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

Marginal note:Rights respecting certain other varieties

• 5.2 (1) Subject to the other provisions of this Act and the regulations, the holder of the plant breeder’s rights respecting a plant variety has the exclusive right to do any act described in any of paragraphs 5(1)(a) to (h) in respect of

  • (a) any other plant variety that is essentially derived from the plant variety if the plant variety is not itself essentially derived from another plant variety;

  • (b) any other plant variety that is not clearly distinguishable from the plant variety; and

  • (c) any other plant variety whose production requires the repeated use of the plant variety.

• Marginal note:Meaning of essentially derived

  (2) For the purpose of paragraph (1)(a), a plant variety is essentially derived from another plant variety (in this subsection referred to as the “initial variety”) if

  • (a) it is predominantly derived from the initial variety or from a plant variety that is itself predominantly derived from the initial variety and it retains the essential characteristics that result from the genotype or combination of genotypes of the initial variety;

  • (b) it is clearly distinguishable from the initial variety; and

  • (c) it conforms to the initial variety in the expression of the essential characteristics that result from the genotype or combination of genotypes of the initial variety, except for the differences that result from its derivation from the initial variety.

Marginal note:Non-application of rights

• 5.3 (1) The rights referred to in sections 5 to 5.2 do not apply to any act done

  • (a) privately and for non-commercial purposes;

  • (b) for experimental purposes; or

  • (c) for the purpose of breeding other plant varieties.

• Marginal note:Farmers’ privilege

  (2) The rights referred to in paragraphs 5(1)(a) and (b) and — for the purposes of exercising those rights and the right to store — the right referred to in paragraph 5(1)(g) do not apply to harvested material of the plant variety that is grown by a farmer on the farmer’s holdings and used by the farmer on those holdings for the sole purpose of propagation of the plant variety.

Marginal note:Non-application of rights

• 5.4 (1) The rights referred to in sections 5 to 5.2 do not apply to any act done in relation to material of a plant variety after the material has been sold in Canada by the holder or with the holder’s consent, unless that act involves

  • (a) the further propagation of the plant variety; or

  • (b) the export of material of the plant variety to a country that does not protect varieties of the plant genus or species to which the exported plant variety belongs if the exported material is not intended for consumption.

• Marginal note:Definition of material

  (2) For the purpose of subsection (1), material means propagating material and harvested material, including whole plants and parts of plants.

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.