The Plant Breeders’ Rights Act – Fundamentals

Plant breeders’ rights are an internationally sanctioned form of intellectual property. The UPOV Convention agreement¹ was designed to overcome two perceived hurdles to the granting of patents for plant varieties. First, traditional plant-breeding methods (e.g., absent the application recombinant DNA technologies) were thought to lack an inventive step. Second, traditional plant breeders could not satisfy disclosure requirements of patent statutes, which required inventors to describe their inventions sufficiently to enable a person skilled in the art of the invention to reproduce it. In addition to specifying certain "plant breeders’ rights," the UPOV Convention agreement requires signatory nations to provide: (i) national treatment (foreigners being accorded the same rights under relevant domestic legislation as nationals); (ii) right of foreign priority (recognition of foreign priority based on the filing date of a first application within a member nation); and (iii) independent jurisdiction (a scheme for acquisition of rights in a signatory country by application in that country). Canada signed the UPOV Convention agreement in 1978, but did not accede to its terms until 1991, when a federal statute, the Plant Breeders’ Rights Act, came into force.

The Act is intended to encourage plant breeding in Canada, provide Canadian producers with improved access to foreign varieties, and facilitate protection of Canadian-bred varieties in other countries. It provides a scheme for registering new varieties of stipulated categories of plants, and grants to registrants, for a term of 18 years from the date of registration, exclusive rights to:

• sell and produce in Canada for the purpose of selling, propagating material (e.g., seed, whole plants, and vegetative propagating material) as such (i.e., for the purpose of propagating);
• repeatedly use propagating material of the variety to commercially produce another variety, if such repeated use is required for that purpose;
• where the new variety is a plant variety to which ornamental plants or parts thereof normally marketed for purposes other than propagation belong, use any such plants or part commercially as propagating material for the production of ornamental plants or cut flowers; and
• authorize such acts conditionally or unconditionally.

Under the Act, a new variety eligible for registration must been be homogeneous and must stably express, during repeated reproduction or propagation, at least one identifiable characteristic that clearly distinguishes it from all other varieties known at the date of application. Furthermore, to be eligible for registration, neither the breeder nor his, her, or its legal representative must have sold or concurred in the sale of the new variety before the date of the application.

Notably and deliberately (pursuant to the UPOV Convention), the above-stated rights of registrants contain two important limitations that distinguish plant breeders’ rights from the rights accorded a patent holder. These are commonly called the "farmers’ exception" and the "breeders’ exception." By limiting the sole right of a registrant to selling and producing in Canada propagating material for the purpose of propagating, farmers are thereby not restrained from producing in Canada propagating material for other purposes (e.g., feeding, processing, or reseeding). By limiting the sole right of a registrant to repeatedly using propagating material to produce another variety, if such repeated use is required for that purpose, other plant breeders are not restrained from incorporating traits of the protected variety in new varieties through single crosses.

The scheme is administered by the Plant Breeders’ Rights Office under the direction of the Commissioner of that Office. The Plant Breeders’ Rights Office forms part of the Canadian Food Inspection Agency.

¹ International Convention for the Protection of New Varieties of Plants (UPOV), December 2, 1961, as rev. at Geneva, November 10, 1972, October 23, 1978, and March 19, 1991.

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