Monday, July 06, 2009

A Plant Breeders’ Right is the intellectual property right, which is used for the protection of plant varieties.  Plant Breeders’ Rights are statutory rights granted under Plant Breeders’ Rights Act 15 of 1976.  
Plant Breeders’ rights were dealt with in two cases between well known horticulturalist Keith Kirsten and Weltevrede Nursery, a local nursery located in Devon Valley, Stellenbosch.
In this case Keith Kirsten’s (Pty) Ltd sued the Weltevrede nursery for R30 488 being damages due to infringement of a Plant Breeders’ right which it held in respect of a pink striped burgundy veined variety of canna, which was registered under the denomination Canna “Phasion”.  In its defense the Weltevrede Nursery alleged that the plant was neither new nor distinct and that Keith Kirsten was not the breeder of the variety and as such had no right to apply for a plant breeders’ right in respect thereof.
It became highly contentious between the parties as to who had actually discovered the variety.  This is important as the Act defines “breeder” to include, the person who bred or discovered and developed the variety or the employer of such a person where this person developed the variety in the scope of his employment or the successor in title of the aforementioned persons.  Kirsten alleged that while judging Mr. Theunis Kruger’s garden as an entrant of a gardening competition he saw the variety.  Kirsten alleged that Kruger had willingly supplied him with cuttings of the variety to grow up and develop. Weltevrede Nursery contended that the variety had been known and sold prior to the application for a plant breeders’ right in the nurseries of Rasmussen, who had discovered the variety growing wild in Howick almost thirty years previously.  The court a quo held that based on the credibility of the witnesses and on a balance of probabilities that the variety was in fact new and distinct and that Kirsten, as the discoverer and developer of the variety was in fact entitled to apply for a plant breeders’ right.  The court awarded R10 000, as a reasonable royalty in lieu of damages to Kirsten.
This was taken on appeal to the supreme court of appeal (SCA).  The SCA found that Kirsten had not in fact discovered the variety as Kruger had been fully aware of the variety, which he in fact pointed out to Kirsten.  The court held that you can not ordinarily be held to be the discoverer of a variety when someone else brings the variety to your attention and as such Kirsten could not be the discoverer of the variety.  Kirsten then tried to rely on the fact that he had developed the variety through propagating it and readying it for marketing.  On this point the court found that multiplying and testing a plant, as was done in this case, is not the same as developing the plant and as such Kirsten could not be the developer.  Therefore in this instance the court held that Kirsten was not entitled to apply for plant breeders’ rights protection in respect of this variety.  Due to this finding a finding on the issue of whether the variety was new and distinct became irrelevant.
Robyn-Leigh Merry is a candidate attorney at Bowman Gilfillan in the Intellectual Property Department.