Plant Breeder's Rights Act, 2018
Act 20 of 2018
- Assented to on 20 August 2018
- Commenced on 31 August 2020 by Government Notice of 2020
- [This is the version of this document from 24 August 2018.]
Part I – Preliminary
1. Short title and commencementThis Act may be cited as the Plant Breeder’s Rights Act, 2018, and shall come into operation on such date as the Minister may appoint by notice published in the Gazette.
2. InterpretationIn this Act, unless the context otherwise requires—"Appeals Committee" means a committee responsible for hearing appeals from the decision of the Registrar under this Act;"assignee" in relation to a new variety, means—(a)a person who has derived his title to a new variety for Malawi directly or indirectly from the breeder or owner thereof; or(b)the legal representative of a person who has derived his title to a new variety for Malawi directly or indirectly from the breeder or owner thereof;"breeder" means—(a)a person or legal entity who bred, or discovered and developed a variety;(b)a person or legal entity who is the employer of the person mentioned under (a) or who has commissioned the latter’s work; or(c)the successor in title of the first or second person mentioned in (a) or (b) as the case may be;"Committee" means the Technical Advisory Committee appointed under section 4;"date of application" means the effective date of an application for plant breeder’s rights in terms of section 13;"foreign application" means an application made in terms of section 51, in respect of a variety which has its origin outside Malawi;"hybrid" means the first generation progeny of a cross which is produced under controlled pollination with parents sufficiently uniform to permit repeated production of the hybrid without change in uniformity or stability;"kind" in relation to a plant, means all related species, sub-species and varieties of any plant which are known by the same common name;"legal representative" means the—(a)liquidator or receiver of a company; or(b)representative recognized by law of any person who—(i)has died;(ii)has become insolvent or bankrupt;(iii)has assigned his estate;(iv)is an infant or minor;(v)is of unsound mind; or(vi)is otherwise under a disability;"new variety" means any plant variety that complies with the requirements of section 11;"officer" means the Registrar or examiner or any other officer appointed in terms of section 8;"Plant Breeder’s Rights Fund" means a fund established under section 43 (1) of this Act;"plant breeder’s rights" means plant breeder’s rights granted in terms of section 23;"Plant Breeder’s Rights Department" means a department established under section 7 of this Act;"plant concerned" means the plant to which an application in terms of sections 14 and 15, or foreign application, as the case may be relates, and which is claimed by the applicant to be a new variety;"Register" means the Register of Plant Breeder’s Rights kept in terms of section 10;"Registrar" means the Registrar of Plant Breeder’s Rights appointed in terms of section 8;"reproductive materials" means a plant or part of a plant which is used to multiply the plant;"sell" includes, to offer, advertise, keep, expose, transmit, convey, deliver or prepare for sale or to exchange or to dispose of, for any consideration whatsoever or to transmit, convey or deliver in pursuance of such a sale, exchange or disposal; 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—(a)defined by the expression of the characteristics resulting from a given genotype or combination of genotypes;(b)distinguished from any other plant grouping by the expression of at least one of the said characteristics; and(c)considered as a unit with regard to its suitability for being propagated unchanged.
Part II – Administration
3. Administration of the ActThis Act shall be administered by the Minister and such other officers subordinate to him as may be appointed under this Part, and whose offices shall be public offices.
4. Technical Advisory Committee
5. Meetings of the Committee
6. Functions of the CommitteeThe Committee pertaining to the implementation of this Act shall—
7. Plant Breeder’s Rights DepartmentThere is hereby established a department of the Government to be known as the Department of Plant Breeder’s Rights to be under the supervision of the Secretary responsible for Agriculture which shall be responsible for registration of plant breeder’s rights and matters connected thereto.
8. Registrar of plant breeder’s rights and other staffThere shall be appointed in the public service,—
9. Functions of the RegistrarThe Registrar shall—
Part III – Application for and grant of plant breeder's rights
11. Requirements for plant breeder's rights
12. Prior knowledge or publication of new plant excused in certain circumstances
13. Persons entitled to make application
14. Application for plant breeder’s rights and effective date thereof
15. Description and samples of new varieties
16. Name of plant variety
17. Refusal of application
18. Amendment of an applicationWith the consent of the Registrar, a person who has made an application in terms of section 14 may, at any time before the grant of plant breeder’s rights, add to or alter the description lodged with his application or the proposed name of the plant.
19. Publication of an applicationIf, in the opinion of the Registrar, a variety in respect of which an application has been made in terms of section 14 appears a"to be a new variety of a prescribed kind and the applicant appears to be entitled to apply for plant breeder’s rights in respect thereof, the Registrar shall publish in the Gazette a notice specifying the following particulars in relation to the application—
20. Rights of applicant for plant breeder's rightsAn applicant for plant breeder’s rights shall, during the period from the publication of the notice in terms of section 19 until for plant breeder’s rights are granted, refused or rejected in terms of this Act, have the sole right to sell, reproduce and multiply reproductive rights material of the variety concerned.
21. Exemptions of the rights of a breeder
22. Objection to grant of plant breeder’s rights
23. Grant or refusal of plant breeder's rights
24. Cancellation of plant breeder’srights
25. Duty of a holder of plant breeder’s rights
26. Rights of a holder of plant breeder’s rights
27. Exceptions to plant breeder’s rights
28. Surrender of plant breeder's rights
Part IV – Licensing
30. Compulsory licenses
Part V – Appeals
31. Appeals Committee
32. AssessorsThe Appeals Committee may appoint any person with special expert knowledge to act as an assessor in an advisory capacity in any case where it appears to the Committee that such knowledge is required for the proper determination of the case.
33. Time for appealsAn appeal shall be brought within thirty (30) days after the date of the decision or order of the Registrar in question.
34. Right of audience
35. Notifications by Registrar to the Appeals Committee
36. Review by the High CourtA person who is aggrieved by the decision of the Appeals Committee may apply to the High Court, within thirty (30) days after the date of the decision of the Appeals Committee, for a review.
Part VI – Offences and penalties
37. Falsification of documentsAny person who—
38. Failure to obey order of Appeals Committee or giving false evidenceAny person who—
39. Deceiving or improper influencing of officerAny person who for the purpose of—
40. Unauthorized claim of plant breeder’s rights or use of unauthorized name
41. Offences by officers
42. General penaltyAny person who has been convicted of an offence under this Act, where a penalty has not been specifically provided shall, upon conviction, be liable to a fine not exceeding two million Kwacha (K2,000,000) and to imprisonment for a period not exceeding one year.
Part VII – Financial provisions
43. Plant Breeder’s Rights Fund
44. LevyThe Minister may, in consultation with the Minister responsible for Finance, by order published in the Gazette, levy—
45. Administration of the FundThe Fund shall be administered by the Registrar, subject to this Act, and in accordance with the Public Finance Management Act and the Public Audit Act.[Cap. 37:02; Cap. 37:01]
46. Objectives of the FundThe Fund shall be used for the proper management of plant breeder’s rights activities.
47. Application of the FundThe Fund may be applied for—
48. Holding of the Fund
49. Books and other reports of accounts
50. Financial year
Part VIII – General
51. Foreign applications
52. Exercise of discretion by RegistrarWhere any discretionary or other power is given by this Act the Registrar, he shall not exercise that power adversely to the applicant for or holder of plant breeder’s rights, as the case may be, without giving to that applicant or holder an opportunity of being heard.
53. Rights of patent agents and attorneys
54. Powers of Registrar to make corrections
55. Rectification of Register
56. Evidence of certain entries and documents
57. Inspection and provisioning of certified copies of entries in RegisterThe Register shall at all convenient times be open to inspection by the public on payment of the prescribed fee and a certified copy of any entry in the Register shall be given on payment of the prescribed fee to any person requiring it.
58. Preservation of secrecySave as otherwise provided in this Act, any person who discloses, except—
59. Application of this Act to Government
60. Assignment etc. of plant breeder’s rights
61. Plant breeder’s rights granted in respect of existing varieties
History of this document
31 August 2020
24 August 2018 this version
Published in None number None
20 August 2018
|Plant Breeder's Rights Act, 2018: Commencement||Government Notice 68 of 2020|