(i) propagating material ofthe relevant new variety; or
(ii) harvested material, including plants, which was obtained through the unauthorised lise of
propagating material of the relevant variety.
(1 A) (2)The Minister may by notice in the Gazette and as from a date mentioned therein extend the
effect ofthe protection given by a plant breeder's right also to the sale of any product, normally 110t
used as propagating material, ofthe variety ill respect of which that plant breeder's right was
granted contemplated in subsection (1) to products made directlyfrom harvested material
contemplated in subsection (l)(ii).
(3) The provisions ofsubsections (1) and (2) shall not apply if the breeder has had reasonable
opportunity to exercise his or her right in respect ofthe propagating material ofthe protected
variety.
(4)(a) The provisions ofsubsections (J), (2) and (3) shall also apply to varieties(i) which are essentially derivedfrom the protected variety, where the protected variety is not itself
an essentially derived variety;
(ii) which are not distinguishable from the protected variety as contemplated in section 2(2) (b); or
(iii) the production ofwhich requires the repeated use ofthe protected variety.
(b) For the purposes ofparagraph (a)(z) a variety shall be deemed to be essentially derivedfrom
another variety if•
(i) it is predominantly derivedfrom that other variety, orfrom a variety that is itselfpredominantly
derivedfrom that other variety, while retaining the essential characteristics of that other variety; and
(ii) it is clearly distinguishable from that other variety: and
(iii) except for the differences which result from the process ofderivation, it conforms to that other
variety in respect ofthe essential characteristics.
(2) (5) Notwithstanding the provisions of subsection (1), the holder of a plant breeder's right shall
during the period which the Minister may prescribe as a period for the exercise of sole rights in terms
ofsection 25(4) in respect of the kind of plant to which such new a variety belongs, have the sale
right to undertake with regard to the relevant new variety any activity referred to in that subsection
(1) or to have such activity undertaken by any other person.
(3) (6) It shall not be an infringement of a plant breeder's right if Notwithstanding the provisions of
section 23..1 (a), a person who procured any propagating material of a new variety in a legitimate
manner which does not infringe an)' right of the holder of the relevant plant breeder's right shall
not infringe the plan! breeder's right in respect of/he variety if he 01' she-
(a) resells it that propagating material:
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