Plant Breeders’ Rights Act (S.C. 1990, c. 20)

Marginal note:Term of plant breeder’s rights

• 6 (1) The term of the grant of plant breeder’s rights, subject to earlier termination under this Act, shall be a period of 25 years in the case of a tree, a vine or any category specified by the regulations and 20 years in any other case. The period begins on the day on which the certificate of plant breeder’s rights is issued.

• Marginal note:Payment of annual fee

  (2) A holder of plant breeder’s rights shall, during the term of the grant of those rights, pay to the Commissioner, within the prescribed time, the prescribed annual fee.

Applications for Plant Breeder’s Rights

Marginal note:Application for plant breeder’s rights

• 7 (1) A breeder or the breeder’s legal representative may make an application to the Commissioner for the grant of plant breeder’s rights respecting a plant variety if, in the case of an individual, the breeder or legal representative is a citizen of, or is resident in, Canada, a country of the Union or an agreement country or, in the case of a person that is not an individual, the breeder or legal representative has an establishment in Canada, a country of the Union or an agreement country.

• Marginal note:If two or more breeders

  (2) If a plant variety is bred by two or more breeders otherwise than independently of each other, the persons entitled to make an application for the grant of plant breeder’s rights respecting that variety may make an application jointly and, if any of those persons refuses to do so or information regarding their whereabouts cannot be obtained through diligent inquiry, the remainder of those persons may make an application for that grant.

8 [Repealed, 2015, c. 2, s. 6]

Marginal note:How application to be made

• 9 (1) An application for the grant of plant breeder’s rights must

  • (a) include the prescribed information and be made in the prescribed manner;

  • (b) be accompanied by the prescribed fee;

  • (c) be supported by the prescribed documents and any other prescribed material; and

  • (d) in the case where the applicant wishes to request that those rights be exempted from compulsory licensing under subsection 32(1), include the request and his or her reasons for it.

• Marginal note:Agent required for non-resident applicant

  (2) An applicant that, in the case of an individual, is not resident in Canada and, in the case of a person that is not an individual, does not have an establishment in Canada shall submit the application through an agent resident in Canada.

Marginal note:Filing date of application

• 10 (1) Subject to subsection 11(1), the filing date of an application for the grant of plant breeder’s rights is the date on which the Commissioner has received, in respect of the application, all of the information, fees, documents and other materials that are required by subsection 9(1).

• Marginal note:Notice of filing date

  (2) The Commissioner shall send to the applicant a notice specifying the filing date.

Marginal note:Priority when breeders breed independently

10.1 In the case of two or more applications respecting a plant variety whose breeders bred it independently of each other, priority shall be given to the application with the earliest filing date. If the filing dates of the applications are the same, priority shall be given to the application pertaining to the breeder that was first in a position to apply for the plant breeder’s rights respecting the variety or that would have been first in the position to do so if the provisions under this Act for so doing had always been in force.

Marginal note:Priority when preceding application in country of Union or agreement country

• 11 (1) If an application made under section 7 is preceded by another application made in a country of the Union or an agreement country for protection in respect of the same plant variety and the same breeder, the filing date of the application made under section 7 is deemed to be the date on which the preceding application was made in that country of the Union or agreement country and, consequently, the applicant is entitled to priority in Canada despite any intervening use, publication or application respecting the variety if

  • (a) the application is made in the prescribed form within 12 months after the date on which the preceding application was made in that country of the Union or agreement country; and

  • (b) the application is accompanied by a claim respecting the priority and by the prescribed fee.

• Marginal note:Confirmation of claim to priority

  (2) A claim respecting priority based on a preceding application made in a country of the Union or an agreement country shall not be allowed unless, within three months after the date that would be the filing date of the application if there were no claim respecting priority, the claim is confirmed by filing with the Commissioner a copy, certified as correct by the appropriate authority in that country of the Union or agreement country and accompanied by an English or French translation of the certified copy, if made in any other language, of each document that constituted the preceding application.

• Marginal note:Supporting evidence

  (3) An applicant that is given priority shall provide, within a period of three years after the date on which the preceding application was made in the country of the Union or agreement country, evidence that the applicant has begun the tests and trials with the plant variety referred to in subsection 23(2).

• Marginal note:Two or more preceding applications

  (4) If an application made under section 7 is preceded by two or more applications made in different countries of the Union or agreement countries for protection in respect of the same plant variety and the same breeder, only the first of those preceding applications is to be taken into account for the purposes of subsection (1).

Marginal note:Priority conditional on residence, etc.

• 12 (1) No claim referred to in paragraph 11(1)(b) shall be based on any preceding application unless it was made by a person who, at the time of the application, was entitled to make an application under subsection 7(1).

• Marginal note:When previous application disregarded

  (2) For the purposes of subsection 11(1), no account shall be taken of an application that was made in a country outside Canada at a time when the plant variety to which the application relates did not belong to a prescribed category.

Marginal note:Priority established over previous grant

13 Where priority for an application is established pursuant to this Act, the Commissioner shall refuse any application against which the priority is established or, if the priority against it is established after granting on it any plant breeder’s rights, the Commissioner shall annul the grant and section 36 and paragraph 70(3)(b) apply, with such modifications as the circumstances require, in respect of the annulment.

Denominations

Marginal note:Designation of denominations

• 14 (1) A plant variety in respect of which an application for the grant of plant breeder’s rights is made shall be designated by means of a denomination proposed by the applicant and approved by the Commissioner.

• Marginal note:Rejection of proposed denomination

  (2) Where a denomination is proposed pursuant to subsection (1), the Commissioner may, during the pendency of the application referred to in that subsection, reject the proposed denomination, if considered unsuitable for any reasonable cause by the Commissioner, and direct the applicant to submit a suitable denomination instead.

• Marginal note:Suitable denomination

  (3) A denomination, in order to be suitable pursuant to this section, must conform to the prescribed requirements and must not be such as to be likely to mislead or to cause confusion concerning the characteristics, value or identity of the variety in question or the identity of its breeder.

• Marginal note:International uniformity of denomination

  (4) A denomination that the Commissioner approves for any plant variety in respect of which protection has been granted by, or an application for protection has been submitted to, the appropriate authority in a country of the Union or an agreement country must, subject to subsections (2), (3) and (5), be the same as the denomination with reference to which that protection has been granted or that application submitted.

• Marginal note:Change of denomination

  (5) A denomination approved by the Commissioner pursuant to this section may be changed with the Commissioner’s approval in the prescribed circumstances and manner.

• Marginal note:Denomination must be recognizable

  (6) Where a trademark, trade name or other similar indication is used in association with a denomination approved by the Commissioner pursuant to this section, the denomination must be easily recognizable.

Marginal note:Approved denomination to be used exclusively

15 After the grant of plant breeder’s rights respecting any plant variety, and even after the expiry of the term of the grant of those rights, every person who is designating the variety for the purposes of the sale of propagating material of the variety shall use the denomination approved by the Commissioner.

Marginal note:Prior rights not prejudiced

16 Nothing in section 14 or 15 authorizes or requires any person to use, or the Commissioner to approve any person’s use of, a denomination to the prejudice of any prior right of another person to the use of any designation.

Marginal note:Direction to change denomination

16.1 If, after the grant of plant breeder’s rights respecting any plant variety, the Commissioner has reasonable grounds to believe that the use of the denomination is unsuitable or that the prior rights of another person are prejudiced by its use, the Commissioner may direct the holder to change the denomination, subject to the Commissioner’s approval of the new denomination.

Summary Disposition of Applications

Marginal note:Rejection of application

• 17 (1) The Commissioner may reject an application for the grant of plant breeder’s rights if the application is not consistent with any provision of this Act or the regulations, including if the plant variety in respect of which the application is made is not a new variety or if the applicant is not entitled to apply under section 7.

• Marginal note:Opportunity for representations before application rejected

  (2) The Commissioner shall not reject the application of a person for the grant of plant breeder’s rights without first giving the person notice of the objections to it and of the grounds for those objections as well as a reasonable opportunity to make representations with respect thereto.

Marginal note:Amendment of application

18 An applicant may, within the period prescribed for so doing, or with leave given by the Commissioner at the applicant’s request after the expiry of that period, add to or alter the denomination proposed by that applicant under section 14 or the description of the plant variety for the purposes of the application.

Provisional Protection

Marginal note:Applicant’s rights

• 19 (1) Subject to subsection (2), an applicant for the grant of plant breeder’s rights in respect of a plant variety has, as of the filing date of the application, the same rights in respect of the variety that he or she would have under sections 5 to 5.2 if plant breeder’s rights were to be granted.

• Marginal note:When rights in effect

  (2) If the applicant is granted plant breeder’s rights, the applicant is, in respect of the period beginning on the filing date and ending on the date on which the plant breeder’s rights are granted, entitled to equitable remuneration from any person who, having been notified in writing by the applicant that the application for those rights has been filed under this Act, carried out acts that require the authorization of the applicant.

Marginal note:Rights extinguished

• 20 (1) The rights granted under section 19 cease if the application is withdrawn by the applicant, is rejected or refused or is deemed to have been abandoned under section 26.

• Marginal note:Reinstatement of application

  (2) Despite subsection (1), if an application that is deemed to have been abandoned is subsequently reinstated, the rights granted under section 19 are deemed never to have ceased.

Marginal note:Filing date — claim respecting priority

21 For the purposes of sections 19 and 20, with respect to an applicant that has made a claim respecting priority under section 11, the filing date is the date that would be the filing date of the application if there were no claim respecting priority.

Consideration and Disposition of Applications

Marginal note:Making objection to application

• 22 (1) A person who considers that an application in respect of which particulars have been published under section 70 ought to be refused on any ground that constitutes a basis for rejection under section 17 or that a request in the application for an exemption from compulsory licensing ought to be refused, may, on payment of the prescribed fee, file with the Commissioner, within the prescribed period beginning on the date of publication, an objection specifying that person’s reasons. The prescribed fees are not required in the case of an objection made for the purpose of this subsection under the authority of the Minister of Industry after notice under subsection 70(2).

• Marginal note:Copy of objection to be sent to applicant

  (2) As soon as practicable after the filing of an objection pursuant to subsection (1), the Commissioner shall send a copy of the objection to the person in respect of whose application the objection is filed, unless the Commissioner rejects the objection in accordance with subsection (3).

• Marginal note:Rejection of objection

  (3) Where it appears to the Commissioner that there is good reason for rejecting an objection referred to in subsection (2), the Commissioner shall give the person making the objection a reasonable opportunity to show cause why the objection should not be rejected and, if the person shows the Commissioner no such cause, the Commissioner shall reject the objection and give notice accordingly to the person.

• Marginal note:Representations by objector and applicant

  (4) If the objection is not rejected in accordance with subsection (3), the Commissioner shall give the person making the objection and the person in respect of whose application the objection is filed a reasonable opportunity to make representations with respect to the objection and shall take those representations into account before making the decision to refuse the application or to grant plant breeder’s rights with or without an exemption from compulsory licensing.

• Marginal note:Upholding objection

  (5) Where the Commissioner upholds an objection made under this section, the Commissioner shall refuse the application or request therein for exemption accordingly.