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

Short Title

Marginal note:Short title

1 This Act may be cited as the Plant Breeders’ Rights Act.

Interpretation

Marginal note:Definitions

• 2 (1) In this Act,

  advertise

  advertise, in relation to a plant variety, means to distribute to members of the public or to bring to their notice, in any manner whatever, any written, illustrated, visual or other descriptive material, oral statement, communication, representation or reference with the intention of promoting the sale of any propagating material of the plant variety, encouraging the use thereof or drawing attention to the nature, properties, advantages or uses thereof or to the manner in which or the conditions on which it may be purchased or otherwise acquired; (publicité)

  advisory committee

  advisory committee means such advisory committee as may be constituted pursuant to subsection 73(1); (comité consultatif)

  agent

  agent, in relation to an applicant or a holder of plant breeder’s rights, means a person who is duly authorized by the applicant or holder to act, for the purposes of this Act, on behalf of the applicant or holder and to whom as a person so authorized recognition is, consistent with any requirements prescribed therefor, accorded by the Commissioner; (mandataire)

  agreement country

  agreement country means any of the following entities that is designated by the regulations as an agreement country with a view to the fulfilment of an agreement concerning the rights of plant breeders made between Canada and that entity:

  • (a) a country,

  • (b) a colony, protectorate or territory subject to the authority of another country or under its suzerainty,

  • (c) a territory over which another country exercises a mandate or trusteeship; (pays signataire)

  applicant

  applicant means a person by or on behalf of whom an application for the grant of plant breeder’s rights is made pursuant to section 7; (requérant)

  breeder

  breeder, in respect of a plant variety, means

  • (a) any person who originates or who discovers and develops the plant variety, or

  • (b) any person in respect of whom an officer, servant or employee, while acting within the scope of his or her duties as the officer, servant or employee of that person, originates or discovers and develops the plant variety; (obtenteur)

  category

  category means, in relation to a plant, a species, a grouping of species or any class within a species; (catégorie)

  Commissioner

  Commissioner means the Commissioner of Plant Breeders’ Rights designated pursuant to subsection 56(2) and, except in section 56, includes any person acting under a written authorization given pursuant to section 58; (directeur)

  country of the Union

  country of the Union means any country or other entity that is a party to the International Convention for the Protection of New Varieties of Plants of December 2, 1961, as amended from time to time, or any WTO Member as defined in subsection 2(1) of the World Trade Organization Agreement Implementation Act; (État de l’Union)

  document

  document means anything on which information that is capable of being understood by a person, or read by a computer or other device, is recorded or marked; (document)

  filing date

  filing date means, in respect of an application, the date specified in the notice given under subsection 10(2); (date de dépôt)

  holder

  holder, in relation to plant breeder’s rights, means the person whom the register indicates, with respect to a plant variety, is entitled to the plant breeder’s rights respecting that variety by a grant made under section 27 or is an assignee of, or other successor in title to, the rights granted under that section in respect of that variety; (titulaire)

  index

  index means the index prepared pursuant to section 62; (répertoire)

  infringement

  infringement, in relation to plant breeder’s rights, means the doing, without authority under this Act, of anything that the holder of those rights has the right to do under any of sections 5 to 5.2; (violation)

  legal representative

  legal representative, in respect of a breeder of a plant variety, includes the breeder’s executor or administrator and any assignee of, or other successor in title to, the rights of the breeder in respect of the plant variety; (représentant légal)

  Minister

  Minister means the Minister of Agriculture and Agri-Food; (ministre)

  new variety

  new variety means a plant variety that is described in subsection 4(3); (obtention végétale)

  person

  person has the same meaning as in section 2 of the Criminal Code; (personne)

  plant breeder’s rights

  plant breeder’s rights, in relation to a plant variety, means the rights that are granted under section 27; (certificat d’obtention)

  plant variety

  plant variety means any plant grouping within a single botanical taxon of the lowest known rank that, whether or not the conditions for the grant of plant breeder’s rights are fully met, is capable of being

  • (a) defined by the expression of the characteristics resulting from a given genotype or combination of genotypes,

  • (b) distinguished from any other plant grouping by the expression of at least one of those characteristics, and

  • (c) considered as a unit with regard to its suitability for being reproduced unchanged; (variété végétale)

  prescribed

  prescribed means prescribed by regulation; (Version anglaise seulement)

  propagating material

  propagating material means any reproductive or vegetative material for propagation, whether by sexual or other means, of a plant variety, and includes seeds for sowing and any whole plant or part thereof that may be used for propagation; (matériel de multiplication)

  protective direction

  protective direction[Repealed, 2015, c. 2, s. 2]

  register

  register means the register kept pursuant to section 63; (registre)

  sell

  sell includes agree to sell, or offer, advertise, keep, expose, transmit, send, convey or deliver for sale, or agree to exchange or to dispose of to any person in any manner for a consideration. (vente)

• (2) [Repealed, 2015, c. 2, s. 2]

Her Majesty

Marginal note:Act binds Crown

3 This Act is binding on Her Majesty in right of Canada or a province.

Conditions for Protection

Marginal note:Eligible plant varieties

• 4 (1) Plant breeder’s rights may not be granted except in respect of a plant variety that belongs to a prescribed category and meets all of the conditions set out in subsection (2).

• Marginal note:Conditions

  (2) Plant breeder’s rights may be granted in respect of a plant variety if it

  • (a) is a new variety;

  • (b) is, by reason of one or more identifiable characteristics, clearly distinguishable from all varieties whose existence is a matter of common knowledge at the filing date of the application for the grant of plant breeder’s rights respecting that plant variety;

  • (c) is stable in its essential characteristics in that after repeated propagation or, if the applicant has defined a particular cycle of propagation, at the end of each cycle it remains true to its description; and

  • (d) is, having regard to the particular features of its sexual reproduction or vegetative propagation, a sufficiently homogeneous variety.

• Marginal note:New variety

  (3) A plant variety is a new variety if the propagating or harvested material of that variety has not been sold by, or with the concurrence of, the breeder of that variety or the breeder’s legal representative

  • (a) in Canada, before

    • (i) the prescribed period preceding the filing date of the application for the grant of plant breeder’s rights, in the case of a variety belonging to a recently prescribed category, and

    • (ii) the period of one year before the filing date of the application for the grant of plant breeder’s rights, in the case of any other variety; and

  • (b) outside Canada, before

    • (i) the period of six years before the filing date of the application for the grant of plant breeder’s rights, in the case of a tree or vine, and

    • (ii) the period of four years before the filing date of the application for the grant of plant breeder’s rights, in any other case.

• Definition of sufficiently homogeneous variety

  (4) For the purposes of paragraph (2)(d), sufficiently homogeneous variety means a variety for which, in the event of its sexual reproduction or vegetative propagation in substantial quantity, any variations in characteristics of the plants so reproduced or propagated are predictable, capable of being described and commercially acceptable.

• Marginal note:Regulations

  (5) The Governor in Council may make regulations prescribing classes of sales that are not to be considered sales for the purposes of subsection (3).

Plant Breeder’s Rights

Marginal note:Nature of plant breeder’s rights

• 5 (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

  • (a) to produce and reproduce propagating material of the variety;

  • (b) to condition propagating material of the variety for the purposes of propagating the variety;

  • (c) to sell propagating material of the variety;

  • (d) to export or import propagating material of the variety;

  • (e) to make repeated use of propagating material of the variety to produce commercially another plant variety if the repetition is necessary for that purpose;

  • (f) in the case of a variety to which ornamental plants belong, if those plants are normally marketed for purposes other than propagation, to use any such plants or parts of those plants as propagating material for the production of ornamental plants or cut flowers;

  • (g) to stock propagating material of the variety for the purpose of doing any act described in any of paragraphs (a) to (f); and

  • (h) to authorize, conditionally or unconditionally, the doing of any act described in any of paragraphs (a) to (g).

• Marginal note:Royalty

  (2) Without prejudice to any rights or privileges of the Crown, an authorization conferred under paragraph 1(h) may be subject to a condition to pay royalty to the holder of the plant breeder’s rights whether or not the holder is Her Majesty in right of Canada or a province.

Marginal note:Rights respecting harvested materials

5.1 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 any harvested material, including whole plants or parts of plants, that is obtained through the unauthorized use of propagating material of the plant variety, unless the holder had reasonable opportunity to exercise his or her rights under section 5 in relation to that propagating material and failed to do so before claiming rights under this section.

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.