Plant Breeders Rights Act [Chapter 18:16]

CHAPTER 18:16
PLANT BREEDERS RIGHTS ACT
Acts 53/1973, 39/1979, 11/2001, 22/2001 (s. 4).
ARRANGEMENT OF SECTIONS
PART I
PRELIMINARY
Section
1. Short title.
2. Interpretation.
PART IA
APPLICATION OFACT
3. Plants in respect of which plant breeders rights may be granted.
3A. Persons to whom plant breeders rights may be granted.
PART II
ADMINISTRATION
4. Registrar of Plant Breeders Rights and other officers.
5. Register of Plant Breeders Rights.
PART III
APPLICATIONS FOR AND GRANT OF PLANT BREEDERSRIGHTS
6. Persons entitled to make application for plant breeders rights.
7. Application for plant breeders rights and effective date thereof.
8. Description and samples of new variety.
9. Naming of plant concerned.
10. Refusal of application.
11. Amendment of application.
12. Publication of application.
12A. Rights of applicant for plant breeders rights
13. Objection to grant of plant breeders rights.
14. Refusal or grant of plant breeders rights.
15. Cancellation of plant breeders rights.
16. Duty of holder of plant breeders rights to maintain reproductive material.
17. Rights of holder of plant breeders rights.
17A. Duration of plant breeders rights.
18. Issue of licences.
19. Compulsory licences.
20. Surrender of plant breeders rights.
PART IV
APPEALS
21. Appeals from decision of Registrar.
22. Assessors.
23. Time for appeals.
24. Right of Registrar to appear at appeal.
25. References by Registrar to Administrative Court.
PART IVA
REMEDIES FOR INFRINGEMENT OF PLANT BREEDERS RIGHTS
25A. Court that may hear proceedings for infringement of plant breeders rights.
25B. Provisions applicable to proceedings for infringement of plant breeders rights.
25C. Remedies available in proceedings for infringement.
25D. Anton Piller orders.
25E. Remedy for groundless threats of infringement proceedings.
PART V
OFFENCES AND PENALTIES
26. Falsification of documents.
27. Failure to obey order of Appeal Board or giving false evidence.
28. Deceiving or improper influencing of officer.
29. Unauthorized claim of plant breeders rights or use of authorized name.
30. Offences by officers.
31. [Repealed].
PART VI
GENERAL
32. [Repealed].
33. Hearing before exercise of discretion of Registrar.
34. [Repealed].
35. Powers of Registrar to authorize corrections.
36. Rectification of Register.
37A. Use if approved name.
37. Prior knowledge or publication of new plant excused in certain circumstances.
38. Evidence of certain entries and documents.
39. Inspection and provision of certified copies of entries in Register.
40. Preservation of secrecy.
41. State to be bound and limitation of actions against State.
42. [Repealed].
43. Particulars to be published.
44. Assignments.
45. Regulatory powers.
AN ACT to provide for the registration of plant breeders rights in respect of certain varieties of
plants and the protection of the rights of persons who are registered as the holders of such rights; and
to provide for matters incidental to or connected with the foregoing.
[Date of commencement: 1st October, 1974.]
PART I
PRELIMINARY
1 Short title
This Act may be cited as the Plant Breeders Rights Act [Chapter 18:16].
2 Interpretation
In this Act—
“approved”, in relation to the name of a plant, means approved by the Registrar in terms of section nine;
[Definition inserted by Act 11 of 2001]
“assignee”, in relation to a new variety, means—
(a) a person who has derived his title to the new variety for Zimbabwe directly or indirectly from the
breeder or owner thereof; or
(b) the legal representative of the person referred to in paragraph (a);
“breeder”, in relation to a new variety, means—
(a) the person who directed the final breeding of the new variety or who developed or discovered
the new variety; or
(b) the legal representative of the person referred to in paragraph (a);
“breeding line” means an assemblage of sexually reproducing individuals of uniform appearance propagated
by seeds, the stability of which is maintained by selection to a standard;
“clone” means uniform material derived from a single individual and propagated entirely by vegetative
means;
“Convention” means the International Union for the Protection of New Varieties of Plants, signed at Paris,
France, on the 2nd December, 1961, and includes the revisions made in Geneva, Switzerland, on the
10th November, 1972, on the 23rd October, 1978, and on the 19th March, 1991;
[Definition inserted by Act 11 of 2001]
“cultivar” means an assemblage of cultivated individuals which is designated by any characteristics, morphological,
physiological, chemical, genetic or others, significant for the purposes of agriculture, forestry or
horticulture, and which, when reproduced sexually or asexually, retains its distinguishing features;
“date of application” means the effective date of an application for plant breeders rights in terms of subsection
(4) or (5), as the case may be of section seven;
[Definition amended by Act 11 of 2001]
“farmer” means a person who normally derives his sole or principal means of livelihood from agriculture
carried on by him in Zimbabwe;
[Definition inserted by Act 11 of 2001]
“foreign application” means an application made in terms of section seven in respect of a variety which has
its origin outside Zimbabwe;
[Definition amended by Act 11 of 2001]
“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 or
stability;
“kind”, in relation to a plant, means all related species, subspecies and varieties of any plant which are
known by the same common name;
“legal representative” means—
(a) the liquidator or receiver of a company;
(b) the representative recognized by law of any person who has died, become insolvent or bankrupt
or assigned his estate, is an infant or a minor, is of unsound mind or is otherwise under a disability;
“Minister” means the Minister of Agriculture or any other Minister to whom the President may, from time to
time, assign the administration of this Act;
“multiline” means an assemblage of individual breeding lines in a stated proportion;
“new variety” means any variety if plant which is a new variety as described in subsection (2) of section
three;
[Definition amended by Act 11 of 2001]
“officer” means the Registrar or any examiner or other officer appointed in terms of section four;
“plant” includes a fungus;
[Definition inserted by Act 11 of 2001]
“plant breeders rights” means plant breeders rights granted in terms of section fourteen;
“plant concerned” means the plant to which the application in terms of section seven relates and which is
claimed by the applicant to be a new variety;
[Definition amended by Act 11 of 2001]
“reciprocating country” means
(a) any State which is a party to the Convention or any other treaty to which Zimbabwe is also a
party and which provides for the protection of rights in plant varieties; or
(b) any State which is not a party to the Convention or to a treaty referred to in paragraph (a) but
which, in the Registrar’s opinion, effectively protects rights in plant varieties held by
(i) individuals who are citizens or residents of Zimbabwe; or
(ii) companies or bodies corporate which carry on business in Zimbabwe or have their principal
offices there;
[Definition inserted by Act 11 of 2001]
“Register” means the Register of Plant Breeders Rights kept in terms of section five;
“Registrar” means the Registrar of Plant Breeders Rights appointed in terms of section four;
“reproductive material” means a plant or part of a plant which is used to multiply the plant;
“sell” includes to offer, advertise, keep, expose. transmit, convey, deliver or prepare for sale or to exchange
or to dispose of for any consideration whatsoever or to transmit, convey or deliver in pursuance of such a
sale, exchange or disposal;
“stable”, in relation to a variety, means stable in the sense that its relevant characteristics remain unchanged
after repeated propagation or, in the case of a particular cycle of propagation, at the end of each such cycle;
[Definition substituted by Act 11 of 2001]
“uniform” means uniform in the sense that any variations are describable, predictable and commercially acceptable;
“variety” means—
(a) a botanical variety, cultivar, breeding line or clone which—
(i) is sufficiently homogeneous; and
(ii) can be differentiated from another of the same kind by one or more characteristics which
are capable of definition and recognition; and
(iii) is reasonably uniform and stable after repeated propagation;
or
(b) a hybrid; or
(c) a multiline.
PART IA
APPLICATION OFACT
3 Plants in respect of which plant breeders rights may be granted
(1) The Registrar shall not grant plant breeders rights under this Act in respect of any plant unless it is a new
variety of a prescribed kind.
(2) A plant shall be regarded as a new variety for the purposes of subsection (1) if
(a) it was not offered for sale or marketed
(i) in Zimbabwe prior to the date of application; or
(ii) in any other country in respect of
A. trees and grapevines, for longer than six years before the date of application; or
B. any other plant, for longer than four years before the date of application;
and
(b) it is distinct from any other variety the existence of which is a matter of common knowledge at the date
of application; and
(c) it is sufficiently uniform in its relevant characteristics, subject to the variation that can be expected from
the particular features of its propagation; and
(d) it is stable.
(3) For the purposes of paragraph (b) of subsection (2)
(a) the filing of an application in a foreign country for
(i) the granting of rights equivalent to plant breeders rights for a variety; or
(ii) the entering of a variety in an official register of varieties;
shall be deemed to render that variety a matter of common knowledge from the date of the
application, if the application leads to the granting of such rights or the entering of the variety
in the official register, as the case may be;
(b) common knowledge of a variety shall be presumed if the variety is
(i) already in cultivation or accepted for commercial purposes; or
(ii) included in any commercial or botanical reference collection; or
(iii) described precisely in any magazine, journal or other publication.
[Section substituted by Act 11 of 2001.]
3A Persons to whom plant breeders rights may be granted
The Registrar shall not grant plant breeders rights to any person except
(a) the State or the government of a reciprocating country; or
(b) an individual who is a citizen or resident of Zimbabwe or a reciprocating country; or
(c) a company or body corporate which carries on business or has its principal office in Zimbabwe or a
reciprocating country;
where the State or that government, individual, company or body corporate, as the case may be, is a breeder of the
new variety concerned.
[Section inserted by Act 11 of 2001.]
PART II
ADMINISTRATION
4 Registrar of Plant Breeders Rights and other officers
Subject to the Public Service Act [Chapter 16:14], there shall be—
(a) an officer, to be styled the Registrar of Plant Breeders Rights, who shall exercise such functions as are
conferred or imposed on the Registrar by this Act; and
(b) such examiners and other officers as the Minister considers necessary for the better carrying out of the
provisions of this Act.
[Section amended by Act 11 of 2001.]
5 Register of Plant Breeders Rights
(1) The Registrar shall cause to be kept a Register of Plant Breeders Rights, in which shall be entered—
(a) particulars of plant breeders rights which are in force and of any licences issued in respect thereof; and
(b) notice of all matters which are required by or under this Act to be entered in the Register and of such
other matters affecting the validity or ownership of plant breeders rights as the Registrar thinks fit.
(2) The Register shall be prima facie evidence of any matters entered therein which are required or authorized
by or under this Act to be entered therein.
PART III
APPLICATIONS FOR AND GRANTOF PLANT BREEDERS RIGHTS
6 Persons entitled to make application for plant breeders rights
(1) Subject to subsection (2), an application for the grant of plant breeders rights in respect of a new variety
may be made by or on behalf of any of the following persons
(a) a breeder of the new variety or his assignee; or
(b) the Minister, where the State is the breeder of the new variety or the breeder’s assignee; or
(c) the competent authority according to the laws of the country concerned, where the government of a
reciprocating country is the breeder of the new variety or the breeder’ assignee;
and may be made by that person alone or jointly with anyone else who is a breeder of the new variety or his
assignee.
(2) An application for the grant of plant breeders rights shall be made only by a person to whom the rights
may be granted in terms of section three A.
[Section substituted by Act 11 of 2001.]
7 Application for plant breeders rights and effective date thereof
(1) An application for the grant of plant breeders rights shall be—
(a) made in the prescribed form; and
(b) lodged with the Registrar in the prescribed manner.
(2) An assignee making or joining in an application shall furnish such proof of title or authority as the Registrar
may require or as may be prescribed.
(3) An application in terms of subsection (1) shall be lodged with the Registrar and
(a) shall indicate the origins of the plant concerned and give the full name of the breeder; and
(b) where the applicant or one of the applicants is not the breeder of the plant concerned, shall contain a
declaration that the applicant believes the person named as the breeder to be the breeder of the plant
concerned; and
(c) shall specify any foreign country where an application for the grant of rights similar to plant breeders
rights has been or is being made and, in relation to any such application, shall specify
(i) its number or title; and
(ii) its effective date.
[Subsection substituted by Act 11 of 2001.]
(4) Subject to subsection (5), the effective date of an application in terms of subsection (1) shall be the date
on which the application is received by the Registrar.
[Subsection substituted by Act 11 of 2001.]
(5) Where the person by or on whose behalf an application is made in terms of subsection (1) has filed an
earlier application for rights in regard to the plant concerned in a State which is a party to the Convention, the
effective date of his application in terms of subsection (1) shall be deemed to be the date on which that earlier
application was filed or, where he has filed two or more such earlier applications, the date on which the earliest
one was filed:
Provided that he shall not be entitled to the benefits of this subsection unless, in his application in terms of
subsection (1), he claims the priority of his earlier application and, within three months after lodging his application
with the Registrar in terms of subsection (1), submits to the Registrar a copy of the documents which constituted
the earlier application, certified to be a true copy by the authority with which the earlier application was
filed.
[Subsection substituted by Act 11 of 2001.]
8 Description and samples of new variety
(1) An application in terms of section seven shall be accompanied by—
(a) a complete description of the plant concerned; and
(b) samples of reproductive material necessary for the reproduction of the plant concerned in such quantities
as the Registrar may require.
(2) The description referred to in paragraph (a) of subsection (1) shall—
(a) commence with a title naming the plant concerned or giving it a temporary designation until the grant of
plant breeders rights; and
(b) contain or be accompanied by such other particulars as may be prescribed or required by the Registrar;
and
(c) specify the procedure to be used for the maintenance and reproduction of the plant concerned.
(3) The Registrar may require—
(a) that the plant concerned or the plant or plants from which it originated be shown to him or to a person
designated by him; and
(b) that any additional information or specimens which he considers necessary to determine whether or not
the plant concerned constitutes a new variety be furnished to him.
9 Naming of plant concerned
(1) The name of the plant concerned shall be proposed by the person who applies for the grant of plant
breeders rights but such name shall be subject to the approval of the Registrar.
(2) The Registrar may at any time before the grant of plant breeders rights, after considering any representations
made by the applicant or an objector, reject any name proposed in terms of subsection (1) if, in the Registrar’s
opinion, the name proposed does not satisfy the requirements of subsection (3) or (4).
[Subsection substituted by Act 11 of 2001.]
(3) The name proposed in terms of subsection (1) shall be the generic name of the plant concerned and may
consist of any word, combination of words, combination of words and figures or combination of letters and figures,
with or without any meaning:
Provided that
(i) whatever combination is used, the name shall allow the plant concerned to be identified; and
(ii) the name shall not affect the existing rights of any third party.
[Subsection substituted by Act 11 of 2001.]
(4) Where a name proposed in terms of subsection (1) has already been used for the plant concerned in Zimbabwe
or in a State which is a party to the Convention, or is proposed or registered in such a State, the Registrar
shall approve only that name.
[Subsection substituted by Act 11 of 2001.]
(5) An appeal shall lie from any decision of the Registrar under subsection (2).
[Subsection substituted by Act 11 of 2001.]
10 Refusal of application
(1) The Registrar may refuse any application made in terms of section seven if prima facie it appears to him
that— (a) the application does not comply with the requirements of this Part; or
(b) the plant in respect of which the application has been made is not a new variety of a prescribed kind; or
(c) the applicant is not entitled in terms of this Act to make the application; or
(d) the growing of the plant concerned, or the grant of plant breeders rights in respect of it, would be contrary
to public order or morality; or
[Paragraph substituted by Act 11 of 2001.]
(e) the production of the plant concerned would require the repeated use of the reproductive material of
another plant variety for which plant breeders rights have been granted