PROTECTION OF NEW PLANT VARIETIES ACT
ARRANGEMENT OF SECTIONS
SECTION
PART I
Preliminary
1. Short title
2. Interpretation
PART II
Establishment, Powers and Functions of Office
3. Establishment of Office
4. Staff of Office
5. Powers and functions of Office
6. Examination of register
PART III
Breeder’s Rights
7. Criteria for protection
8. Novelty
9. Distinctness
10. Homogeneity
11. Stability
PART IV
Entitlement to Protection
12. Right to apply for protection
13. Presumption of title
14. Application by person other than owner
15. Persons entitled to file applications
16. Agents
PART V
Assignment and Transfer of the Application or of the Breeder’s Right
17. Assignment and transfer
18. Joint applicants and joint holders of rights
PART VI
Scope and Duration of Breeder’s Rights
19. Scope of the breeder’s right
20. Exceptions to breeder’s right
21. Exhaustion of breeder’s right
22. Maintenance of propagating material
23. Period of protection
24. Renewal fees
PART VII
Termination, Invalidation and Forfeiture
25. Termination of protection
26. Invalidation
27. Forfeiture
PART VIII
Procedure in Cases of Requests for Invalidation and Forfeiture
28. Procedure in cases of requests for invalidation
29. Procedure for forfeiture of breeder’s right
PART IX
Applications
30. Application
31. Priority
32. Documents and material to be furnished for priority
33. Where application not in English
PART X
Variety Denomination
34. Application and procedure for variety denomination
35. Use of variety denomination
36. Prior rights of first parties
37. Cancellation of registered variety denomination
38. Filing date
PART XI
Examination of Application
39. Formal examination of application
40. Examination of novelty, distinctness, etc.
41. Grant and refusal of breeder’s right
42. Provisional protection
PART XII
Opposition
43. Opposition
Act 18, 2023.
[Date of Commencement: ON NOTICE]
PART I
Preliminary
<NT:2.33333,1.5625,Note>missing page no 287 "/>1. Short title
This Act may be cited as the Protection of New Plant Varieties Act, 2023, and shall come into operation on such date as the Minister may, by Order published in the Gazette, appoint.
In this Act, unless the context otherwise requires—
"Appeals Board" means the Protection of New Plant Varieties Board established under section 45;
"Authority of a Contracting Party" means the Authority entrusted with the implementation of the law on the protection of new varieties of plants for that Party;
"Contracting Party" means a State other than Botswana or an intergovernmental organisation;
"Court" means the High Court;
"gene bank" means a biological material repository that collects, processes, stores and preserves genetic material for future use;
"holder" means the holder of a breeder’s right;
"Office" means the Plant Breeder’s Rights Office established under section 3;
"periodical" means a journal circulating in Botswana or other publication issued by the Plant Breeder’s Office;
"plant breeder" means—
(a) a person who bred a variety or discovered and developed a variety;
(b) a person who is the employer of the person referred to under paragraph (a) or who has commissioned the latter’s work; or
(c) the successor in title of either the person referred to under paragraph (a) or (b), as the case may be;
"protected variety" means any variety that is the subject of a breeder’s right;
"register" means the Register of Plant Breeder’s Rights kept under section 5;
"Registrar" means the Registrar of Plant Breeder’s Rights appointed under section 4; and
"variety" means a plant grouping within a single botanical taxon of the lowest known rank, which grouping, irrespective of whether the conditions for the grant of a breeder’s right are fully met, can be defined by the expression of the characteristics resulting from a given genotype or combination of genotypes, distinguished from any other plant grouping by the expression of at least one of the said characteristics and considered as a unit with regard to its suitability for being propagated unchanged.
(a) novel;
(b) distinct;
(c) homogenous;
(d) stable; and
(e) given a variety denomination which is acceptable for registration in accordance with section 32.
<NT:2.33333,1.5625,Note>missing page 289 (Section nos 3-7) "/>8. Novelty
(1) Subject to subsection (2), a variety shall be considered new if the propagating or harvested material of the variety has not been sold or otherwise disposed of with the authorisation of the plant breeder—
(a) in Botswana, for longer than one year before the date on which protection is applied for under this Act; and
(b) outside Botswana, for longer than six years in the case of trees or vines or longer than four years in the case of other plants, before the effective filing date in Botswana.
(2) It shall not be considered detrimental to the novelty of a variety if the propagating or harvested material of that variety has been sold or otherwise disposed of in Botswana with the authorisation of its breeder or his or her successor in title for up to four years prior to the inclusion of the genus or species to which the variety belongs in the list of genera and species specified in the Regulations, and for a maximum of six months after such inclusion where the application is filed within that six months period.
(1) A variety shall be considered to be distinct if it is clearly distinguishable from any other variety whose existence is a matter of common knowledge at the time of the filing of the application or, where relevant, at the priority date.
(2) Common knowledge of a variety may be established by reference to various factors such as—
(a) the exploitation of the variety already in progress;
(b) grant of a breeder’s right in the variety;
(c) entry of the variety in a catalogue of varieties admitted to trade;
(d) entry in the register of varieties kept by a recognised professional association; or
(e) inclusion of the variety in a reference collection.
(3) The filing, in any State, of an application for a breeder’s right, or for entry in a catalogue of varieties admitted to trade, shall be deemed to render the variety that is the subject of the application a matter of common knowledge from the date of the application, provided that the application leads to the grant of the breeder’s right or the entry in the catalogue, as the case may be.
A variety shall be considered to be homogeneous if its plants show the same expression of the same characteristics, subject to the variation which may be expected in view of the particular features of its propagation.
A variety shall be considered to be stable if its plants’ relevant characteristics remain unchanged after repeated propagation or, in the case of a particular cycle of propagation, at the end of each such cycle.
PART IV
Entitlement to Protection
12. Right to apply for protection
(1) Subject to this Part, the breeder of a variety shall be entitled to apply to protect a variety under this Act.
(2) Where two or more persons have bred, or discovered and developed, a variety jointly, the right to protection shall vest in them jointly and, subject to any agreement to the contrary between the joint breeders, their shares in the property of the breeder’s rights shall be equal.
(3) Where a variety has been bred, or discovered and developed by several persons independently of each other, the right to apply for the grant of the breeder’s right shall belong to the person who has first applied for protection or filed an application with an earlier priority date with the Office.
(4) Where a variety has been bred, or discovered and developed, in execution of a commission or a contract of employment, the right to apply to protect the variety shall belong, in the absence of contractual provisions to the contrary, to the person who commissioned the work, or to the employer as the case may be.
An applicant shall, in the absence of proof to the contrary, be presumed to be entitled to apply to protect a variety under this Act, but where the application is made by a successor in title, it shall be accompanied by sufficient proof of the successor’s title.
14. Application by person other than owner
Where an application is filed for a breeder’s right by a person who is not entitled to apply to protect a variety, the person entitled may bring an action before the Court for the assignment to him or her of the application or, if the application is already granted, of the breeder’s right.
15. Persons entitled to file applications
(1) An application for the grant of a breeder’s right may be filed by the owner of a variety who is a national or resident of—
(a) Botswana;
(b) a Contracting Party; or
(c) any State which, not being a Contracting Party, grants reciprocity of treatment to Botswana.
(2) For the purposes of subsection (1)(b), "national" means, where the Contracting Party is a State, a national of that State, and where the Contracting Party is an intergovernmental organisation, the nationals of the States that are members of that organisation.
(1) An application for the grant of a breeder’s right on behalf of a person whose ordinary residence or principal place of business is outside Botswana, in this section referred to as a "principal", shall be filed by an agent who is resident in, and is practising in Botswana in accordance with the relevant law.
(2) The principal shall give the agent power to act on his or her behalf before the Office and in legal proceedings relating to the grant of a breeder’s right.
(3) For the purposes of instituting legal proceedings by or against any person represented by an agent, the place which the Office identifies as the address of the agent, or where there are several agents, the address of the main agent or agent first designated, shall be deemed to be the place where the right in the variety is located.
PART V
Assignment and Transfer of the Application or of the Breeder’s Right
(1) An application for the grant of a breeder’s right may be assigned or otherwise transferred to another person.
(2) An assignment or transfer shall be in writing and shall be signed by the parties.
(3) An assignment or transfer under subsection (1) shall be registered in the register on the written request of the assignor or transferor and on payment of the prescribed fee.
(4) No assignment or transfer to a successor in title shall have effect against a third party unless it has been registered in the register.
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