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Plant Breeders' Rights Act, 2018 (Act No. 12 of 2018)

Chapter 9 : Licences

36. Hearing of application for and issue of compulsory licence

 

(1) The Registrar must determine the date on and the time and place at which an application contemplated in section 35(1) will be heard and 30 days prior to the hearing must inform the person who made the application and the holder of the plant breeder’s right in question in writing of such date, time and place.

 

(2)

(a) The Registrar may appoint one or more persons who have experience in the administration of justice or skill in any matter which may be considered at the hearing, to assist and advise him or her with regard to the hearing of the application for a compulsory license.
(b) A person appointed in terms of paragraph (a) must receive such remuneration as may be prescribed.

 

(3) The Registrar may, for the purposes of the hearing of an application for a compulsory license—
(a) summon any person who may give material information concerning the subject of the hearing or who has in his or her possession or custody or under his or her control any document that has any bearing upon the subject of the hearing, to appear before the Registrar at a time and place specified in the summons, to be interrogated or to produce that document, and the Registrar may retain for examination any document so produced;
(b) administer an oath to or accept an affirmation from any person called as a witness at the hearing; and
(c) call any person present at the hearing as a witness and interrogate him or her and require him or her to produce any document in his or her possession or custody or under his or her control.

 

(4) The procedure at the hearing of an application for compulsory license must be prescribed.

 

(5) The person who applied for a compulsory license and the holder of the plant breeder’s right in question may, if he or she appears before the Registrar at the hearing, be represented.

 

(6) The Registrar must advise the applicant for a compulsory license and the holder of the plant breeder’s right in question in writing of his or her decision and of the grounds on which it is based within 21 days after the hearing of the application for a compulsory license.

 

(7)

(a) The Registrar must issue a compulsory license if it has been established that—
(i) the granting of a compulsory licence is in the public interest;
(ii) the holder of a plant breeder’s right is unreasonably refusing a license referred to in section 34 or is imposing unreasonable conditions for the issue of such a license; and
(iii) the reasonable requirements of the public with regard to the variety in question are not being satisfied or will not be satisfied as a result of such refusal or the imposition of such conditions.
(b) A compulsory license contemplated in paragraph (a)—
(i) may include such condition as the Registrar may determine; and
(ii) may at any time be reviewed by the Registrar by reason of representations made to him or her for the amendment or withdrawal of that compulsory licence.

 

(8) In setting the terms of a compulsory license the Registrar must endeavour to ensure that propagating material of the variety in question is available to the public at reasonable prices consistent with the holder of a plant breeder’s right deriving a reasonable advantage therefrom.

 

(9)

(a) A compulsory license may be granted to any person whether or not the holder of the relevant plant breeder’s right has granted a license in terms of section 34 to any other person.
(b) The issue of a compulsory license does not prevent the holder of the plant breeder’s right from granting additional licenses in terms of section 34.

 

(10) In the event that a compulsory licence is issued in accordance with subsection (7), the Registrar must ensure the payment of equitable compensation to the holder of the plant breeder’s right concerned.