ksh
s)
Figure 2: Export of Kenyan Cut Flowers
Value (Billion (Kshs.)
Volume (Tons)
PVP Operational
UPOV Membership
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IMPACT OF PVP IN KENYA
Increased collaboration between local, foreign breeders and international research institutions.
o Breeding, testing and release of varieties Increased number of released varieties & crops Improved qualities of released varieties -
o Drought, pest & diseases, salinity, QPM A number of institutions with IP Policy in place
o Increased Investment in breeding by Private Reduced in public sector Increased breeding entities and new types of breeders
o Number doubled between 1996 and 2005
SUMMARY
Many challenges due to changing World o PVP introduction has contributed to increased Breeding, testing and release
of varieties and crops, introduction of superior foreign varieties, to meet the demands
o Resulted in increased production, foreign exchange earnings, employment o A vibrant seed industry o Plays a major role in meeting the challenges of the changing world
DISCUSSION: KENYA – STATUS AND IMPACT OF PBR
Question: How much money do companies invest in research work? Response: Companies are mostly reluctant to give their information for security reasons.
When the national impact assessment was done in Kenya it was difficult to come up with the actual expenditure costs incurred by companies in their research work activities. The national regulatory authorities could be the source of such information.
Question: Were there any problems encountered when PVP came into force in Kenya? Response: When the Law came into operation it allowed the application for Plant
Breeders Rights on existing varieties in 2001. Therefore many breeders got their varieties protected. In addition the Licencing policy was adopted to solve disputes after a forum on clarity of contractual agreements. Hence illegal production of protected varieties was resolved.
Question: How much seed of protected varieties are farmers allowed to save or sell? Response: Kenya joined UPOV under the 1978 Convention where farmers’ privilege is
silent on the issue. However in practical terms no selling of horticultural/ ornamental cut flowers is done following contractual agreements.
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Question: Considering the issue of Farmer’s Rights, how is Plant Variety Protection System affecting farmers in accessing their indigenous varieties?
Response: Plant Variety Protection system is not affecting in any way the accessibility by famers to their landraces. Protection is for new plant varieties. Famers can save seed or sell seed of their local indigenous varieties.
2.2.2 IMPLICATIONS OF FARM SAVED SEED
Patrick Graham, Director of Sensako Seed Company gave a presentation on the implications of farm saved seed, and in particular by commercial farmers, to the research and development of new varieties.
His presentation is copied overleaf.
FARM SAVED SEED: IMPLICATIONS - PATRICK GRAHAM
STORY LINE
1. Some Observations
2. Impact of Farmers Privilege
3. Consequence of Farmers Privilege
4. Solution – License Model
SIGNIFICANT HIDDEN VALUE ASSOCIATED WITH PBR INTELLECTUAL PROPERTY
1% of the value of the SA National wheat crop amounts to approximately R50 million (1.8 million tons x 1% x average price of R2800/ton)
How many percentage points does wheat breeding gain?
Yield – Yield gains have increased 10% over the last 10 Years, of which 50% can be attributable to genetic gain (5% x R50 Million = 250 Million per year??).
Disease – Diseases such as rusts evolve to overcome existing resistance in plants. In addition, new strains are constantly being discovered (UG99). Value of breeding programs can be truly appreciated when a county is facing decimation of domestic production due to disease (????% of crop?)
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Conclusion - Significant value accruing to primary producers (farmers) resultant from PBR intellectual property
o Many 10’s of times greater than the cost of the R&D Extraction – Extraction refers to the amount of flour that can be extracted from a wheat
kernel when it is milled.
Any improvement in the extraction rates translates to more flour for the same amount of wheat grain purchased.
Since 1995, extraction has improved by between 3 and 5% for South African cultivars.
o A 1% improvement in extraction amounts to (1.8 million tons * 70% (extraction rates) x 1% x R5000 (flour cost) = R63 million. 3-5% = R190 – R 315 Million annually.
Hardness has improved by 2-3% o Improved water absorption means more loaves produced from a given
volume of flour
Dough/mixing time has reduced from 3.5 – 2.6 minutes o reduces energy used in mixing and cooling
FOOD SECURITY
It is probable that greater reliance will be placed on domestically grown food in the future.
World food demand expected to grow by 70% by 2050 (FAO)
In a world characterized by changing weather patterns, and adapting & increasing disease patterns and levels of resistance
o Over the last 50 years, food production internationally has increased by an average of 2% per year with half coming from genetic improvement and the other half coming from better crop management, such as soil management, fertilizer, pest & disease management and seed treatments. (VOLXV11 International Seed Federation)
There is some doubt that genetic improvement can continue at the rate of 1% per year without the aid of technological advancements in plant breeding, seed treatments & other.
POPULATION 2050
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“The choices that today's generation of young people aged 15-24 years make about the size and spacing of their families will determine whether Planet Earth will have 8, 9 or 11 billion people in the year 2050.”
By 2050 it is estimated that the earth’s human population will be 9.07 billion.
62% of the people will live in Africa, Southern Asia and Eastern Asia - same as if all the world’s current population (6 billion) lived just in these
regions.
CEREAL EXPORTS
“Exports are largely inversely proportional to Population in 2050.”
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“Can current world cereal exporters meet anticipated future world food demands?”
Cereals include wheat, rice, barley and maize.
The United States, France and Australia are the three largest net exporters of cereals. No region dominates the map of cereal exports.
“Interesting trend in R&D expenditure and Food exports??”
R&D EXPENDITURE
Research and development is what scientific and technological and medical companies engage in to find new designs. This can be an expensive pursuit, given the costs of materials, machines and skilled specialists.
Is there a R&D friendly environment in Africa?
BEWARE THE UNINTENDED CONSEQUENCE!!
Intervention in a complex system tends to create unanticipated and often undesirable outcomes
1. Governments often enact legislation meant to protect their most vulnerable changes but that instead ends up hurting them.
Americans with Disabilities Act (ADA) which was intended to safeguard workers from discrimination (noble intention) but which resulted in few jobs for people with disabilities. Why – employers were so worried that they couldn’t discipline/fire workers they avoided hiring them in the first place.
US Endangered Species Act is actually endangering species rather than protecting them since it is onerous on owners of potential habitats that they rather cut down potential habitats. (Ferruginous pygmy owl and red-cockaded woodpecker).
2. US Prohibition is the 1920’s. Incentivised illegal activities resulting in greater organised crime.
3. “Farmers Privilege” ?
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IMPACT OF FARMERS PRIVILEGE
Seed is a biological product and has (theoretically) an infinite lifespan for OPV’s. With Farmers Privilege, farmers can plant Farm Saved Seed.
– No royalties payable to developer – Results in two sources of seed at very different costs – Commercial seed at high cost - Commercial seed seller must recoup development
costs, grower premiums, transport and logistic costs, sales costs, etc. – farm saved seed at low cost – Farmer incurs opportunity cost (grain price) – OPV seed price is therefore very Price elastic – Two prices for essentially the same product. – Margins on commercial seed are small as any price increase triggers an increase
in farm saved seed with a consequential fall in commercial seed sales. RESULT = low prices and low volumes of commercial seed sold.
– Recoupment of R&D??
CONSEQUENCE OF FARMERS PRIVILEGE
I submit that Farmers Privilege is the single greatest threat to sustained wheat (and other open pollinated crop) development and production in South Africa.
Why? • ISF – There is some doubt that genetic improvement can continue at the rate of
1% per year without the aid of technological advancements in plant breeding, seed treatments & other
1. It is an obstacle to the adoption of new technologies (GM or other) as it creates a disincentive to both
a) Technology owners, and b) PBR holders - Need for technology adoption
2. In is an obstacle to sustainable plant breeding (open pollinated crops) in South Africa resultant from its impact on sales volumes and prices.
FP = DISINCENTIVE TO TECHNOLOGY OWNERS (GM)
Open/self-pollinating crops have essentially the same genetics as the seed from which it was produced.
Once an OPV is transgenically adapted – trait is incorporated/fixed at a genetic level and will therefore be present in 2nd and 3rd generations etc.
Users of farm saved seed will therefore derive benefits from trait without paying for it.
Potential issues with stewardship of farm saved seed.
Collectability of tech fees in OPV = major stumbling block in obtaining new technology as there is no guarantee of remuneration for benefits accruing to users of farm saved seed.
Conclusion
Without a mechanism to safeguard stewardship and the collection of technology fees on farm saved seed, it is unlikely that holders of beneficial technologies will invest in OPV’s.
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FP= DISINCENTIVE TO PBR OWNERS TO ADOPT NEW TECHNOLOGY
New technology invariably comes at a cost.
Higher costs mean higher commercial seed prices as the cost of the new technology is passed on to the user of such seed.
– No additional margin to PBR Owner – Higher commercial seed prices create a greater price differential between
commercial and farm saved seed prices which typically triggers higher usage of Farm Saved Seed.
Higher levels of farm saved seed means lower volumes of commercial seed sold by PBR holders.
Lower volumes of commercial seed being sold mean lower revenues for producers and sellers of commercial seed (PBR owners).
Conclusion No incentive for PBR owner to adopt new technologies as their adoption would
lead to an increase in FSS and consequent fall in revenues
FARMERS PRIVILEGE & SUSTAINABLE PLANT BREEDING
It takes on average between 10 and 15 years to develop a new wheat variety from conception to commercialization.
In determining the viability/sustainability of breeding programs one needs to answer two questions. Namely
i. “Can R&D costs incurred today be recouped on commercialization of new cultivars?” which may be as much as 15 years later;
ii. “Will the researcher make a return on his investment?” iii. If the answer to either answer above is no – then the logical business
decision is to invest research costs elsewhere.
The South African wheat market has over the last 15 years, been characterized by falling areas under cultivation, lower seeding rates and higher levels of farm saved seed resultant from Farmers Privilege.
Developing markets – do they justify the investment?
Conclusion
If current trends in farm seed retention, hectares cultivated and seeding rates are extrapolated 10 years into the future, it is uncertain whether the costs currently being sunk into research and development can be recouped.
Obstacle to local R&D investment.
COMMERCIAL SOLUTION
Alternatives considered were: Increase commercial price of seed.
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– Will result in an increase in FSS and less commercial seed sold. Not sustainable. Drop price of seed and increase volumes.
– Will halving the margin on commercial seed double volume sales. No. Less income.
Remove Farmers Privilege in PBR Act or amend not to apply to commercial producers – Requires amendment to PBR Act. Unlikely.
Extended royalty (Argentina). – Nice, but how to ensure compliance? Right to access farms etc. Relies on trust?
End Point Royalty (Australia) – Fair as it only applicable to commercially sold grain and therefore only affects commercial farmers who are clearly benefiting from research. – Requires amendment to PBR Act to ensure compliance at industry level. Unlikely.
None of above is a commercial solution.
REQUIREMENTS OF A WORKABLE SOLUTION
In searching for a new model, we wanted to address the following:
Company should have control over the process – i.e. non-reliance on external parties & processes.
Able to measure compliance (need to be able to prove non compliance)
Be easily enforceable.
Incentivise producers to comply.
Work within parameters of standard practice of keeping seed back (FSS).
Address farmers privilege and thereby - o Address collectability of technology fees (Technology owners) o Address adoption of new technology issues (PBR owners) o Address sustainability issues
Solution = reliance on contract law under a license model between company and
farmer where – o Company retains ownership of seed, o Company allows producer/farmer to use the Company’s seed in return for
i. Payment of a license fee, and ii. Subject to certain terms and conditions.
LICENSE MODEL – MAIN CONCEPTS/POINTS
Ownership of seed vests in Seed Company at all times, and seed is supplied in return for payment of a license fee and subject to certain terms and conditions;
Commercial Producer (Farmer) Rights o Plant seed for sole purpose of producing a harvest to produce Harvested
Material (not seed as defined). o To store and sell Harvested Material. o Undertakes not to propagate, multiply or breed any plant material in any way.
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o Undertakes not to sell, donate or otherwise dispose of the seed (owned by the Seed Company)
o Shall not do anything that contravenes Seed Company Rights in terms of the PBR Act
Farm Saved Seed o May use Harvested Material as Seed if:
i. Makes application to the Seed Co by signing a separate Farm Saved Seed Agreement; and
ii. Makes payment of a technology fee (royalty). Seed Company Rights
o Given that seed is a biological product and has a theoretical infinite lifespan, and that Producer has agreed not to plant Farm Saved Seed, it is only fair that the Seed Company should have means to be able to inspect and verify compliance for as long as seed is theoretically able to be kept back.
o Evergreen Clause – subject to notification, Seed Company has right to access growing areas and to take samples to ensure compliance (+ access to books and records if requested)
Penalty for Breach o Significant penalties for breach.
LICENSE MODEL – DOES IT ADDRESS ISSUES?
1. Company should have control over the process – i.e. non reliance on external parties & processes. Contractual agreement - Company retains ownership of seed & Seed is
supplied once license is signed 2. Able to measure compliance.
Access to farm and can take samples – able to prove non-compliance
3. Incentivise producers to comply. Pre-defined penalties for breach (agreed upon in contract)
4. Be easily enforceable. Contract law – Proof of breach (access to farm), copy of contract, magistrate.
5. Work within parameters of standard practice (keeping seed back). Allows for FSS – subject to payment of a royalty and application
6. Address farmers privilege problem Yes, Royalties payable on FSS. Addresses collectability of technology fees issues Addresses sustainability issues
CONCLUSION
Purpose of PBR Act = Protection of Intellectual Property. Rights granted in terms of PBR Act are diminished by the Farmers Privilege Clause. Far Reaching consequences of diminished rights including;
o Reduced investment into OPV development
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Stricter application of IP rights??
Unintended Consequence of Farmers Privilege??
o Technology availability o Technology adoption o Sustainability of breeding programs and consequent impacts on;
Disease management International competiveness (yield) Intrinsic value accruing from breeding
A workable solution = License Model
that addresses Farmers Privilege issue o Control over process, o Ensure compliance o Enforceable
THE FIX IS CHEAP AND SIMPLE
Intervention in a complex system tends to create unanticipated and often undesirable outcomes - One of the most potent laws in existence 2. At the start of the Common Era, just over 2000 years ago, there were roughly 200
million people on earth. 3. By the year 1000 this number had risen to 300 million. 4. By 1750 there were just 800 million people and famine was a constant worry. The
smart money said that the plant couldn’t possibly support much more growth with the population of England essentially decreasing.
5. Enter the Agricultural Revolution – a variety of innovation including higher yielding crops, better tools and more efficient use of land and capital.
6. By 1850, worldwide population had grown to 1.3 Billion. 7. By 1900, worldwide population had grown to 1.3 Billion. 8. By 1950, worldwide population had grown to 2.6 Billion. 9. By 2000, worldwide population had grown to 6 Billion. 10. In the late eighteenth century it took 19 out of 20 workers to feed the countries
inhabitants and provide a surplus for export. 200 years later only 1 out of 20 American workers were needed to feed a far larger population while also making the US the largest single exporter of food on the world.
OBJECTIVE
1. Review current situation with regard to SA food security and Section 23(6(f)) of the Plant Breeders Rights Act (Farmers Privilege clause)
2. Touch on possible alternatives – what is the ideal situation as the current model is not sustainable
3. Discuss how to get to the ideal situation in (2) above. – More effective if all affected parties sing as a choir with one voice.
SOLUTION
Inclusion of Farmers Privilege has Consequences – Reduced investment in R&D
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– Compliant with UPOV 91 – Recognises the farmers privilege clause – Also addresses impact of farmers privilege clause on research funding by
granting legal rights (enforceable) to PBR owners that allow for and end point royalty (EPR) on delivered grain.
– Grain marketers are required by PBR legislation to collect EPR prior to marketing and usually on the basis of variety declarations.
FARMER’S PRIVILEGE AND THE AUSTRALIAN PBR ACT 1994
Section 11 - General nature of PBR
Section 14 - Extension of PBR to harvested material in certain circumstances
Section 15 - Extension of PBR to products obtained from harvested material in certain circumstances
Subject to sections 16, 17, 18, 19 and
23, PBR in a plant variety is the
exclusive right, subject to this Act, to
do, or to license another person to do,
the following acts in relation to
propagating material of the variety
(a) produce or reproduce the
material;
(b) condition the material for the
purpose of propagation;
(c) offer the material for sale;
(d) sell the material;
(e) import the material;
(f) export the material;
(g) stock the material for the purposes
described in paragraph (a) to (f);
(1) If:
(a) propagating material of a plant
variety covered by PBR is
produced or reproduced without the
authorisation of the grantee;
(b) the grantee does not have a
reasonable opportunity to exercise
the grantee’s right in relation to the
propagating material; and
(c) material is harvested from the
propagating material;
section 11 operates as if the
harvested material were
propagating material.
(2) Subsection (1) applies to so much
of the material harvested by a
farmer from propagating material
conditioned and reproduced in the
circumstances set out in subsection
17(1) as is not itself required by the
farmer, for the farmer’s own use,
for reproductive purposes.
If:
(a) propagating material of a plant
variety covered by PBR is
produced or reproduced without
authorisation of the grantee; and
(b) the grantee does not have a
reasonable opportunity to exercise
the grantee’s rights in relation to
the propagating material; and
(c) material is harvested from plants
grown from the propagating
material but the grantee does not
have, in the circumstances set out
in section 14, a reasonable
opportunity of exercising the
grantee’s rights in the harvested
material; and
(d) products are made from the
harvested material; section 11
operates as if those products were
propagating material
WHAT HAPPENS IF NO CHANGE TO 23(6(F))?
Collaboration of all stakeholders in the development of a Plan B – There is already a system of End Point Royalties in place for wheat (WCT Levy –
Statutory levy governed by Agricultural Marketing Act). – Silo operators are already in practice of deducting a Levy. – In Wheat, variety declarations should be made in terms of Agricultural Marketing
Standards Act (Bread wheat must be 95% listed cultivars) – Lobby support with stakeholders and value chain players to actively seek an
alternative workable solution as the current route to market is not sustainable
SUMMARISE OBJECTIVE
1. Review current situation with regard to SA food security and Section 23(6(f)) of the Plant Breeders Rights Act (Farmers Privilege clause)
– Current model is not sustainable because a. Disincentive to PBR holders
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b. Disincentive to Technology Owners c. Sustainability of Plant breeding programs (OPV’s) d. Impacts of above on future Food Security e. Touch on possible alternatives
– what is the ideal situation as the current model is not sustainable a. Revise PBR act to limit Farmers Privilege to non-commercial farmers b. Adoption of Australian PBR Model c. Plan B – start lobbying stakeholders and value chain players now –
regardless of i & ii 2. Discuss how to get to the ideal situation in (2) above.
– More effective if all affected parties sing as a choir with one voice a. start lobbying stakeholders and value chain players now – regardless
of i & ii.
DISCUSSION: FARM SAVED SEED – IMPLICATIONS
Question: Will seed companies have access to all farms in the enforcement of royalty payment?
Response: The seed company would have an interactive dialogue with the farmers for the use of the company varieties. If farmers are prepared to pay royalties then they can use company varieties.
Question: How is the 75% royalty determined? Response: It is about 10% of the seed price.
Question: If someone wants to use the company’s germplasm for breeding purpose, does one need to seek authority from the company?
Response: Yes. The company insists on contractual agreement and breeders’ exemption provided in the Plant Breeders Rights is not considered.
Question: Considering a large market with small holder farmers, would the company be in a position to institute its policy on royalty payment by every famer who uses its varieties?
Response: The company considers large scale famers, and as long as the farmer uses the company varieties for commercial purposes, one has to pay royalties.
Question: What is the effect of the introduction of multinational companies in view of the company’s breeding programmes?
Response: There is a refocus on the breeding programmes for crops which give a higher return. The company would be reluctant in investing through its breeding programme in crops where farmer saved seed is rampant.
Question: Who checks that the contract is valid? Response: The seed company have a lawyer who validates contractual agreements.
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DAY 2: SESSION 3
2.3.1 CASE STUDIES
Dr Wynand van der Walt presented case studies to the participants as an exercise, which they completed as group work. Two case studies were considered: breeding from hybrid maize, objection to EU granting PVP on canna. Thereafter the various outcomes were debated.
WORKGROUPS: COUNTRY PLANS ON PBR
The participants then split into country groups for Swaziland, Malawi, Zambia and Zimbabwe where they drafted National plans regarding Plant Variety Protection. At the plenary session following that they presented their respective plans as follows:
92
2.4.1 NATIONAL PLANS: SWAZILAND
There is need to develop the legislation regarding the Plant Variety Protection, of course adhering to the UPOV guide lines. They will start the draft and present it to the stakeholders or hold a consultative meeting first.
Develop a working draft which includes critical elements/ key elements. Stakeholders have to decide if they want to domesticate it. We request a UPOV document to use as a template to formulate the draft. Identify the stakeholders: the office of the Attorney General, the drafter should be involved from the onset.
Develop a working document by the under listed: • Consultant • Draft man from AG’s office • Legal administration- MOA • Seed Registrar • Swaziland Seed Trade Association (SWASTA) • University of Swaziland (UNISWA) After the working document has been drafted:- • Presentation of the draft to the Ministry of Agriculture • Presentation of draft to Stakeholders • Finalize draft document • Invitation of internal inputs by Minister prior to submitting to AG’s office • Submit to AG’s office to be drafted accordingly • Minister pilots draft to cabinet • AG’s office to publish draft • Tabling of Bill to parliament
2.4.2 NATIONAL PLANS: ZIMBABWE
Zimbabwe has already a PBR Act in existence though not in line with UPOV. The Act/ Bill has been amended to which the Ministry is committed.
Action Plan • Regulatory impact assessment. • Cost benefits analysis. • Amendment of the legislation to align with UPOV. • Bill to become Act then Zimbabwe will become a member of UPOV.
2.4.3 NATIONAL PLANS: ZAMBIA
Zambia has recently enacted a PBR Act. However, they still needed to put certain processes in place:
93
• Administration - they still preparing the forms • Continue with public awareness. • Engage other institutions to assist to amend the legislation with UPOV. We have
already communicated with UPOV and submitted the law and we were given feedback and the resolutions are already with the office of the Attorney General.
• Continue to collaborate.
2.4.4 NATIONAL PLANS: MALAWI
• To call for a meeting so that they can review the draft this was put in place for the past 10 years.
• To engage the lawyer from the beginning and involve all stake holders such as the farmer’s Union, STAM, Researchers and Universities.
• Approach the lawyers for a way forward.
DISCUSSION: NATIONAL PLANS
Question: Bruce Chulu Simbunji. Why do want to involve the lawyers at all levels?
Response: Mackson Banda. The draft is already in place so the lawyers should be there and ensure that the draft adheres to the UPOV guidelines.
Comment: Bruce Chulu Simbunji. Just give the lawyer a draft rather than involving them in all the levels.
CLOSING
The participants then completed evaluation forms with a view to assess amongst others, the organization of the workshop, relevancy and usefulness.
Eddie Goldschagg gave a summary of what were covered in the two day workshop. Thereafter, Dr. Evans O. Sikinyi thanked the workshop organizers for a job well done and thanked everyone and wished them well.
Dr. B. Mpofu gave closing remarks and also thanked all the participants for their contributions.
94
ANNEXES:
ANNEXURE A1 MEETING SCHEDULE
Day 1: 23 November 2011
08:00 - 08:30 Registration
08:30 - 08:45 Welcome and Introductions
08:45 - 09:00 Objectives of the workshop - Dr. B. Mpofu (FANRPAN)
09.00 - 09:30 Key note address: PVP – Where is Africa? – Mr. David Cochrane
(Spoor & Fisher - Attorney)
09:30 - 10:00 Introduction to UPOV convention - Dr. Evans O. Sikinyi (STAK)
10:00 - 10:30 Discussion
10:30 - 11:00 Tea break and Group Photograph
11:00 - 12:00 PVP application process – Noluthando Netnou-Nkoana (DAFF)
95
12:00 - 12:30 Maintenance of the Plant Breeders’ Rights (PBR) data and the regular
publication thereof, statistical data for SA - Elna de Bruyn (DAFF)
12:30 - 13:00 Enforcement of PBR protection – At van Rooy (DM KISCH INC - Patent
Attorney)
13:00 - 14:00 Lunch
14:00 - 14:30 SADC draft protocol on PBR vs. UPOV convention - Dr. W. Van der
Walt (FoodNCropBio)
14:30 - 15:30 Country Reports on the status of National PBR:
Malawi, Swaziland, Zambia, Zimbabwe
15:30 - 16:00 Tea break
16:00 - 17:00 Case studies (presentation and group work) - Dr. W. Van der Walt
(FoodNCropBio)
Day 2: 24 November 2011
08:30 - 09:00 NDUS Practical issues - Eddie Goldschagg (SANSOR)
09:00 - 09:30 Complexities regarding NDUS - Dr. W. Van der Walt (FoodNCropBio)
09:30 - 10:00 Global Status and Impact of PBR (UPOV) - Dr. Evans O. Sikinyi (Seed
Trade Association of Kenya)
10:00 - 10:30 Licensing of Public Varieties - Eddie Goldschagg (SANSOR)
10:30 - 11:00 Tea break
11:00 - 11:30 PVP progress in Africa - ARIPO
11:30 - 12:00 South Africa: Status and impact of PBR - Dr. Julian Japhta (DAFF)
12: 00 - 12:30 Kenya: Status and impact of PBR - Dr. Evans. O. Sikinyi (STAK)
12:30 - 13:00 Farm saved seed - Implications - Patrick Graham (Manager - Sensako
Seed Company)
13:00 - 14:00 Lunch
14:00 - 15:00 Group work: National plans regarding PVP
15:00 - 15:30 Tea break
15:30 - 16:10 Report back of group work
16:10 - 16:30 Summary and Closing remarks
96
ANNEXURE A2 LIST OF PARTICIPANTS
Name Designation/Organization Contact details Country Address/ Phone Number
1. Catherine Mungoma Director, Seed Control &
Certification Institute [email protected] Zambia
Box 350199, Chilanga
+260211278236
2. Elizabeth Hove Law Officer, Act’s Office [email protected] Zimbabwe 2 Douglas Clark Avenue, Harare +263 772 412 880
3. Sylvia Maseko Legal Officer [email protected] Swaziland Box 162 Mbabane
+268 240 42731
4. Elna de Bruyn Plant Variety Registration
Officer, DAFF [email protected] South Africa
P/Bag X973 Pretoria 0001 +2712 319 6096
5. Noluthando
Netnou - Nkoana Registrar PBR, DAFF [email protected] South Africa
P/Bag X973 Pretoria 0001 +2712 319 6183
6. Harry van den Burg Member, SWASTA [email protected] Swaziland Box 2340 Mbabane H100
+268 7603 45 96
7. Cassandra Musonda Parliamentary Counsel¸ Ministry of Justice
[email protected] Zambia Box 50106 Lusaka
+260 977 434678
8. Eddie Goldschagg Technical Manager, SANSOR [email protected] South Africa Box 72981, Lynnwood Ridge
+27 82 787 1593
9. Elliot Tembo Breeder, Seed CO [email protected]
[email protected] Zimbabwe
Box CH142 Chisipite, Harare
+263 772 147 134
10. Bruce Chulu Simbunji Principal Seeds Officer, SCCI [email protected] Zambia Box 3501199 Chilanga
+260 211 278 236
11. Edmore Mtetwa Seed Technologist, Seed
Services Institute [email protected] Zimbabwe
Box CY550 Causeway, Harare
+263 772 685 216
12. Mackson Banda Deputy Director, Department
Agriculture Research Services [email protected] Malawi
Box 30779, Lilongwe, Malawi
+2651707363, +265999969384
13. Etiwell Gubunje Seed Technologist – Plant
Breeders Rights Officer, SSI [email protected] Zimbabwe
Box CY550 Causeway, Harare
+263775412288, +2634791223
97
14. Wynand van der Walt Manager, FoodNcropBio [email protected] South Africa
Postnet Suite 37 Bag X25723
Monument Park 0105
+2783 468 3471
15. Patrick Graham Director, Sensako [email protected] South Africa +27 82 388 0199
16. Sipho Simelane Seed Registrar, Ministry of
Agriculture [email protected] Swaziland
Box 4, Malkerns
+268 5274054/ +268 76037140
17. Evans O. Sikinyi CEO, STAK [email protected] Kenya Box 2581- 00202 Nairobi
+254 710 575 207
18. At van Rooy Patent Attorney, DM Kisch [email protected] South Africa +27 12 460 3203
19. David Cochrane Patent Attorney, Spoor &
Fisher [email protected] South Africa +27 12 676 1001
20. Patrick Mviha Ass. Director, Department of
Agriculture [email protected] Malawi
Box 30779, Lilongwe
+265 1 707 123
21. Lindiwe Majele
Sibanda CEO, FANRPAN [email protected] South Africa +27 72 441 8110
22. Bellah Mpofu Programme Manager,
FANRPAN [email protected] South Africa +27 12 804 3186
23. Sipiwe Mapanda PA, FANRPAN [email protected] South Africa + 27 82 375 9506
24. Youven Gounden Coms Manager, FANRPAN [email protected] South Africa +27 71 470 8330
25. T. Gumedze Research Officer, Dept of Research
[email protected] Swaziland Box 4 Malkerns
+268 761 29129 /25274075
98
ANNEXURE A3.1 PAGE FROM TABLE 1 – KINDS OF PLANTS AND PERIODS OF RIGHTS
TABLE 1 – TABEL 1
KINDS OF PLANTS AND PERIODS OF RIGHTS SOORTE PLANTE EN TERMYNE VAN REGTE
[Reg. 11; 11(a)]
1 2 3 4
Kind of plant/Soort plant
Botanical name Botaniese naam
Common name Gewone naam
Category Kategorie
Period of plant breeder's right
(years) Termyn van
Planttelersreg (jare)
Period of sole right
(years) Termyn
van alleenr
eg (jare)
Abelmoschus Medik. (All/Alle spp.) Gumbo, Lady’s fingers B 25 8
Abelia R.Br. (All/Alle spp.) Abelia A 20 5
Abutilon Mill. (All/Alle spp.) Flowering maple, Chinese lantern/Blomwattel, Chinese lantern B 25 8
Acacia podalyriifolia A. Cunn. Ex G. Don Queensland silver wattle, Pearl acacia/Lierwattel, Vaalmimosa B 25 8
Acorus L. (All/Alle spp.) Sweet flag A 20 5
Actinidia Lindley (All/Alle spp.) Kiwifruit/Kiwivrug B 25 8
Adenanthos Labill. (All/Alle spp.) Adenanthos A 20 5
Agapanthus L'Hérit. (All/Alle spp.) Agapanthus, Blue lily/Agapant, Bloukandelaar, Bloulelie A 20 5
Agathosma Willd.[Barosma Willd.] (All/Alle spp) Agathosma, Buchu/Agathosma, Boegoe A 20 5
Ageratina Spach (All/Alle spp.) Ageratina A 20 5
Aglaonema Schott (All/Alle spp.) Aglaonema A 20 5
X Agrotriticum Ciferri et Giacom. (Agropyron x Triticum)
Agrotriticum A 20 5
Ajuga L. (All/Alle spp.) Bugleweed/Senegroen A 20 5
Allium cepa L. Onion/Ui A 20 5
Allium porrum L. Leek/Prei A 20 5
Allium sativum L. Garlic
A
20
5
Aloe L. (All/Alle spp.) Aloe/Aalwyn A 20 5
Alstroemeria L. (All/Alle spp.) Peruvian lily, Inca lily/Perulelie, Inkalelie A 20 5
Ananas comosus (L.) Merrill Pineapple/Pynappel B 25 8
Angelonia Humb. & Bonpl.(All/Alle spp.) Angelonia A 20 5
Anisodontea K. Presl. (All/Alle spp.) George mallow, Hairy mallow/Georgemalva, Harige malva A 20 5
Anthephora pubescens Nees Bottle brush grass/Borseltjiegras A 20 5
Anthurium Schott (All/Alle spp.) Anthurium A 20 5
Antirrhinum L. (All/Alle spp.) Snapdragon/Leeubekkie A 20 5
99
ANNEXURE A3.2 SUBMISSION LIST FOR FORMS, SEED AND/OR PLANT MATERIAL FOR PBR
SUBMISSION LIST FOR FORMS, SEED AND / OR PLANT MATERIAL FOR VARIETY LIST
AND / OR PLANT BREEDER'S RIGHT TESTING.
CLOSING DATE FOR PLANTING DATE
SCIENTIFIC NAME COMMON NAME SUBMISSION OF FORMS
AND PLANT MATERIAL PACKETS GRAM
X Agrotricum Agrotricum 31 March 22-31 May 7 x 120g 840g
Allium cepa Onion (Short day) 31 January 1-7 March 7x15g 105g
Allium porrum Leek 31 January 1-7 March 7x20g 140g
Anthephora pubescens Bottle Brush Grass31 July 8-14 September7x15g 105g
Arachis hypogaea Groundnut 31 August 1-7 November 2 x 500g 1000g
Asparagus officinalis Asparagus 31 July 22-31 August 7x20g 140g
Avena nuda Naked Oats 31 March 22-31 May 7x120g 840g
Avena sativa Oats 31 March 22-31 May 7x120g 840g
Beta vulgaris Fodder Beet 31 January 8-14 March 7x60g 420g
Beta vulgaris Garden Beet 31 January 8-14 March 7x60g 420g
Beta vulgaris Sugar Beet 31 January 8-14 March 7x60g 420g
KIND OF PLANT
AMOUNT OF SEEDS
100
ANNEXURE A3.3 APPLICATION FORM FOR PBR
APPLICATION FOR A PLANT BREEDER’S RIGHT
PLANT BREEDERS’ RIGHTS ACT, 1976 (ACT NO 15 OF 1976)
1. Full name and address of applicant (if more than one person applies jointly, provide the name and address of each person):
Nationality:
2. Address for purposes of correspondence (in the case of overseas applicants, the address of the agent in the RSA):
Contact person: Tel. no.:
E-mail: Fax no.:
This address is: that of one of the applicants
that of the agent or proxy
3. Kind of plant: Botanical name:
Common name:
4. Proposed variety denomination:
Breeder’s reference:
Trade names/Trade marks:
5. The original breeder or discoverer is:
The applicant The following persons (full names & addresses of all other persons):
No other person participated in the breeding or discovery of the variety.
101
Variety denomination:
6. The applicant obtained the variety by means of:
Contract: Succession: Other (specify):
Country where the variety was bred or discovered:
7. The variety originated by means of:
Conventional breeding Induced mutation
Selection from an existing variety or species Genetic manipulation (non-conventional
breeding)
Spontaneous mutation Other (provide details below)
8. Particulars of all previous applications in any other country in connection with the variety:
For the purposes of this paragraph:
(i) all plant breeders’ rights, plant patents, trade marks and any other special titles of protection in respect of
plants must be indicated; and
(ii) “Official Variety List” means any list of varieties of which commercialisation has been authorised by an
appropriate authority.
(iii) Underline the denomination in the last column if it has been approved by an appropriate authority.
Kind of application Dates of applications
and countries of
submissions
Application numbers Stages and dates
(use symbols given
below)
Denomination or breeder’s
reference
Plant Breeders’ Rights
Official Variety List
Other (specify)
A: application submitted to and
being considered by an
appropriate authority
B: Application rejected by an
appropriate authority
C: Application withdrawn by
applicant
D: Plant Breeders’ Rights
granted or denomination of
variety included in official
variety list
9. Priority is claimed in respect of the earliest application deposited:
in (name of country)
on (date)
under the denomination
10. Propagating material or harvested material of the variety:
has not yet been offered for sale or marketed in any country has been offered for sale or marketed:
in (names of countries)
on (dates):
under the denominations:
102
Variety denomination:
11. Trademarks: if the proposed denomination indicated in paragraph 4 above, is a designation in respect of a mark
within the meaning of the Trade Marks Act, 1963 (Act no. 62 of 1963), the following particulars must be furnished in
respect of that designation: (If the space is insufficient, attach a separate page with the details)
Country in which protected Date of application Date of registration Registration number
If a trade mark designation is to be registered as the variety denomination, the holder of the mark has to
renounce his/her right. Attach documentary proof that the holder of the mark has renounced his/her right.
12. Application for a provisional protective direction (optional) Yes
No
I hereby request that a provisional protective direction in respect of the variety be issued to me in terms of Section 14
of the Plant Breeders’ Rights Act. If such a direction is issued to me, I undertake, while the direction is in force, not to
sell any propagating material of the variety in the Republic of South Africa, except for purposes of multiplication or
testing of the variety.
13. The following forms and documents are attached: (indicate with an X)
Description of a typical plant of the variety on the technical questionnaire which is available from the
Registrar.
Documentary proof of the title or authority of a legal representative or an agent who submits the application
on behalf of an applicant, or of a joint applicant thus authorised if he/she submits the application on behalf of
the applicants
Documentary proof of the transfer of the variety to the applicant.
The application and examination fees which are payable in terms of Section 7 & Regulation 3 of the Plant
Breeders’ Rights Act.
Certified copies of the earliest application lodged in a convention or agreement country. These documents are
required only if priority is claimed.
The application fee payable for a priority claim in terms of Section 8 and Regulation 4 of the Plant Breeders’
Rights Act.
An application for the recognition of a variety has been submitted simultaneously with this application
Propagating material * See (i) and (ii) below.
* (i) Particulars of propagating material:
Identifying mark on sample container:
Place where cultivated:
Grower:
Year of cultivation:
Seed treatment: (indicate all treatments – insecticides, fungicides, trace elements, etc. as well as dosages and dates of treatment.)
103
Variety denomination:
* (ii) In case where the propagating material does not accompany the application, please indicate when submission of the
material can be expected. In the case of trees/vines that are already established, please indicate the locality.
In terms of Section 19(5) of the Plant Breeders’ Rights Act, the applicant has to furnish propagating material for
examination within 12 months from lodging of the application, unless exemption for a specified period of time is
obtained from the Registrar in writing.
14. I, the undersigned:
(a) hereby apply for the grant of a plant breeder’s right for the above-mentioned variety in terms of the Plant
Breeders’ Rights Act, 1976 (Act 15 of 1976)
(b) declare that, to the best of my knowledge, the information furnished in this application and the attached forms
and documents is correct, and that no relevant information has been omitted;
(c) declare that the propagating material submitted herewith or as arranged, is a representative sample of propagating
material of the variety
(d) authorise the Registrar to exchange any useful information in connection with the variety with the appropriate
authority in another country.
IMPORTANT
Any person who is guilty of an offence, as defined in terms of Section 45 of the Plant Breeders’ Rights Act, 1976 (Act
15 of 1976) is liable on conviction to-
a fine or imprisonment for a period of up to two years for a first offence; and
a fine or imprisonment for a period of four years for a second offence.
Signed at (place) on this (date)
day of (month) of (year)
Signature of applicant/agent
All documentation (application form, technical questionnaire, fees, etc) must be sent to:
Registrar: Plant Breeders’ Rights Act, Private Bag X973, Pretoria 0001
104
ANNEXURE A3.4 TARIFFS AS FROM 1 APRIL 2011
PLANT BREEDERS’ RIGHTS ACT, ACT NO 15 OF 1976.
NEW TARIFFS AS FROM 1 APRIL 2011
BANK STANDARD BANK, ARCADIA
BRANCH CODE 01-08-45
ACCOUNT NUMBER 011278196
ACCOUNT NAME NDA- Miscellaneous Deposits
A copy of proof of payment must please accompany your application as the registration
process will only commence after proof of payment is received
APPLICATION FEES R1 700-00
EXAMINATION FEES :
CATEGORY A (Agronomic, Vegetable & Pasture crops & Annual ornamentals)
R2 800-00
CATEGORY B ( Fruit, Vines, Citrus & Perennial ornamentals)
R3 800-00
CATEGORY B ( White & Yellow maize, Sweetcorn) R3 200-00
PRIORITY CLAIM R 890-00
ANNUAL FEES R 270-00
ALTERATION OF AN APPROVED DENOMINATION R1 800-00
NOTICE OF A TRANSFER OF A PBR R 740-00
NOTICE OF A CHANGE OF LOCAL AGENT Free
PURCHACING OF TEST RESULTS FROM OTHER
CONVENTION / AGREEMENT COUNTRIES
CHF 350
(Swiss Francs) *
VOLUNTARY SURRENDER OF A PBR Free
* Swiss francs must be converted into Rands as the exchange rate reflects on
date of payment
105
ANNEXURE A3.5 SCHEDULE I – NOTICE OF APPOINTMENT OR SUBSTITUTION OF AGENT
SCHEDULE I / BYLAE I
NOTICE OF APPOINTMENT OR SUBSTITUTION OF AGENT KENNISGEWING VAN AANSTELLING OF VERVANGING VAN AGENT
_______________________________________________________________________
1. Full name and address of applicant/holder *: Volle naam en adres van aansoeker/houer *: ……………………………………………………………
………………………………………………………………………………………………………………….
_______________________________________________________________________
2. Kind of plant / Soort plant: …………………………………………………………………………………
_______________________________________________________________________
3. Denomination/Proposed denomination/Breeder’s reference *: Benaming/Voorgestelde benaming/Telersverwysing *: ………………………………………
_______________________________________________________________________
4. Application/Registration number / Aansoek/Registrasienommer: ………………………………………
_______________________________________________________________________
5. * Notice is hereby given that, with effect from the date of the signing of this document, I am appointing the undermentioned person of the stated address as my agent to act on my behalf in connection with any matter regarding the Plant Breeders’ Rights Act, 1976 (Act 15 of 1976), in confirmation whereof written proof of his title or authority thereof is attached /
* Kennis word hierby gegee dat ek, met ingang van die datum van ondertekening van hierdie dokument, die ondergemelde persoon van die aangeduide adres as my agent aanstel om namens my op te tree in verband met enige aangeleentheid betreffende die Wet op Planttelersregte, 1976 (Wet 15 van 1976), ter bevestiging waarvan skriftelike bewys van sy titel of gesag hierby aangeheg is:
…………………………………………………………………………………………………………………
…………………………………………………………………………………………………………………
…………………………………………………………………………………………………………………
_______________________________________________________________________
6. * Notice is hereby given that, with effect from the date of the signing of this document, I am withdrawing the appointment of the undermentioned person of the stated address as my agent in terms of the Plant Breeders’ Rights Act, 1976 (Act 15 of 1976), and have cancelled the written proof of his title or authority /
* Kennis word hierby gegee dat ek, met ingang van die datum van ondertekening van hierdie dokument, die aanstelling van ondergemelde persoon van die aangeduide adres as my agent ingevolge die Wet op Planttelersregte, 1976 (Wet 15 van 1976), terugtrek en die skriftelike bewys van sy titel of gesag gekanselleer het:
…………………………………………………………………………………………………………………
…………………………………………………………………………………………………………………
…………………………………………………………………………………………………………………
_______________________________________________________________________
Signed at (place)/ on this/ day of/ Geteken te (plek) ………………………….…….. op hede die …….…… dag van ………………….. 20……
…………………………………………………………..
SIGNATURE OF TRANSFEROR/AGENT HANDTEKENING VAN OORDRAGGEWER/AGENT
* DELETE WHICHEVER IS NOT APPLICABLE / SKRAP WAT NIE VAN TOEPASSING IS NIE
106
ANNEXURE A3.6 TECHNICAL QUESTIONNAIRE – CARROT, PAGE 1
TG/49/5 (proj.)
GEELWORTEL/CARROT, 09/00
PT
VL
TEGNIESE VRAELYS
Om saam met ‘n aansoek om *Planttelersregte en/of Variëteitserkenning voltooi te word
TECHNICAL QUESTIONNAIRE
To be completed in conjunction with an application for *Plant Breeder’s Rights and/or recognition of a Variety
1. Plantsoort Daucus carota L.
Kind of plant Geelwortel
Carrot
2 Aansoeker (Naam en adres van plaaslike firma/organisasie)
Applicant (Name and address of local firm/organization)
Tel. no/nr: Faks/Fax:
E-mail:
Kontakpersoon / Contact person:
(Blokletters / Print)
3. Voorgestelde variëteitsbenaming
Proposed variety denomination
4.1 Inligting oor voortplanting
Information about reproduction
(i) Baster / Hybrid [ ]
(ii) Oopbestuif / Open pollinated [ ]
4.2 Oorsprong / Origin
(i) Ingevoer vanaf / Imported from
(ii) Plaaslik geteel / Breed locally [ ]
107
ANNEXURE A3.7 SCHEDULE G – APPLICATION FOR ALTERATION OF DENOMINATION
SCHEDULE G / BYLAE G
APPLICATION FOR ALTERATION OR SUPPLEMENTATION OF A DENOMINATION AANSOEK OM WYSIGING OF AANVULLING VAN ‘N BENAMING
_______________________________________________________________________
1. * Full name and address of applicant/holder: * Volle naam en adres van aansoeker/houer: ……………………………………………………………
………………………………………………………………………………………………………………….
_______________________________________________________________________
2. Kind of plant / Soort plant: …………………………………………………………………………………
_______________________________________________________________________
3. * Proposed/Approved denomination: * Voorgestelde/Goedgekeurde benaming: ……......................…………………………………
_______________________________________________________________________
4. * Application/Registration number: * Aansoek/Registrasienommer: ………………………………………………………
_______________________________________________________________________
5. * I hereby apply for the *alteration/supplementation of the *proposed/approved denomination of the above-mentioned variety as follows:
* Ek doen hierby as volg aansoek om die *wysiging/aanvulling van die *voorgestelde/goedgekeurde benaming van bogenoemde variëteit:
New denomination/Nuwe benaming: ……………………………………………………………………
Reasons for application/Rede vir aansoek (use a separate page if necessary/gebruik aparte bladsy
indien nodig):
………………………………………………….……………………………………………………………
………………………………………………….……………………………………………………………
………………………………………………………………………………………………………………
_______________________________________________________________________
6. Signed at (place)/ on this/ day of/ Geteken te (plek) ………………………….…….. op hede die …….… dag van …………….….. 20….
…………………………………………………………..
SIGNATURE OF *APPLICANT/HOLDER/AGENT HANDTEKENING VAN *AANSOEKER/HOUER/AGENT
* DELETE WHICHEVER IS NOT APPLICABLE / SKRAP WAT NIE VAN TOEPASSING IS NIE
108
ANNEXURE A3.8 SCHEDULE H – VOLUNTARY SURRENDER OF PBR
SCHEDULE H / BYLAE H
NOTICE OF VOLUNTARY SURRENDER OF PLANT BREEDER’S RIGHT KENNISGEWING VAN VRYWILLIGE AFSTAND VAN PLANTTELERSREG
_______________________________________________________________________
1. Full name and address of holder: Volle naam en adres van houer: ……………………....................………………………………………
………………………………………………………………………………………………………………….
_______________________________________________________________________
2. Kind of plant / Soort plant: …………………………………………………………………………………
_______________________________________________________________________
3. Denomination: Benaming: ........................................................……………………………………
_______________________________________________________________________
4. Registration number: Registrasienommer: …………………………………….………………………………………
_______________________________________________________________________
5. Notice is hereby given that, with effect from the date of the signing of this document, I am surrendering the right in respect of the above-mentioned variety granted to me in terms of the Plant Breeders’ Rights Act, 1976 (Act 15 of 1976).
Kennis word hierby gegee dat ek, met ingang van die datum van ondertekening van hierdie
dokument, afstand doen van die reg ten opsigte van bogenoemde variëteit wat ingevolge die Wet op Planttelersregte, 1976 (Wet 15 van 1976), aan my toegestaan is.
_______________________________________________________________________
Furnish registrar with proof of notification served to all licencess of termination
6. Signed at (place)/ on this/ day of/ Geteken te (plek) ………………………….…….. op hede die …….…… dag van ………….….. 20….
…………………………………………………………..
SIGNATURE OF HOLDER/AGENT HANDTEKENING VAN HOUER/AGENT
109
ANNEXURE A3.9 SCHEDULE J – WITHDRAWAL OF APPLICATION FOR PBR
SCHEDULE J / BYLAE J
NOTICE OF VOLUNTARY WITHDRAWAL OF AN APPLICATION FOR A PLANT
BREEDER’S RIGHT KENNISGEWING VAN VRYWILLIGE ONTTREKKING VAN ‘N AANSOEK OM ‘N
PLANTTELERSREG
1. Full name and address of applicant: Volle naam en adres van aansoeker:________________________________ ___________________________________________________________________ 2. Kind of plant: Soort plant:____________________________________________________ ___________________________________________________________________ 3. Denomination: Benaming:_____________________________________________________ ___________________________________________________________________ 4. Application number: Aansoeknommer:_____________________________________________ ___________________________________________________________________ 5. Notice is hereby given that, with effect from the date of the signing of this
document, I withdraw the PBR application in respect of the abovementioned variety in terms of the Plant Breeders’ Right Act, 1976 (Act 15 of 1976)/ Kennis word hiermee gegee dat ek met ingang van die datum van ondertekening van hierdie dokument die aansoek om PTR onttrek ten opsigte van bovermelde variëteit ingevolge die Wet op Planttelersregte, 1976 (Wet 15 van 1976).
___________________________________________________________________ 6. Signed at (place) _________________this ______day of _________20 ____
Geteken te (plek) _________________op hede die ________dag van ________20 ___
_____________________________ SIGNATURE OF HOLDER/AGENT
110
ANNEXURE A3.10 NOTICE OF TRANSFER OF PBR
Plant Breeders’ Rights Office Directorate: Genetic Resources
KENNISGEWING VAN DIE OORDRAG VAN ‘N PLANTTELERSREG
NOTICE OF THE TRANSFER OF A PLANT BREEDER’S RIGHT
---------------------------------------------------------------------------------------------------------------- 1. REGISTRASIENOMMER / REGISTRATION NUMBER:
ZA …………………………….
2. DATUM VAN TOESTAAN VAN REG / DATE OF GRANT OF RIGHT:
…………………………………………………………………………………………………………………
3. NAAM EN ADRES VAN OORDRAGGEWER / NAME AND ADDRESS OF TRANSFERRER:
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4. SOORT PLANT / KIND OF PLANT:
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5. VARIëTEITSBENAMING / VARIETY DENOMINATION:
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6. NAAM EN ADRES VAN PERSOON/INSTANSIE AAN WIE OORGEDRA /
NAME AND ADDRESS OF TRANSFEREE:
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7. GEDEELTE OORGEDRA / PORTION TRANSFERRED:
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8. DATUM VAN OORDRAG / DATE OF TRANSFER:
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9. NAAM EN ADRES VAN NUWE AGENT / NAME AND ADDRESS OF NEW AGENT:
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