1. PLANT VARIETY PROTECTION IN KENYA ( Historical perspective, experiences and challenges) Presented at: IP WORKSHOP AT UoN ON 26 th Feb 2016 Presentation by: Jared Onsando Plant Examiner –Kenya Plant Health Inspectorate Service (KEPHIS) ( website: www.kephis.org)

2. Historical Perspective Plant variety protection, “plant breeder’s right” is a form of intellectual property right granted to the breeder of a new plant variety, by the State in relation to certain acts concerning the exploitation of the protected variety which require the prior authorization from the breeder

3. Historical Perspective The Need For New Improved Varieties World population continues to grow: Agricultural productivity needs to be increased - arable land and other resources are scarce Better resistance to pests and diseases - higher yields, less inputs More efficient use of inputs Improved quality - less waste, higher value Economic development

4. Historical Perspective The Need For Variety Protection Plant breeding is long and expensive BUT Plant varieties can be easily and quickly reproduced è Breeders need protection to recover investment

5. Historical Perspective Purpose of Plant Variety Protection Rewarding those who have been successful in innovating new varieties.

6. Historical Perspective Kenya is a WTO member Article 27.3(b) of the Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement requires member countries to provide for protection of new plant varieties either by:- patents or by an effective Sui generis system or by combination thereof This implies that members provide for protection of new varieties of plants with some form of intellectual property rights (IPR), and which must be effective.

7. Historical Perspective The TRIPS Agreement, however, fails to define the composition of an effective Sui generis system Dhar (2002) outlined the following alternative interpretations of an effective Sui generis system of plant variety protection (PVP) A system of PVP that allows for an effective action against infringement A legal framework that can provide protection to the largest range of new varieties, including varieties developed by formal plant breeders as well as those developed by traditional farmers

8. Historical Perspective UPOV framework which is considered adequate being the only internationally recognized Sui generis system for the protection of new varieties of plants The national protection in Kenya is provided under the Seeds and Plant Varieties Act (1972), which became operational in 1975, was revised in 1991 and 2012 Official regulations to guide the implementation of PVP service were put in place in 1994

9. The plant variety protection schemes were published in 1997 The office to administer the PVP was established in 1997 and has functioned under KEPHIS since 1998 Kenya acceded to UPOV under the 1978 Convention in 13 th May 1999 Historical Perspective

10. 1991 Vs 1978 UPOV Convention 1. Clarity in definition of the one entitled to protection “breeder” and the subject matter of protection “variety” 2. Minimum genera and species to be protected 1978 Act: 5 on joining upov 24 thereafter within 8 years 1991 Act 15 on joining upov and all thereafter. More plant genera and species, more germplasm hence more improved crop varieties

11. Provisional protection 1978 Act: No compensation for infringements or damage done before granting of titles 1991 Act: offer compensation for any infringement done before the granting of the title 1991 Vs 1978 UPOV Convention

12. 4. Minimum duration of protection 1978 Act: 18 years trees and vine, 15 years other species 1991 Act: 25 years trees and vines, 20 years other species Breeders able to recoup their investment for a longer period. 1991 Vs 1978 UPOV Convention

13. 5. Breeders’ Rights 1978 Act: only propagation material covered 1991 Act: Breeders’ Rights strengthened It covers propagation material, harvested material and products made directly from harvested materials 1991 Vs 1978 UPOV Convention

14. 6. Varieties covered 1978 Act: protected variety itself 1991 Act: protected variety, not clearly distinguishable from the protected variety Varieties whose production requires the repeated use of the protected variety Essentially derived varieties – promote research and development in modern biotechnology 1991 Vs 1978 UPOV Convention

15. 7. Farmers privilege 1978 Act: allows farmers to save, exchange and commercialize propagation materials of a protected variety 1991 Act: optional for contracting party (country) to restrict breeders’ rights in order to permit farmers to save and use within their holding propagation materials of a protected variety but with some conditions:- Use on their own holdings Obtained from their own holding Subject to reasonable limits Safeguarding the legitimate interests of the breeder 1991 Vs 1978 UPOV Convention

16. PBR In Kenya A revised legislation, which recognizes the 1991 Act of the UPOV convention was acceded to by the president Kenya grants PBRs for all plant genera and species, other than algae and bacteria The Kenyan PBR Act enshrine the principle of national treatment Allows all nationals of other state members of UPOV to be treated as Kenyan nationals as far as PVP is concerned.

17. The PBR legislation has provision of interim protection. This allows an applicant to request for Protective Direction (interim protection) when applying for PVP. Such an applicant enjoys similar rights as if the Grant has been granted. PBR In Kenya

18. Experiences 1. Increase in the number of breeding entities CROP1990-961997-2010 maize 924 Dry Beans 512 French Beans 14 Macadamia 12 Tea 25 Sweet Potato 36 Sugar cane 11 Cassava 35 Irish Potato 13 Pyrethrum 12 Sunflower 25

19. Experiences CROP1990-961997-2010 Cotton14 Millets27 Sorghum310 Barley12 Rice16 Wheat25 Cow Peas25 vegetables05 Ornamentals0several

20. Experiences Initially most breeding work was done by National Agricultural Research Institute With advent of PVP and liberation of the seed industry in the country several new breeding entrants have come on board namely:- University scientists :- Lines previously developed for purpose of academic research have been improved to varieties for protection and commercialization

21. foreign seed companies:- breed outside Kenya but submit their varieties in the national testing, protection and release system Domestic companies:- have access to new varieties developed by international research institutes the latter not permitted to officially own and protect these varieties in Kenya Breeding entrants in horticultural industry:- traditionally carried outside Kenya but of late substantial increase in the level of domestic breeding especially vegetables and ornamentals Experiences

22. 2. Number of Released Varieties yearmaizeBush beans Climbing beans Swee t potat o cassav a Pearl millet Ricesorghu m kalesChick pea Groun d nuts Soy beans wheat irish potato 1998 -1-33--3----32 1999 2--1--------3- 2000 8----2-3------ 2001 13--4-1------3- 2002 10------------- 2003 21------------- 2004 22------------- 2005 4------------- 2006 11------------- 2007 7-----------2- 2008 42113-6-44----4- 2009 27--43-712432-4

23. Experiences The number of varieties introduced by breeders within the period subsequent to the establishment of PVP is significantly higher than in the preceding period, especially for maize Between 1990 and 1996, only 39 new varieties were released, as compared to 167 between year 1997 and 2009 In the country, DUS test is a mandatory requirement for any variety to be released. These tests are conducted using UPOV and National test guidelines.

24. The breeder generates the breeders descriptor the latter is confirmed to official descriptor by the seeds and plant varieties testing authority. The increase in introduction of crop varieties in the country is as a result of enhanced variety description the latter made possible by:- Readily available UPOV test guidelines for most of the Agricultural crops Trained personals by UPOV on development of national test guidelines Collaboration and co operation between the breeders and the testing authority on variety description. Experiences

25. 3. Improvement of Released Varieties Previously varieties were assessed for release on the basis of their yield performance. However, in the recent past varieties are released on attributes other than yield. For instance quality protein in maize, baking quality in wheat, disease and pest tolerant in French beans brewing quality in barley

26. These requirements have demanded improvement on the already released and or protected varieties The provision of the breeder’s exemption has allowed the Kenyan breeders to develop improved new varieties using the released or protected varieties as sources of variation Experiences

27. 4. Increased breeding activities, commercialization and Collaboration An increased level of activity has been observed in the seed market amongst domestic breeders and foreign breeders At the same time, an increased collaboration of domestic breeders with foreign breeders and international institutions has been noted This involves capacity building, funding, germplasm exchange and commercialization of foreign varieties in Kenya.

28. Domestic breeders have also extended partnerships with farmers for on-farm testing of newly bred varieties Domestic entities receive and market new materials from foreign breeders on their behalf or under license Alternatively these breeders have incorporated their companies domestically to market their new varieties. Experiences

29. 5. Enhanced Access to Foreign Bred Materials Most of the applications for PVP in Kenya are from foreign breeders (62.5%) This demonstrates increased availability of foreign germplasm, which can be used further in developing improved varieties in accordance with the breeder’s exemption in the UPOV Convention

30. 6. Generation of Foreign Exchange and Employment More than half (58%) of the varieties for which PVP has been applied in Kenya are ornamentals Given the conducive weather conditions for flower and ornamental plants production, Kenya has continued to attract a number of breeders to grow their new varieties for the European market Kenya remains the largest single source of floriculture imports into the European Union To sustain the production for the market, the floriculture industry employs a large labor force thus improving livelihoods Experiences

32. 7. Increased level of awareness of PVP service Has been achieved through elaborate outreach programme to sensitize stakeholders the objectives and processes of PVP Tangible impact:- development of institutional IP policy by most of institutions doing research in plant sciences. National Seed policy where the plight of breeders on royalties has been addressed.

33. Challenges 1. Facilities to test ornamental varieties (which form the bulk of PVP applications) Most of the PVP titles for ornamentals have been based on results taken over from other UPOV member states or authorities 2. Domestication of the UPOV test Guidelines A lot of resources (majorly financial) is needed to evaluate local varieties the latter to serve as reference and example varieties in our DUS trials.

34. END ASANTE SANA