Since being introduced in July 2015, the Arusha protocol for the protection of novel plant varieties in Africa has finally entered into force on the 24th of November 2024, after ratification by a fourth member state. The states currently to have ratified the protocol are Cape Verde, Ghana, Rwanda, and São Tomé e Príncipe.
The protocol aims to provide a central harmonised system in Africa for protecting plant variety rights, sitting within the African Regional Intellectual Property Organization (ARIPO). Applications can be filed through ARIPO, examination follows the usual DUS testing, and once granted the rights should have a uniform effect across the designated states, much like a community plant variety right in Europe. Provision is made in the Protocol for the claiming of priority from an application in any country that is a party to an “international agreement for the protection of new plant varieties” (including the UPOV Convention). It is hoped that more of the 22 African ARIPO states will sign up in the future such that the protection offered to users by the protocol will become more extensive.
There has been historic resistance to the protocol given that some feel it would only benefit large multinational breeders, not the local famer, and threatens traditional farmer’s rights to save seed and exchange seed for future harvests which are common practices in Africa. The protocol follows that of UPOV 1991, in that it only contains limited exceptions for farm saved seed, subject to payments to the PVR owner. To attempt to combat this, ARIPO have implanted a provision which states that the PVR will have effect in the designated state, provided that the designated state has not refused the grant of the PVR. Therefore giving a get-out clause for states to refuse the grant of the PVR within 6 months of receiving the application, as long as they have good reason to do so. Perhaps if it were to threaten a key staple crop in that state.
There is some speculation this could hamper the use of the new system which has already proven to be fairly limited in its introduction. Furthermore the Arusha protocol joins a patchwork of different rights that are available in Africa for plant varieties including national rights, the OAPI system, and the SADC protocol, adding to the complexity in the region. However, it is still viewed as a crucial development towards easier access to improved varieties in Africa, with the potential to help food security, environmental issues, and encourage the development of new varieties adapted for this market. Craig Kahn, Head of Patents at South African firm Spoor and Fisher feels the overall benefit is positive: “For multinational breeders, it is an extremely important development for Africa and will encourage investment and job creation in the ARIPO member countries that ratify the Arusha protocol. It is a pity that only four ARIPO member counties have so far ratified the Protocol and, of these four countries, only two have Plant Breeders’ Rights legislation, namely Ghana and Rwanda. However, since the announcement of the Arusha protocol coming into force, we have been contacted by a number of multinational breeder clients interested in filing applications at ARIPO. We expect more ARIPO member countries to ratify the Protocol such that it becomes a cost effective option to protect new varieties of plants in the ARIPO member countries”.
This article was prepared by Partners Punita Shah and Ellie Purnell.