Protecting Plant Varieties in Canada

susancSusan Chao, June 2011

Protection for new plant varieties has been available for just over twenty years in Canada.  As new technologies are sought for increasing and improving crop production, Plant Breeders’ Rights help to encourage such innovation by rewarding plant breeders with exclusive rights to sell, and to produce for sale, the reproductive material of their new plant variety. 

Plant Breeders’ Regime in Canada - Differences
Canada is a member country of the International Union for the Protection of New Varieties of Plants (UPOV).  Plant breeders and applicants should be aware, however, that Canadian laws do not currently follow the latest version of the UPOV Convention and therefore there are some differences in the protection afforded to plant varieties in Canada. 

First, there is no grace period for disclosure of the reproductive, or propagating, material of plant varieties.  To obtain a grant of a Plant Breeders’ Right in Canada, the propagating material of a new plant variety must not have been previously sold in Canada before filing the application with the Plant Breeders’ Rights Office.  The definition of “sell” under the Plant Breeders’ Rights Act is rather broad and includes:

“agree to sell, or offer, advertise, keep, expose, transmit, send, convey, or deliver for sale, or agree to exchange or to dispose of to any person in any manner for a consideration.” 

In addition, the Act defines “advertise”, in relation to a plant variety, even more broadly to include bringing to the notice of the public any communication with the intention of promoting the sale of the propagating material of the plant variety. 

If the plant variety was sold outside of Canada, then there is a six- year grace period for woody plants and their rootstocks, while other varieties have a four-year grace period before filing.

Secondly, the Plant Breeders’ Right lasts for eighteen years from grant.

Furthermore, the protection afforded in Canada does not extend to conditioning (cleaning and seed treating) and stocking (saving, storing or possessing) the propagating material. 

 

Eligibility for Protection and Filing Requirements

In order to be eligible for protection in Canada, the new plant variety must be distinct, uniform and stable.  A variety is distinct if it has one or more characteristics that are measurably different from all other varieties which are known to exist within common knowledge at the time of filing the application.  A variety is uniform when the relevant characteristics are homogeneous, allowing for variation that is predictable and commercially acceptable.  Finally, a variety is stable when it is true to its description over successive generations.

The plant breeder, its employer, or a legal representative of same can apply for a Plant Breeders’ Right, provided they are citizens or residents of a member country of the UPOV.  Foreign applicants filing into Canada will need to appoint a Canadian agent.  In either case, an assignment and/or an authorization form must accompany the application.

Other requirements for the application include a description of the origin and breeding history of the plant variety, the manner in which and the location of where the propagating material will be maintained, a distinctness statement and a statement regarding the uniformity and stability of the variety.  The plant variety must be associated with a proposed name, or denomination, as chosen by the applicant and reviewed by the Examiner.  Apart from vegetatively propagated crops, samples of the propagating material are required.  Documents supporting the distinctness of the variety, such as photographs and a detailed description of the characteristics, are needed.  The results of comparative tests and trials to demonstrate that the plant variety is a new variety are also required.

 

Procedural Considerations to Obtain Protection   

The examination process involves a formal review for compliance with the Plant Breeders’ Rights Act and Regulations, and a site examination of trial results comparing the variety with reference varieties.  Trials must be done in Canada and scheduling for the site examination begins every May 1 for the tests taking place during the summer of that year.  It may be possible to have this testing completed through the purchase of foreign tests and trials from Plant Breeders’ Rights Offices in UPOV member countries if accepted by the Canadian Office.  The description of the variety is generated during the examination phase of the process from the data collected from the trials in Canada.

Publication of the description of the variety in the Plant Varieties Journal allows for third parties to oppose.  If there is no opposition, then a Certificate of Registration is issued with the denomination as approved by the Commissioner.  Maintenance fees are due annually following the grant of the Plant Breeders’ Right.

 

Consider Plant Breeders’ Rights

Although there may be differences in the extent of protection in Canada under the Plant Breeders’ Rights regime, with Canada’s agricultural tradition, Plant Breeders’ Rights should not be dismissed as an option to provide the benefits of access to foreign varieties and the development of Canadian innovation. 

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Jonathan Roch

JONATHAN ROCH

Associate


Jonathan assists clients with their intellectual property rights including patents, trademarks, copyright, industrial designs and trade secrets.
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