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

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29 [Repealed, 2015, c. 2, s. 20]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.

Agents

Marginal note:No residency or establishment

• 39 (1) If a holder of plant breeder’s rights, in the case of an individual, is not resident in Canada or, in the case of a person that is not an individual, does not have an establishment in Canada, the holder shall have an agent in respect of those rights who is resident in Canada.

• Marginal note:Where agent lacking

  (2) Notwithstanding anything in this Act, where an applicant or a holder of plant breeder’s rights fails to

  • (a) comply with subsection 9(2) or subsection (1), or

  • (b) furnish the Commissioner, in writing, with the name and address of a new agent or with a new and correct address, as the case may require, on notice from the Commissioner that

    • (i) the agent of the applicant or holder has died or, pursuant to section 40, is refused continued recognition by the Commissioner, or

    • (ii) a letter sent by ordinary mail to the agent of the applicant or holder at the agent’s address of which the Commissioner last had notice has been returned undelivered,

  the Commissioner or the Federal Court may, without requirement of service on the applicant or holder, dispose of any proceedings under this Act after the continuance of that failure for the prescribed period or any further period allowed by the Commissioner or the Federal Court, as the case may be.

• Marginal note:Other consequences not affected

  (3) Nothing in subsection (2) affects any consequences, other than those for which that subsection provides, that the applicant or holder may, at law, suffer as a result of any failure described in paragraph (2)(a) or (b).

Marginal note:Refusal of recognition

40 The Commissioner may, for any gross misconduct or prescribed cause or any other reasonable cause considered by the Commissioner to be sufficient, refuse to recognize, or to continue to recognize, any person as authorized by an applicant or a holder of plant breeder’s rights to act in the capacity of agent.

Civil Remedies

Marginal note:Infringement

• 41 (1) A person who infringes plant breeder’s rights is liable to the holder thereof and to all persons claiming under the holder for all damages that are, by reason of the infringement, sustained by the holder or any of those persons and, unless otherwise expressly provided, the holder shall be made a party to any action for the recovery of those damages.

• Marginal note:Relief in the event of infringement

  (2) In an action for infringement of plant breeder’s rights that is before a court of competent jurisdiction, the court or a judge thereof may make any interim or final order sought by any of the parties and deemed just by the court or judge, including provision for relief by way of injunction and recovery of damages and generally respecting proceedings in the action and, without limiting the generality of the foregoing, may make an order

  • (a) for restraint of such use, production or sale of the subject-matter of those rights as may constitute such an infringement and for punishment in the event of disobedience of the order for that restraint;

  • (b) for compensation of an aggrieved person;

  • (c) for and in respect of inspection or account; and

  • (d) with respect to the custody or disposition of any offending material, products, wares or articles.

• Marginal note:Appeals

  (3) An appeal lies from any order under subsection (2) under the same circumstances and to the same court as from other judgments or orders of the court in which the order is made.