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

Marginal note:Consideration of applications

• 23 (1) After the publication under section 70 of the particulars of an application, the Commissioner shall, in order to ascertain whether it conforms to this Act, consider the application and all documents and any other material that are submitted to the Commissioner in connection with the application.

• Marginal note:Tests and trials

  (2) For the purpose of determining if the plant variety to which the application relates meets the requirements set out in section 4, the Commissioner shall require the performance of any tests and trials with the plant variety, under any conditions, as the Commissioner considers necessary.

• Marginal note:Fee and materials

  (3) The person on whose part material is submitted for consideration under subsection (1) shall, without prejudice to the requirements of subsection 9(1) and at the time and place that the Commissioner directs,

  • (a) pay the appropriate prescribed examination fee;

  • (b) provide any of the following that the Commissioner considers necessary for the purposes of carrying out or evaluating the results of tests and trials with the plant variety in question:

    • (i) propagating materials,

    • (ii) information, whether by way of photographs, drawings, documentation or otherwise, respecting the plant variety, and

    • (iii) specimens of the plant variety or of parts of it; and

  • (c) provide any prescribed information, documents or materials.

Marginal note:Acceptance of foreign results

• 24 (1) If the Commissioner obtains from an appropriate authority in any country of the Union or agreement country the official results of tests and trials referred to in subsection 23(2) and the Commissioner considers them to be acceptable, the Commissioner may rely on those results. The person on whose part material is submitted for consideration under subsection 23(1) shall pay the costs incurred in obtaining those results.

• Marginal note:Submission to foreign tests and trials

  (2) The Commissioner may submit to the appropriate authority in a country of the Union or an agreement country, in order that any necessary tests and trials may be undertaken in that country with the plant variety in question, anything furnished in support, as required by subsection 9(1), of an application or in compliance with subsection 23(3) and the Commissioner may accept such results of any of the tests and trials as are furnished by that authority.

Marginal note:Prohibition during pendency of objection

25 Subject to the regulations, where an objection to an application has been filed under section 22, the Commissioner shall not, before disposal of the objection, carry out in respect of the application any functions of the Commissioner under section 23 or 24.

Marginal note:Abandonment of application

• 26 (1) An application shall be deemed to have been abandoned on failure of the applicant to prosecute the application, whether in default of compliance with subsection 23(3) or of payment of any fee pursuant to subsection 27(3) or otherwise, within the prescribed period after the taking on the part of the Commissioner, with respect to the application, of any action of which the Commissioner gives notice to the applicant.

• Marginal note:Reinstatement of abandoned application

  (2) An application deemed abandoned pursuant to subsection (1) may be reinstated

  • (a) within the prescribed time and on payment of the prescribed fee; or

  • (b) on petition presented to the Commissioner within the prescribed time subsequent to the time referred to in paragraph (a) and on payment of the prescribed fee if the petitioner satisfies the Commissioner that the failure to prosecute the application was not reasonably avoidable.

Grant, Refusal and Disposal of Plant Breeder’s Rights

Marginal note:Decision of Commissioner

• 27 (1) If the Commissioner approves a denomination proposed by an applicant under section 14 and, after consideration of the application in accordance with subsection 23(1) and evaluation of the results of any tests and trials carried out with the plant variety to which the application relates, the Commissioner is satisfied that the plant variety meets the requirements set out in section 4 and that the application otherwise conforms to this Act, the Commissioner shall grant plant breeder’s rights in accordance with subsection (3).

• Marginal note:Refusal

  (2) If the Commissioner is not satisfied as described in subsection (1), the Commissioner shall refuse the application.

• Marginal note:Request for exemption

  (2.1) In the case where the applicant for plant breeder’s rights has requested that those rights be exempted from compulsory licensing under subsection 32(1), the Commissioner may, at the time of the grant of those rights, approve that request if the Commissioner is satisfied with the reasons given by the applicant for that request.

• Marginal note:Rights granted by issuance of certificate

  (3) The Commissioner shall, on payment of the prescribed fee,

  • (a) enter in the register the particulars required by section 63 in relation to the plant variety in respect of which the plant breeder’s rights are to be granted; and

  • (b) make the grant by issuing a certificate of plant breeder’s rights in respect of the plant variety to the applicant.

• Marginal note:Opportunity for representations before refusal of grant

  (4) The Commissioner shall not refuse 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:Destroyed or lost certificates

  (5) If a certificate of plant breeder’s rights issued under paragraph (3)(b) is destroyed or lost, a certified copy may be issued in lieu of that certificate on payment of the prescribed fee.

Marginal note:Grant to joint applicants

28 If the Commissioner grants plant breeder’s rights to joint applicants as described in subsection 7(2), the grant shall be in the names of all those joint applicants.

29 [Repealed, 2015, c. 2, s. 20]

Maintenance of Propagating Material

Marginal note:Maintenance of propagating material

• 30 (1) A holder of the plant breeder’s rights respecting a plant variety shall

  • (a) ensure that he or she is in a position, throughout the period of his or her registration as the holder, to furnish the Commissioner, on request, with propagating material of that variety that is capable of reproducing that variety so that its identifiable characteristics correspond with those taken into account for the purpose of granting those rights; and

  • (b) provide the Commissioner at the Commissioner’s request with such facilities, free of charge, and with such information as the Commissioner deems necessary in order to be satisfied that the holder is causing the propagating material to be maintained and is otherwise complying with paragraph (a).

• Marginal note:Inspection

  (2) Facilities requested under paragraph (1)(b) may include facilities for inspection and the Commissioner has power to undertake the inspection accordingly for the purposes of that paragraph.

Assignment of Plant Breeder’s Rights

Marginal note:Assignment of plant breeder’s rights

• 31 (1) The Commissioner shall be, in the prescribed manner and within the prescribed period after the holder of plant breeder’s rights has assigned them,

  • (a) informed of the name and address of the assignee; and

  • (b) furnished with such proof of service of a notice of the assignment on any person granted any of those rights by licence under section 32 as is prescribed or as the Commissioner, in the absence or in lieu of anything so prescribed or in addition thereto, requires.

• Marginal note:Default precluding registration

  (2) An assignee who has not complied with subsection (1) may not be registered as the holder of the plant breeder’s rights.

• Marginal note:Unregistered assignment void against subsequent assignee

  (3) An assignment of plant breeder’s rights is void against a subsequent assignee thereof for valuable consideration without notice who is registered as the holder of the rights unless, before the subsequent assignee is so registered, the person to whom that assignment is made is registered as holder of the rights.

Compulsory Licences

Marginal note:Grant of compulsory licences

• 32 (1) Subject to subsections (2) to (6) and the regulations and if the Commissioner considers that it is appropriate to do so, the Commissioner may, on application by any person, authorize the doing of any act described in any of paragraphs 5(1)(a) to (g) by granting the person a compulsory licence.

• Marginal note:Objectives on granting compulsory licence

  (2) In disposing of an application for, and settling the terms of, a compulsory licence pursuant to this section in relation to any plant variety, the Commissioner shall endeavour to secure that

  • (a) the plant variety is made available to the public at reasonable prices, is widely distributed and is maintained in quality; and

  • (b) there is reasonable remuneration, which may include royalty, for the holder of the plant breeder’s rights respecting the plant variety.

• Marginal note:Provision as regards propagating material

  (3) A compulsory licence under this section may include terms requiring the holder of the plant breeder’s rights affected by the licence to make propagating material available to the holder of the compulsory licence.

• Marginal note:Variation and revocation of licence

  (4) The Commissioner may at any time, on representations made by any interested person, extend, limit, vary or revoke a compulsory licence granted pursuant to this section.

• Marginal note:Representations by persons adversely affected

  (5) The Commissioner shall not dispose of any application for, or settle the terms of, a compulsory licence pursuant to this section or exercise jurisdiction pursuant to subsection (4) without giving interested persons who will be adversely affected by the Commissioner’s decision a reasonable opportunity to make representations with respect thereto pursuant to such notice as the Commissioner deems it appropriate to give.

• Marginal note:Compulsory licence not to be exclusive

  (6) No compulsory licence that is an exclusive licence shall be granted pursuant to this section.

Marginal note:Concurrent compulsory and other licences permissible

• 33 (1) A person applying for a compulsory licence may be granted it pursuant to section 32, whether or not that or any other person has a licence, including an exclusive licence granted by the holder, in relation to the plant breeder’s rights that the compulsory licence affects.

• Marginal note:No contracting out

  (2) An agreement is invalid to the extent that it purports to bind any person not to apply for a compulsory licence or to apply for a grant thereof on any particular terms.

Annulment and Revocation of Grants

Marginal note:Annulment of grant

34 The Commissioner may, before the end of the term fixed by subsection 6(1) for a grant of plant breeder’s rights, annul the grant if the Commissioner is satisfied that, at the time of the grant of those rights, the requirements set out in section 4 or the conditions set out in subsection 7(1) were not fulfilled or the holder was otherwise not entitled under this Act to the grant.

Marginal note:Revocation of plant breeder’s rights

• 35 (1) The Commissioner may, prior to the end of the term fixed by subsection 6(1) for a grant of any plant breeder’s rights, revoke the rights if the Commissioner is satisfied that

  • (a) their holder has failed to comply with paragraph 30(1)(a);

  • (b) their holder has failed, within the prescribed period, to comply with any request of the Commissioner referred to in section 30;

  • (c) their holder has failed to comply with a direction under section 16.1 to change the denomination of the plant variety to which the rights relate;

  • (d) their holder has failed, within the prescribed period, to pay the fee required under subsection 6(2); or

  • (e) the plant variety which is the subject of those rights no longer meets the conditions described in paragraph 4(2)(c) or (d).

• (2) [Repealed, 2015, c. 2, s. 24]

Marginal note:Procedure

• 36 (1) The Commissioner shall, before annulling a grant of plant breeder’s rights or revoking those rights, give notice in writing that the Commissioner proposes to annul the grant or revoke the rights and the grounds on which the Commissioner proposes to do so to

  • (a) the holder of those rights;

  • (b) any person licensed under section 32 to exercise any of those rights; and

  • (c) any person who appears to the Commissioner to be otherwise sufficiently interested in any of those rights.

• Marginal note:Objection

  (2) Within

  • (a) the prescribed period after the date on which notice is given under subsection (1), or

  • (b) such further period as the Commissioner may allow,

  any interested person may file with the Commissioner an objection against the intended annulment or revocation to which the notice relates.

• Marginal note:Representations to be taken into account

  (3) Where, under subsection (2), an interested person files an objection against any intended annulment or revocation, the Commissioner shall not carry out the intention or otherwise dispose of the objection unless the Commissioner has taken into account any representations made by interested persons with respect to the matters in question.

• Marginal note:Opportunity to object and make representations

  (4) Interested persons having objections to file in accordance with subsection (2) or representations to make for the purposes of subsection (3) shall be given a reasonable opportunity to do so pursuant to such notice as the Commissioner deems appropriate, but nothing in this subsection prejudices the requirements of subsection (1).

Marginal note:Carrying out annulment or revocation

37 The Commissioner’s intention to annul the grant of plant breeder’s rights pursuant to section 34 or to revoke them pursuant to section 35 shall be carried out on the grounds set out in the notice referred to in subsection 36(1) unless the grounds are shown to be false or, in the case of grounds specified in paragraphs 35(1)(b) to (e), any other cause considered by the Commissioner to be sufficient for abandoning that intention is shown.

Surrender of Plant Breeder’s Rights

Marginal note:Surrender of plant breeder’s rights

• 38 (1) The holder of the plant breeder’s rights respecting a plant variety may surrender those rights by giving the Commissioner notice to that effect and, in the case of rights affected by a compulsory licence granted under section 32, by satisfying the Commissioner that a copy of the notice has been given to the holder of that licence.

• Marginal note:Fees due not affected

  (2) No surrender of plant breeder’s rights shall affect any liability for any fee due and payable in respect of those rights before the surrender.