Many people would wonder what the relationship of plants and intellectual property rights is. Interesting to note is the fact that Plant Breeders’ Rights are a form of intellectual property designed specifically to protect new varieties of plants, providing incentives for plant breeding.

By definition Plant Breeder’s Rights (PBR), also known as Plant variety rights (PVR), are rights granted to the breeder of a new variety of plant that give the breeder exclusive rights over the propagating material (that is the seed or cuttings) and harvested material (cut flowers, fruit) of a new variety for a number of years.

In Zimbabwe, the law that administers the registration of Plant Variety Rights is the Plant Breeders Rights Act No. 53 of 1973 [Chapter 18:16] as read with the Plant Breeder’s Rights Regulations 1998 (Statutory Instrument 113/1998).

The Seed Services Department of the Ministry of Agriculture, Mechanisation and Irrigation Development is responsible for the registration of new crop plant and forestry plant varieties in Zimbabwe. The Head of the Seed Services Department is the Registrar of Plant Breeder’s Rights.

Internationally plant breeder’s rights are protected via the UPOV Convention (The International Union for the Protection of New Varieties of Plants). Unfortunately, Zimbabwe is not yet a member of UPOV hence Plant Breeders’ Rights in Zimbabwe can only be obtained under the Zimbabwean Plant Breeders’ Rights Act. 

Plants to which the protection can be secured in Zimbabwe

To be eligible for protection in Zimbabwe, a variety must be new, distinct, uniform and stable. A variety is new if it has not been offered for sale or marketed in Zimbabwe prior to the date of application, or in any other country for more than six years (trees and vines) or four years (other plants) prior to the date of application.

A plant ought to meet the above requirements for it to be afforded plant breeders rights in Zimbabwe.

Who can apply for a plant variety right

Plant breeders rights may only be granted to an individual who is a citizen or resident of Zimbabwe or of a reciprocating country or a company or body corporate which carries on business or has its principal office in Zimbabwe or a reciprocating country; where the individual, company or body corporate, as the case may be, is a breeder of the new variety concerned.

A person must either be a breeder of a new variety or his assignee to register under the Plant Breeders Rights Act.

The process

An application for a plant variety right in Zimbabwe must be made in the prescribed form and lodged with the Registrar.

After filing the application for a plant breeders’right, the Registrar examines the application to check if it meets the requirements for a plant breeders right. The Registrar assesses the application and has discretion to grant or refuse it.

If the application is not refused, the Registrar publishes in the Government Gazette the name of the applicant and his intention to register a new plant variety. While the notice is being published, the prospective breeder has the sole right to sell, reproduce and multiply the reproductive material.

Within three months of publication, any person can lodge an objection to the application in writing to the Registrar. If no objection is raised within the three months from the date of publication, the Registrar will proceed to grant the plant breeder’s right to the applicant and issue a certificate of registration of plant breeders rights in respect of the plant.

A plant breeder’s right endures for 20 years from the date of grant. A five year extention can be obtained in exceptional circumstances. This term can be extended by a further five years subject to justification by the applicant and the Registrar’s discretion.

Conclusion

Registration of plant breeders’ rights entitles the breeder to prevent anyone from selling, reproducing or multiplying reproductive material of the protected plant or a plant essentially derived therefrom. It follows that if one is a breeder, they will be able to make a lot of money either from reproducing and selling the reproductive material or from licensing their rights accordingly. This is a great deal for plant breeders and our offices are open to assist plant breeders realize this dream.

[1] This note is for general information and should not be taken as absolute without consultation with BMatanga IP Attorneys and obtaining legal advice specific to consultant