| (1) |
The effect of the protection given under this Act by the grant of a plant breeder's right shall be that prior authority shall during the currency of the plant breeder's right be obtained by way of licence under section 25 or 27 by any person intending to undertake the— |
| (a) |
production or reproduction (multiplication); |
| (b) |
conditioning for the purpose of propagation; |
| (c) |
sale or any other form of marketing; |
| (f) |
stocking for any of the purposes referred to in paragraphs (a) to (e), of— |
| (ii) |
harvested material, including plants, which was obtained through the unauthorised use of propagating material of the relevant variety. |
| (2) |
The Minister may by notice in the Gazette extend the effect of the protection contemplated in subsection (1) to products made directly from harvested material contemplated in subsection (1)(ii). |
| (3) |
The provisions of subsections (1) and (2) shall not apply if the breeder has had reasonable opportunity to exercise his or her right in respect of the propagating material of the protected variety. |
| (a) |
The provisions of subsections (1), (2) and (3) shall also apply to varieties— |
| (i) |
which are essentially derived from the protected variety, where the protected variety is not itself an essentially derived variety; |
| (ii) |
which are not distinguishable from the protected variety as contemplated in section 2(2)(b); or |
| (iii) |
the production of which requires the repeated use of the protected variety. |
| (b) |
For the purposes of paragraph (a)(i) a variety shall be deemed to be essentially derived from another variety if— |
| (i) |
it is predominantly derived from that other variety, or from a variety that is itself predominantly derived from that other variety, while retaining the essential characteristics of that other variety; and |
| (ii) |
it is clearly distinguishable from that other variety; and |
| (iii) |
except for the differences which result from the process of derivation, it conforms to that other variety in respect of the essential characteristics. |
| (5) |
Notwithstanding the provisions of subsection (1), the holder of a plant breeder's right shall during the period which the Minister may prescribe as a period for the exercise of sole rights in terms of section 25(4) in respect of the kind of plant to which such a variety belongs, have the sole right to undertake with regard to the relevant variety any activity referred to in subsection (1) or to have such activity undertaken by any other person. |
| (6) |
Notwithstanding the provisions of section 23A(a), a person who procured any propagating material of a variety in a legitimate manner shall not infringe the plant breeder's right in respect of the variety if he or she— |
| (a) |
resells that propagating material; |
| (b) |
subject to the provisions of subsection (2), sells any plant, reproductive material or product derived from that propagating material for purposes other than the further propagation or multiplication thereof; |
| (c) |
uses or multiplies that propagating material in the development of a different variety; |
| (d) |
uses that propagating material for purposes of bona fide research; |
| (e) |
uses that propagating material for private or non-commercial purposes; or |
| (f) |
is a farmer who on land occupied by him or her uses harvested material obtained on such land from that propagating material for purposes of propagation: Provided that harvested material obtained from the replanted propagating material shall not be used for purposes of propagation by any person other than that farmer. |
| (7) |
Notwithstanding the provisions of subsection (6)(b), an ornamental plant in respect of which a plant breeder's right has been granted and any part thereof which is normally sold for purposes other than the multiplication thereof, shall enjoy the protection of such right when it is used commercially as propagating material in the production of such ornamental plant or of a cut flower. |
| (8) |
A notice in terms of subsection (2) shall, in any case where the holder of the plant breeder's right in question is a citizen of, or is domiciled in, a convention country or an agreement country or, in the case of a juristic person, has a registered office in a convention country or an agreement country, be issued only if such holder can in terms of the laws of such country obtain corresponding protection in that country. |
[Section 23 substituted by section 13 of Act No. 15 of 1996]
Maintenance Act, 1998
