Intellectual Property Rights

Intellectual property is a tool to ensure innovation takes place by encouraging plant breeders’ to breed improved varieties that focus on bringing economic, environmental and health benefits to the market.

To encourage plant breeding and innovation, plant breeders must be assured of a return on their investment. Intellectual property rights (IPR) protection allows companies to generate a return on research and development investment.

Plant breeders’ rights give breeders control over the propagating material (including seed, cuttings, divisions, tissue culture) and harvested material (cut flowers, fruit, foliage) of a new variety for a number of years.

The costs incurred in research and development of new plant varieties and hybrids are long-term investment and require significant amounts of financial resources. In order to justify the size and scope of research spending necessary to develop new varieties breeders or companies must be able to recoup their original investment as well as make earnings on it.

The implementation of plant breeders’ rights system in South Africa has been a major stimulus for the plant breeding industry. Through the protection of intellectual property rights, the seed industry has been able to provide agriculture with a diverse choice of higher-yielding, more disease-resistant, and hardier varieties.

Strong intellectual property protection allows breeders to be rewarded for their efforts. With these rights, the breeder can choose to become the exclusive marketer of the variety, or to license the variety to others. In order to qualify for these rights, a variety must be new, distinct, uniform and stable. The breeder must also give the variety an acceptable “denomination”, which becomes its generic name and must be used by anyone who markets the variety.

These rights, also enable plant breeders and producers to get access to high quality new varieties produced globally. It is of the utmost importance for the economy to obtain new and improved plant varieties as there is a constant demand for better quality, higher yields, better processing properties, increased disease and pest and drought resistance.

There are a number of acts and regulations in South Africa that regulate various aspects regarding the importation, propagation, stocking, denomination and sale of plant and propagating material. These include the Plant Breeders’ Rights Act 1976 (Act no. 15), the Plant Improvement Act, the Genetically Modified Organisms Act, the Agricultural Pests Act, and the Biodiversity Act.

South Africa is also a signatory to the International Union for the Protection of New Varieties of Plants (UPOV) 1976 which gives guidelines on the protection of plant breeders’ rights globally.

The Plant Breeders’ Rights Act intends to provide for a system under which new varieties of certain kinds of plants may be registered. It also allows for the protection of these granted rights as well as make provision for the granting of licences in respect of exercising of these rights.

In South Africa, plant breeders are not allowed to patent biological material, but they can apply for Plant Breeders Rights for a new variety or hybrid through the Department of Agriculture, Land Reform and Rural Development.

Plant breeders’ rights applications are subjected to substantive examination in South Africa. The Registrar will conduct tests and trials in order to determine whether the plant qualifies for the grant of a plant breeders’ right. In the case of an application claiming priority, the results of tests and trials by another appropriate authority in another country can be obtained.

In terms of the Plant Breeders’ Rights Act, 2016, the protection afforded to the holder of a plant breeders’ right includes that prior authorisation must be obtained from the holder for the duration of the right, for any person intending to undertake:

  • 1. The production or reproduction (multiplication) of the protected variety;
  • 2. The conditioning for the purposes of propagation of the protected variety;
  • 3. The sale or any other form of marketing of the protected variety;
  • 4. The exporting of the protected variety;
  • 5. The importing of the protected variety; or
  • 6. The stocking of the protected variety for any of the purposes referred to in paragraphs (1) to (5).

In order to obtain a valid plant breeders’ right in South Africa, the following requirements must be met:

  • The plant must be on the plant breeders’ rights plant list;
  • The applicant must have the right to apply; and
  • The plant variety must be new, distinct, uniform and stable.

International Union for the Protection of New Varieties of Plants (UPOV)

In 1957, in France negotiations took place concerned with the protection of new varieties, which led to the creation of the Union Internationale pour la Protection des Obtentions Végétales (UPOV) and adoption of the first text of the International Convention for the Protection of New Varieties of Plants (UPOV Convention) in 1961. The mission of UPOV is 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.

The UPOV Convention provides the basis for members to encourage plant breeding by granting breeders of new plant varieties an intellectual property right: the breeder’s right.

SANSOR supports South Africa to accede UPOV 1991.

For more information on SANSOR’s position on:

  • Conditioning for the purpose of propagation,
  • UPOV and Essential Derived Varieties

Please log into the member section or contact SANSOR in this regard at