Annulment and Revocation of Grants (continued)
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.
- 1990, c. 20, s. 38
- 2015, c. 2, s. 26(F)
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).
- 1990, c. 20, s. 39
- 2015, c. 2, s. 27
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.
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.
(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.
- 1990, c. 20, s. 41
- 2015, c. 2, s. 28(F)
Marginal note:Jurisdiction of provincial courts
42 (1) An action for infringement of plant breeder’s rights may be brought in the court of record that, in the province in which the infringement is alleged to have occurred, has jurisdiction pecuniarily to the amount of the damages claimed and that, in relation to other courts of the province, holds its sittings nearest to the place of residence or place of business of the defendant.
Marginal note:Proof of jurisdiction
(2) The court in which an action is brought in accordance with subsection (1) shall decide the action and determine costs, and assumption of jurisdiction by the court is of itself sufficient proof of jurisdiction.
Marginal note:Section 43 not impaired
(3) Nothing in this section impairs the jurisdiction of the Federal Court under section 43.
Marginal note:Jurisdiction of Federal Court
43 (1) The Federal Court has jurisdiction to entertain an action or proceeding, other than the prosecution of an offence, for the enforcement of a provision of this Act or a right or remedy conferred or defined thereby.
(2) Subject to section 44, the Federal Court has exclusive original jurisdiction, on the application of the Commissioner or of any interested person, to order that any entry in the register be struck out or amended on the ground that, at the date of that application, the entry as it appears on the register does not indicate with accuracy, to the extent of any requirement thereof by virtue of section 63, existing rights of the person appearing to be the registered holder of the plant breeder’s rights to which that entry relates.
Marginal note:Invalidation by Federal Court
(3) Subject to section 44, plant breeder’s rights may, at the instance of the Attorney General of Canada or an interested person, be declared invalid by the Federal Court, but only on the following grounds:
(4) A person who has reasonable cause to believe that any thing done or proposed to be done by that person might be alleged by the holder of plant breeder’s rights to constitute an infringement of those rights may, subject to subsection (5), bring an action in the Federal Court against the holder for a declaration that the thing so done or proposed to be done does not or would not constitute an infringement.
Marginal note:Proceedings not to be taken without giving security
(5) A plaintiff, except the Attorney General of Canada or the attorney general of a province, in an action referred to in subsection (4) shall, before proceeding therein, give security for the costs of the holder in such sum as the Court may direct.
Marginal note:Defendant not required to give security
(6) A defendant in an action for infringement of plant breeder’s rights is not required to give any security for the purpose of obtaining a declaration under subsection (4).
- 1990, c. 20, s. 43
- 2015, c. 2, s. 29
44 No person who has actual notice of a decision given by the Commissioner and a right to its review pursuant to any regulations made under paragraph 75(1)(m) or a right of appeal from that decision or any decision given on its review is entitled to institute any proceeding under subsection 43(2) or (3) calling into question the decision given by the Commissioner or on the review.
Marginal note:Holder required to take proceedings
45 (1) A person who has been granted, in respect of plant breeder’s rights, an authorization described in paragraph 5(1)(h) or a compulsory licence under subsection 32(1) may, subject to any agreement between that person and the holder of the rights,
(a) call on the holder to take proceedings for infringement of the rights; and
(b) where the holder refuses or neglects to take proceedings within the prescribed period after being called on under paragraph (a) to do so, institute in the name of that person, making the holder a defendant, proceedings for infringement as if that person were the holder.
Marginal note:Holder not liable for costs
(2) A holder who is made a defendant pursuant to paragraph (1)(b) is not liable for any costs unless the holder takes part in the proceedings.
- 1990, c. 20, s. 45
- 2015, c. 2, s. 30
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