Plant Variety Protection, also called a “plant breeder’s right”, is a form of intellectual property right granted to the breeder of a new plant variety. According to this right, certain acts concerning the exploitation of the protected variety require the prior authorization of the breeder. Plant variety protection is an independent sui generis form of protection, tailored to protect new plant varieties and has certain features in common with other intellectual property rights. In 2014, Uganda passed the Plant Variety Protection Act (“the Act”) with the aim of providing for the promotion of development of new plant varieties and their protection as a means of enhancing breeder’s innovations and rewards through granting plant breeders rights. The Act grants different duties to different bodies/ entities in relation to the discovery, registration and later implementation of the rights accorded to the different breeders as per the Act.

The First is the Minister for Agriculture under the Ministry of Agriculture, Animal Industry and Fisheries. The Ministry is responsible for the general Plant Variety Protection in Uganda. The Act indicates that the Minster has the duty to constitute the Plant Variety Protection Committee. Furthermore, the Minster has the duty to make regulations for giving full effect to the provisions of the Act.

Second is the Office of the Commissioner of Crop Inspection and Certification which is directly in charge of creating a register of all plant varieties in Uganda and updating the same. The office has the main responsibility of receiving and examining applications for the registration of plant breeder’s rights and assigning the plant varieties for testing. 

This office is also tasked with the responsibility of publishing applications of the plant breeder’s rights in the Gazette as well as any objections thereto. Upon successful grant of the rights, the registration and later issue of the certificate is done by this office. Finally, the major duty of implementation and protection of plant breeder’s rights is carried out by this Office.

Third is the Registrar who is appointed by the Minster and heads the Office of the Commissioner of Crop Inspection and Certification office. The Registrar is responsible for maintaining a register of plant varieties which are entitled to protection under this Act. The Registrar is also responsible for executing all the aforementioned functions of the Office and for the day to day administration of the Office. The Registrar is answerable to the Commissioner for crop protection in the implementation of the Act.

Fourth is the Plant Variety Protection Committee which is constituted by the Minster. The main roles of this committee are to advise the Minster on policies relating to plant varieties, approve plant varieties to be registered. It is also tasked with the duty to recommend and review the policy of the Office and perform any other duties assigned to it. 

Plant variety protection in Uganda applies to the following;

1. A plant variety;
2. Derivatives of plant varieties;
3. A plant breeder including the employer of the person breeding and or their respective Successors in title; and
4. Export of seeds of plant varieties.

Any person who qualifies can apply for protection under the aforementioned law.

Plant breeder’s rights in respect of a new variety 

Once a plant breeder’s rights are registered according to the law, the beneficial rights become personal property and are exclusive in nature and the beneficial rights are further capable of assignment, transmission and transfer with the following characteristics; 

1. The exclusive right to sell, including the right to license other persons to sell and export plant varieties and reproductive material of plants of that variety;
2. The exclusive right to produce, including the right to license other persons to produce, reproductive material of plants of that variety for sale.

Dependant varieties and the rights there under

A variety is dependent on another if its nature is such that repeated production of the variety is not possible without repeated use of the other variety or where it is essentially derived from the other variety and the other variety is not itself essentially derived from a third variety.

In such cases, the holder of plant breeder’s rights shall have in relation to any variety which is dependent on the protected variety, the same rights as the holder has as a plant breeder in relation to the protected variety.

Who can apply for plant variety protection in Uganda?

A breeder or his/her successor who can be; 

1. A citizen;
2. A foreigner;
3. A Resident of Uganda; and
4. A Non-Resident of Uganda.

The Application can be made in respect of a plant variety which is either bred locally in Uganda or outside Uganda.

Joint Applications

This is a form of application that can be made where two or more persons are entitled to make an application for plant breeder’s rights in respect of a new variety, whether by reason that they bed the plant jointly or independently.

It is also important to note that where two or more persons breed a new plant variety jointly, one of those breeders or a successor of one of those breeders is now allowed to make an application for plant breeders’ rights in respect of that variety other than jointly with, or with the consent in writing of the other person, or any other person jointly entitled to make application of those rights.

Examination/ what is protected?

In order for a plant variety to be protected, it ought to have the following traits;

• Innovation

Innovation in this respect means;

1. Any new alteration, modification, improvement of collective and cumulative knowledge or technology;
2. The use of properties and processes of any plant varieties or any part of a plant variety; and
3. Any, or enhanced use as a result of cumulative knowledge or technology.

 

• The plant variety ought to be New

A variety is taken to be new if at the time of filing of the application for breeder’s rights, propagating/harvested material of the variety has not been sold or disposed of to others by or with the consent of the breeder for the purpose of commercial exploration of the variety, in any other country other than Uganda in which the application has been filed earlier than four years, or in the case of trees or vines, earlier than six years before that date. 

• A plant variety is also tested for three things;

• Distinct variety

A variety is taken to be distinct if it is clearly distinguishable from any other variety whose existence is a matter of common knowledge at the time of filling of the application.

• Uniform variety

A variety shall be taken to be uniform if it has characteristics that are consistent form plant to plant.

• Stable variety

A variety is taken to be stable if its relevant characteristics remain unchanged after repeated propagation or, on the case of a particular cycle of propagation, at the need of the cycle.

• Test growing of plant varieties

This is only carried out if the plant variety protection committee considers it necessary. Test growing is performed by the variety testing and evaluation institution with the aim of deterring whether the plant variety is distinct, homogenous or stable; or whether the plant variety will, if grown in the country, exhibit the claimed distinctiveness, homogeneity and stability.

Required Information

1. 1. The description or descriptions and photograph of the Plant Variety.
   2. The name and address of the breeder.
   3. The address of service of the breeder.
   4. Any reports from any previous test growing or examinations done abroad.(For Foreigners)

Special requirements for plant varieties form outside of Uganda

There are special requirements for plants having their origin outside Uganda in order to have a particular characteristic and they include the following;

1. Statistically valid, Multi-location Variety trials have been carried out in Uganda for at least three growing season for annuals and two breeding cycles for perennials have demonstrated that the variety has the specific characteristics as claimed by the applicant.
2. The plant variety protection committee also ought to be satisfied that;

1. Statistically valid trials on variety carried out outside Uganda have demonstrated that the variety has that specific characteristic;
2. The natural environment outside the country under which the statistically valid trials were carried out is similar to the environment in Uganda;
3. A test growing of the variety carried out in the country is equivalent to that carried out outside Uganda;
4. A test growing of the variety carried out at a place outside Uganda has demonstrated that the variety has that characteristic;
5. If a test growing of the variety in Uganda that would be sufficient to demonstrate whether the variety has that characteristic would take longer than two years; and 
6. The concerned breeder submits to the extent possible the pedigree of the variety indicating the identity of the folk varieties used as parents.

Procedure of registration

1. The registrar receives the application for registration for the plant breeder’s rights.
2. The registrar then assigns that testing of the applicant’s variety to the National Seed Certification Services Unit.
3. The application is then published in the gazette.
4. The registrar then publishes any objection against an application of the plant breeder’s rights and conduct a hearing of the objection.
5. The registrar then issues a certificate for plant breeder’s rights for the successful applicant.

Duration of registration procedure

1. Upon receipt of the application the registrar is required to present the application to the Plant Variety Protection Committee within 6 months.
2. The committee shall then meet to take a decision on the application within 6 months.
3. The registrar is then required to inform the applicant of the decision of the committee.

Objection to an application

Any person who considers that the commercial or public interests would be affected by the grant of the breeder’s rights to the applicant can object to an application. In addition, any person that considers the application in question does not fulfill the prescribed criteria can also object to it.

Grant of rights

The plant breeder’s rights are granted once the committee is satisfied that;

1. 1. There has been no objection filed against the application
   2. The plant variety is new, distinct, uniform and stable
   3. The rights have not been granted to another person
   4. There has been no earlier application for those rights that has not been withdrawn or disposed of.
   5. The Plant Variety Protection Committee is vested with the roles of naming the plant variety and the same ought to be registered.

When the office grants the plant breeder’s rights, the Registrar shall then enter on the Register all such necessary information as availed to it by the Applicant.

Term of protection of plant breeder’s rights

The rights are protected for a period of twenty years in the case of annual crops and for a period of twenty five years for trees, vines and other perennials commencing on the day of filling the application.

Remedies for infringement of the plant breeder’s rights

The infringement of these rights is actionable at the instance of the holder of the rights.

The available remedies under court action are damages, an injunction and any other relief that court may grant. 

Revocation of rights

The plant variety protection committee has the right to revoke the right of a breeder if;

1. They establish that the plant variety was not new;
2. If facts exist which, if they had been known before the grant of those rights would have resulted in the refusal of the grant;
3. It is in public interest.

Authors

Augustine Obilil Idoot

Partner

aidoot@kaa.co.ug

Mercy Makabayi

Legal Assistant

mmakabayi@kaa.co.ug

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