SOUTH AFRICA Law and Practice Contributed by: At van Rooy, Annelise Engelbreg, Ursula Baravalle and Stuart Miller, KISCH IP
Plant Breeders’ Rights The applicant for the registration of a plant breeders’ right lodges an application with the registrar of plant breeders’ rights at the latest within one year of commercially disposing of plant material in South Africa, or six years for trees and vines and four years for other types if the plant material is commercially disposed of in another member country of the International Union for the Protection of New Plant Varieties (UPOV). The registration procedure may be conducted physically with the registrar online via UPOV PRISMA. This application typically contains documents encompassing the application form, a technical questionnaire, photographs, right to apply (ie, assignment) and proof of payment. The application is published by the registrar in the government gazette, and an interested per- son has six months from the publication date to oppose the application. The Department of Agriculture grows and evaluates the variety to ensure it meets registration standards (ie, dis- tinct, uniform and stable). Depending on the vari- ety type, this could take between three months and several years. As such, the applicant must supply plant material to the Department of Agri- culture within an extendable 12-month period. If the material originates outside of the Republic, a phyto-sanitary certificate and import permit must be obtained. It is important to note that another country’s testing results for the equiva- lent plant breeders’ right are not accepted in the Republic. Provisional protection while the appli- cation is pending is possible, provided that the applicant provides a written undertaking not to sell or consent to sell reproductive material of the variety. If the registrar is satisfied that the variety meets the requirements of protection, the right is granted and the term of protection starts on the grant date. The registrar will issue
complete specification filed under the Republic- based route. If any discrepancies occur between the PCT and local legislation, the PCT, and its regulations and administrative instructions, will prevail. Registered Designs The Applicant needs to lodge an application with the Designs Office at the latest within six months of the release date of the design. This release date is applicable to designs made avail- able to the public worldwide. The application date will be the date the application is lodged at the Designs Office, or if applicable, the date lodged at an office in a convention country. It is important to note that some foreign jurisdic- tions allow a 12-month period from the release date in which to lodge a registered design appli- cation. In such situations where the applicant has lodged a registered design application in a convention country more than six months after the release date, the subsequent application in the Republic will not be valid. Upon receipt of an application, the registrar will examine the application for formal compliance and, if found to be acceptable, issue a notice of registration. Note that no substantive examination will occur during this examination. The applicant is then obliged to publish a notice of registration in the patent journal and, after publication, the registrar will issue a certificate of registration. It is impor- tant to note that there is no time limit specified in which the publication must occur, but if no publication occurs, the registrar must refuse the application. The design, when registered, will be from the date of application. Registration may be as an aesthetic or functional design, or both – and in multiple classes – and the registrar may assist with the classification if requested.
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