Extending the Frontiers of Intellectual Property Rights; Plants Varieties Protection Act in Focus

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By Abdulwahab Muhammed Yusuf Esq

The Plants Varieties Protection Act (PVPA) 2021 and its purpose.

PVPA, the game changer as I choose to call it began as a bill sponsored by a member of the green chambers – Hon. Munir Babba Dan Agundi – Chairman, House Committee on Agriculture, Colleges and Institutions and was signed into law by President Muhammadu Buhari in May 2021.

Being a sui generis system, PVPA is an attempt by the Federal Government of Nigeria to – not only recognize, but to also protect by an effective legal cum institutional framework, the rights of commercial plant breeders and farmers in respect of their contribution made in  developing new plant varieties.

The overall objective of the law is to protect plant varieties, encourage investment in plant breeding and crop variety development and establish a Plant Variety Protection Office (PVPO) for the promotion of increased staple crop productivity for smallholder farmers in Nigeria. This will necessarily accelerates agricultural development and encourage investment for research and development.

General overview of the act.

The PVPA generally has 11 parts with 57 sections. Namely

Part I – Preliminary provisions

Part II – Plant Variety Protection Office

Part III — Varieties to Be Protected

Part IV — Application for Plant Variety Protection Rights

Part v — Consideration and Disposition ofApplication

Part VI — Provisional and Final Protection

Part vii — Nullity, Cancellation and Surrender of Breeder’s Right

Part ix — Plant Breeders’ Rights Development Fund, Accounts, Audit and Annual Report

Part xi — General Provisions

The croquette of this act is the recognition of a new rights known as PlantsBreeders’ Right. Plant variety protection provides legal protection of a plant variety to a breeder in the form of Plant Breeder’s Rights. Plant Breeder’s Rights (PBRs) are intellectual property rights that provide exclusive rights to a breeder of the registered variety.

The act in its effort to entrench breeders rights, established the Plant Variety Protection Office (PVPO) as contained in section 3 thereof ‘’There is established the Plant Variety Protection Office (in this Act referred to as “the Office”) which is domiciled in the National Agricultural Seeds Council’’ the office shall;

  • grant breeder’s rights; (b) maintain a register and provide information on plant breeders’ rights issued in Nigeria; (c) facilitate transfer and licensing of plant breeder’s rights; (d) collaborate with local and international bodies whose functions relate to plant breeders’ rights matters; and (e) perform other functions as are necessary for the furtherance of the objects of this Act (section 5 )
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A registrar is also appointed by section 4 of the act who shall be responsible for the day-to-day management of the office. He is also mandated to maintain breeders’ right register.

One interesting thing about this act is the establishment of An Ad-hoc Committee to be known as the Plant Variety Protection’ Advisory Committee (in this Act referred to as “the Committee”) (section 9). The committee members among other persons includes; The Registrar of Trademark, The Registrar of Patent and Designs, the Ministry (i.e., ministry of agriculture) a registered plant breeder association, a registered seed traders association, a registered farmers’ association, a university offering a course on plant breeding, the Attorney-General of the Federation’s office. The committee among other things have the power to hear matters relation to plant variety protection.

Criteria for Protecting and Registration of Plant Variety

It is important to note that registration is open to only plant variety which is

  • New: The variety is deemed to be new if, at the date of filing of the application for a breeder’s right, propagating or harvested material of the variety has not been sold or otherwise disposed of to any person with the consent of the breeder.
  • Distinct: A variety is deemed to be distinct where 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.
  • Uniform: it is sufficiently uniform in its relevant characteristics; subject to the variation that may be expected from the particular features of its propagation.
  • Stable: where 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.
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Who can apply for the Grant of Breeders’ Right?

  • A breeder of a new variety.
  • The successor-in-title of the person who bred, and
  • An assignee.

Content of the Application

 The application is usually made to the Registrar and must contain;

(a) the name and address of the applicant; (b) where the applicant is the successor-in-title of the person who bred, or discovered and developed the variety: (I) proof of title or authority in the form and content satisfactory to the Registrar or as may be specified by Regulations establishing the existence and validity of the assignment or succession, and (ii) the name and address of the person who breed, or discovered and developed the variety; (c) the proposed denomination and the description of the characteristics of the variety as the Registrar may require; (d) samples of the propagating material in the quantities as the Registrar may require; and (e) any additional information, documents and material that may be required in connection with the application as may be prescribed in the Regulations.

Notification/Grounds of Objection

The Registrar is mandated by section 23 of the act to publish in the Federal Government Gazette or in two national daily newspapers of wide circulation, a notice of every filed application for plant breeder’s right. Upon such publication, a person can file an objection stating why an applicant for breeder’s right should not be registered. The grounds for objection are; (a) applicant is not entitled to file the application; (b) application contains a material misrepresentation; and (c) contents of the application do not comply with this Act or the Regulations (section 25)

Certification.

For each variety for which breeder’s right is granted, the Registrar shall: (a) issue a certificate of registration to the holder; (b) enter the variety in the register as provided for under section 6 of this Act; and (c) publish a notice of the grant of breeder’s right and the approved denomination in the Federal Government Gazette (section 27(5)).

Rights and Privileges of a Breeder

Provided that a variety is protected, none of the following shall be done save with the authorisation of the holder of the breeders right: (a) production or reproduction (multiplication); (b) conditioning for the purpose of propagation; (c) offering for sale; (d) selling or marketing; (e) exporting; (f) importing; and (g) stocking for any purposes mentioned in paragraphs (a) – (f) (section 29)

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Limitation to the Breeders’ Right.

The breeder’s right shall not extend to any act carried out: (a) privately and for non-commercial purposes; (b) for experimental purposes; and (c) for the purpose of breeding any other variety.

Duration of protection for a registered variety.

Breeder’s right granted under this act does not inure in perpetuity thus, it shall expire after 20 years except for vines and trees which shall expire after 25 years of the grant. (Section 32). However, the breeder’s right is subject to nullification/cancellation by the Registrar and surrender by the holder in accordance with sections 37 & 38 respectively.

Protection and Remedy for Infringement of the Breeders’ Right.

The Act provides that a breeders’ right is protected by both civil and criminal measures as enshrined in any written law. In this regard, a holder of Breeders’ Right can bring an action against any person for the infringement of his right before the court.

Conclusion.

The PVPA is an ambitious Act, calculated to boost investment in the Nigeria’s agricultural sector. All hands must be on deck to actualize the objectives of the Act. Although with the high rate of illiteracy and ignorance amongst farmers and agricultural scientist, a huge gap of implementation needs to be filled. A continuous farmers’ training and orientation will go a long way to bridge this gap.

Furthermore, they is likely to be an overlap between the existing Intellectual property practice in areas like trademark and patent. Until the regulations on practice and procedures in respect of PVPA is made, one can only speculate.

ABDULWAHAB MUHAMMED YUSUF writes from the law office of Dikko& Mahmoud Solicitors and Advocates, Abuja. He can be reached at 08152253527 or email at abdoolwahab33@gmail.com

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