PLANT VARIETY PROTECTION.

Kenya is a member of the International Union for Protection of New Plant Varieties (UPOV), 1978 convention. Plant Breeders' Rights (PBRs) are rights granted by the State to protect the proprietary rights of plant breeders with regard to breeding and discovery of new plant varieties.

LEGISLATION The Plant Breeders' Rights Legislation became operational in 1975 under the Seeds and Plant Varieties Act (Cap 326) of 1972. The Act was revised in 1991 to conform with developments in the liberalized seed industry. The implementing regulations, the Plant Breeders Rights Regulations were gazetted on 25 November 1994. Consequently, the Plant Breeders Rights Office, under the Kenya Plant Health Inspectorate Service, was established to implement the Act and the regulations.

WHAT ARE PLANT BREEDERS RIGHTS?

Plant Breeders' Rights (PBRs) are rights granted by the State to protect the proprietary rights of plant breeders with regard to breeding and discovery of new plant varieties. A grant of Plant Breeders' Rights for a new plant variety gives the holder the exclusive right to produce for sale and to sell propagating material of the variety. In the case of vegetatively propagated fruit and ornamental varieties, Plant Breeders' Rights give the holder the additional exclusive right to propagate the protected variety for commercial production of fruit, flowers or other products of the variety.

The holder of a grant of Plant Breeders' Rights may license others to produce for sale and to sell propagating material of the protected variety. Holders of rights commonly collect royalties from commercialization of their protected varieties.

Just like any other holders of other types of proprietary rights the holders of grants may take civil action against persons infringing their rights. For example, the holder would be entitled to seek an injunction against, or if appropriate, claim damages from, another person who without permission from the holder deliberately sells seed or plant of the protected variety. Action may also be taken by the holder of rights against someone who sells propagating material of another variety of the same genus or species using the denomination approved for the protected variety.

A protected variety with its grant of rights, like other personal property, may be sold, mortgaged or assigned to another person. While the protection given to a breeder by a grant of Plant Breeders Rights is somewhat similar to that given to an inventor by a patent grant, there are significant differences between these two forms of intellectual property rights. The term "patent" should not be used when referring to a variety protected by the Seeds and Plant Varieties Act.