The practice of plant breeding has developed new plant varieties with a wide variety of desirable attributes. For example, plant varieties having better growing characteristics, an improved sensory profile, an enhanced physical appeal, or a heightened nutritional value can be created through a variety of techniques, thereby bringing many benefits in the areas of agriculture, forestry, and horticulture. New plant varieties can be produced sexually by pollinating one plant variety with the pollen from another or asexually by exposing a plant variety to mutagens. Molecular breeding techniques, for example recombinant DNA technology and genetic engineering, can also be used to develop new plant varieties.
A new plant variety can generate great commercial value to the plant breeder. For instance, midge tolerant wheat varieties are estimated to have a $40 million annual economic impact. With the growth in the craft beer brewing industry and the impending legalization of recreational marijuana in Canada, many new varieties of hops have recently been developed, and it is anticipated that many will seek to develop and protect new strains of cannabis.
In many cases, developing a new plant variety can be costly and time-consuming. To protect their newly developed plant varieties, plant breeders can use Canada’s Plant Breeders’ Rights Act. In Canada, the patenting of higher life forms, such as plants, is not directly permitted , and also, plants developed by traditional breeding techniques generally do not qualify for patent protection. Plant breeders’ rights granted under the Plant Breeders’ Rights Act give the breeder exclusive rights in relation to propagating material of the protected variety, harvested material of the protected variety obtained through unauthorized use of the propagating material, essentially derived varieties, varieties that are not clearly distinguishable from the protected variety, and varieties whose production requires the repeated use of the protected variety. Furthermore, plant breeders’ rights can be obtained in respect of varieties developed by molecular breeding or traditional breeding techniques.
Unlike other forms of intellectual property (such as patents, industrial designs, and trademarks) which are administered by the Canadian Intellectual Property Office, plant breeders’ rights are administered by a separate government agency known as the Plant Breeders’ Rights Office (“PBRO”) which is part of the Canadian Food Inspection Agency. The PBRO examines applications for new plant varieties to determine whether the applicants are entitled to receive a grant of rights. The PBRO also publishes the Plant Varieties Journal.
Requirements for Protection
To qualify for plant breeders’ rights, a plant variety must be new, distinct, stable, and uniform. Each of these requirements is described briefly below.
A plant variety is new if the propagating or harvested material of that variety has not been sold in Canada more than one year prior to the filing of the application for plant breeders’ rights. For sales outside Canada, a sale cannot have been made more than six years prior to the application date in the case of a tree or vine and four years in any other case.
Distinctiveness means that by reason of one or more identifiable characteristics, a plant variety is clearly distinguishable from all varieties of common knowledge known to exist at the time the application was filed. Generally, distinctiveness is evaluated with respect to one or more reference varieties. The reference varieties should be varieties of common knowledge, which have been cultivated or exploited for commercial purposes or described in publications available to the public.
Stability means that the variety must be stable in its essential characteristics after repeated reproduction or propagation.
Lastly, uniformity means that the variety must be sufficiently uniform in its relevant characteristics. Any variations in characteristics of the plants should be predictable, capable of being described and commercially acceptable.
To acquire plant breeders’ rights, it is necessary to file an application. When filing an application for plant breeders’ rights, the applicant must propose a variety name as denomination for the new variety. The denomination cannot be registered as a trademark in Canada since it must be freely available for use by other parties, even after the plant breeders’ rights for the variety have expired.
Additionally, the applicant must submit 1) information on sales of the variety, 2) origin and breeding history of the variety, 3) a statement of uniformity and stability, and 4) a distinctiveness statement.
An application may claim priority based on a previously filed foreign application in a member country of the International Union for the Protection of New Varieties of Plants (“UPOV”) within one year from the filing date of the first foreign application. A list of UPOV members can be found here. For example, an application for plant breeders’ rights in Canada can claim priority based on a previously filed corresponding United States plant patent application, provided that the Canadian application is filed within 12 months after the United States application.
Plant Varieties Journal
Every application for plant breeders’ rights is published in the Plant Varieties Journal and is subject to a six-month objection period. Any person who considers that an application should be refused a grant of rights or that the proposed variety denomination is not acceptable may file an objection, on payment of a fee.
To proceed with examination, the applicant must file a request for site examination with the PBRO. The examination determines if a new plant variety is distinct, stable, and uniform.
Seed reproduced varieties require two growing cycles of comparative tests and trials. However, a breeder is able to replace one growing cycle by purchasing foreign test results, if available. The other growing cycle must take place at a trial site in Canada to allow an examiner from the PBRO to conduct a site examination and verify that the variety is distinct, stable, and uniform. For ornamental or horticultural varieties (except potato), a breeder can rely on foreign test results to establish that a plant variety is distinct, stable, and uniform, except that the PBRO may require comparative trials in Canada if it determines the foreign test results are not acceptable.
Grant of Rights
Once the PBRO determines that the variety is eligible for grant of rights, a certificate of plant breeder’s rights is issued. Plant breeders’ rights are granted for a term of 25 years in the case of a tree or vine and 20 years in any other case, provided that the annual renewal fees are paid.
Plant breeders’ rights provide a way for breeders to protect and achieve a return on their newly developed plant varieties. Such protection provides an incentive for breeders to recover their investment and continue to develop new plant varieties having useful traits.
Footnotes Harvard College v Canada (Commission of Patents), 2002 SCC 76.