Plant Breeders' Rights Act
The Plant Breeders' Rights Act makes it possible for plant breeders to legally protect new varieties of sexually and asexually reproduced plants for a period of up to 18 years. All plant species, except algae, bacteria, and fungi, are eligible for protection.
The owner of a new variety who receives a plant breeders' rights certificate has exclusive rights over the use of the variety, and will be able to protect the new variety from exploitation by others.
Criteria
A variety will be protected if it demonstrated that the variety is new, distinct, uniform and stable.
New
The sale of the variety prior to filing the application is restricted. For instance, the variety cannot have been sold in Canada prior to submitting an application for protection. For sales outside Canada, the sale cannot have been made four years prior to filing an application, with the exception of vines, trees and rootstocks, which are given a six-year window of permitted sales outside of Canada prior to filing an application.
Distinct
A plant variety must be clearly distinguishable from other varieties that are being cultivated or exploited for commercial purposes in Canada and other varieties described in publications available to the public at the time of filing an application.
Uniform
Any variation in a plant variety should be predictable, capable of being described by the breeder, and commercially acceptable.
Stable
A variety must remain true to its description over repeated reproduction or multiplication.
Rights of the Holder of a Plant Breeders' Right
A holder of a plant breeders' right has the exclusive right to (a) sell, and produce the variety in Canada for the purpose of selling propagating material of the variety; (b) make repeated use of the variety for use in the production of ornamental plants or cut flowers; and (c) conditionally or unconditionally license a third party to do any of the above acts.
A person who undertakes any of the above acts without authorization of the holder will infringe the holder's rights.
The holder' rights are subject to two restrictions: (A) Protected varieties may be used to breed and develop new plant varieties. (B) Farmers may save and use their own seed of protected varieties.
Who Can Apply For Plant Breeders' Rights
Breeders, the breeder's employer, or the legal representative may be the Applicant.
An Applicant must be a citizen of, or a resident, or have a registered office in, Canada or a member country of The International Union for the Protection of New Varieties of Plants (UPOV). A Canadian address to which correspondence may be sent is required on all applications. Residents outside of Canada must appoint an agent resident in Canada to submit an application on their behalf.
Filing an Application
The effective date of an application is when a completed application form including attachments and filing fee have been provided to the Plant Breeders' Rights Office (PBRO). The effective date will be used to determine the priority date of applications when varieties under examination are indistinguishable.
The following information is to be provided to the PBRO:
• Completed application form and fee
• Description of the origin and breeding history of the variety
• Statement of uniformity and stability
• Distinctness statement
• Methods for maintaining the variety
• Sample of propagating material (where applicable)
• Authorization of agent (where applicable)
• Evidence establishing that the Applicant is the legal representative (where applicable)
The following items are optional and must be requested by the Applicant at the time the application is filed:
Protective Direction
A protective direction protects a candidate variety for the time period extending from when the Applicant files an application and the date when plant breeders' rights are granted.
Request for Exemption from Compulsory Licensing
A compulsory licence may be granted to anyone who can demonstrate to the Commissioner that the holder of the right in respect of a particular variety has unreasonably refused to license them. An Applicant may request exemption from compulsory licensing and reasons for the exemption must be made at the time of application.
Priority Claim
An Applicant may claim priority based on an application previously filed in a UPOV member country. The filing date of the foreign application is considered the filing date in Canada. Priority must be claimed within one year from the date when the application was originally filed in the UPOV member country. A certified copy of the priority document translated into either French or English, must be submitted within 3 months after the claim for priority has been filed with the PBRO.
Examination
Examination of the variety is done to ensure that the requirements for distinctness, uniformity and stability are met. For examination, trials must be conducted in Canada to permit pair-wise comparisons between the candidate variety and reference varieties, and a site examination is required. As a general rule, asexually reproduced species require one growing season of trials while seed reproduced and woody species require two growing seasons of trials. It is possible to reduce the duration of the trials conducted in Canada from two years to one year, if foreign tests and trials from Plant Breeders' Rights Offices in UPVO member countries are accepted by the Canadian Office.
Term of the Rights
Plant Breeders' Rights are granted for a term of 18 years from the date of issue of the certificate. A holder may surrender the rights on the variety at any time during the term.
Annual Renewal Fee
A fee must be paid annually on the anniversary of the date the rights were granted in order for the rights to remain in force.
Maintaining Propagating Material
Throughout the term of protection, the holder of a plant breeders' right must be able to supply the Commissioner with a sample of propagating material of their variety. Samples of propagating material may be requested by the Commissioner at any time and the Commissioner may ask to inspect the facilities used for maintaining the variety.
Revocation of Rights
The Commissioner may revoke a holder's rights in the following circumstances:
failure to pay the annual fee;
unable to supply propagating material of the variety;
unable to prove that the variety was being maintained;
sale of propagating material of the variety while a protective direction is in force;
failure to meet the obligations imposed by a compulsory licence.
A holder will have an opportunity to make representations before the Commissioner revokes rights.
Annulment of Rights
A holder's rights may be annulled when there is sufficient evidence that the variety was not distinct when the rights were granted, or the variety was sold prior to the date of the application in contravention of the Plant Breeders' Rights Act (Act) or Regulations. A holder will have an opportunity to make representations before a right is annulled.
Assignment of Plant Breeders' Rights
The holders of rights may assign their rights to another person. An assignment must be registered by the assignee with the PBRO within 30 days after the assignment occurred.
Compulsory Licenses
A compulsory licence may be granted where it can be demonstrated that the holder of the right has unreasonably refused to license the variety.
Plant Varieties Journal
A Plant Varieties Journal is published quarterly which contains information relating to plant breeders' rights. Interested persons may object to the particulars of the published applications/descriptions if they feel the requirements of the Act have not been met.
Enforcement of Rights
The holder of a plant breeder's right is responsible for bringing legal action against any infringements of the holder's rights.
Proposed Changes to the Plant Breeders' Rights Legislation
In 1992, Canada signed the 1991 UPOV Convention. In order to enable ratification, amendments are required to the Plant Breeders' Rights Legislation to bring it into conformity with the 1991 Convention. The proposed amendments include allowing a one-year period of sale of the variety in Canada prior to filing the application, reducing the period of time from four years to two years in which to furnish additional documents and material for which priority is claimed, providing automatic provisional protection for the variety prior to grant, broadening the scope of the holder's rights, extending the duration of the holder's rights, and providing additional circumstances where rights can be annulled or revoked. More details of the proposed amendments can be found on the Plant Breeders' Rights Office website http://www.inspection.gc.ca/english/plaveg/pbrpov/ammende.shtml
