Changes to the Plant Breeders' Rights Act: information for applicants
The Agricultural Growth Act is designed to modernize Canada's federal agriculture legislation and encourage innovation in the sector. Among the key changes are amendments to the Plant Breeders' Rights Act (PBR Act) which encourages investment in plant breeding in Canada and fosters more accessibility to foreign seed varieties for farmers.
When did the amendments to the PBR Act come into force?
The amendments to the PBR Act came into force on February 27, 2015 and include provisions that bring it in line with the 1991 Act of the International Convention for the Protection of New Varieties of Plants (UPOV 91).
How does this affect plant breeders' rights that were granted before the changes came into force?
All PBRs granted prior to February 27, 2015 remain in place. The PBR Act as it read until February 27, 2015, continues to apply to these PBRs.
I have applied for plant breeders' rights before the changes came into force. How does this affect me?
All PBR applications that were accepted for filing before February 27, 2015 but had not resulted in the granting of rights by that date will benefit from all provisions of the amended PBR Act except for "provisional protection". Protective direction is still applicable to these applications.
What is "provisional protection"?
All PBR applications accepted for filing on or after February 27, 2015 will benefit from all the new provisions of the amended PBR Act, including "provisional protection".
Similar to protective direction, the new "provisional protection" is a form of interim protection that enables a breeder to seek remuneration from any person who carries out acts which, if rights were granted, would require the rights holder's authorization. However, in order for a rights holder to be entitled to fair remuneration from any person, that person must have been notified, in writing, that a PBR application had been filed. Unlike "protective direction" under the old PBR Act which was available upon request and required payment of a fee at the time a PBR application was filed, "provisional protection" will be granted automatically to all new PBR applications and there are no additional fees for this interim protection.
When does provisional protection begin?
The period of "provisional protection" begins on the filing date of the PBR application and ends with the granting of rights.
Are there restrictions on the sale of propagating material by the applicant during the period of provisional protection?
There are no restrictions on the sale of propagating material of the plant variety by the applicant during the interim period of provisional protection.
What are the other changes under the new PBR Act?
The following are some other major changes resulting from the amended PBR Act:
- The sale within Canada of plant varieties is allowed for one year prior to the filing date of the PBR application;
- The sale outside Canada of tree and vine varieties is allowed for six years prior to the filing date of the PBR application. For all other eligible plant varieties, sales outside Canada are allowed for four years prior to the filing date of the PBR application;
- The duration of protection is extended from 18 years to 25 years for trees and vines, and to 20 years for all other eligible plant varieties;
- The exclusive rights available to the rights holder are expanded to include reproduction, exportation, importation, conditioning, and stocking of propagating material of the plant variety;
- The exclusive rights are also extended to harvested material, but only in the case where the harvested material has been obtained through the unauthorized use of propagating material and the rights holder has not had reasonable opportunity to exercise their rights in relation to that propagating material;
- The holder's rights do not extend to production, reproduction, conditioning, and storing/stocking of harvested material of the protected plant variety grown by a farmer on the farmer's holdings and used by the farmer on their own holdings for the purpose of propagation of the variety (e.g. farm-saved seed). Canadian farmers will be able to continue saving, cleaning, treating, storing and replanting seed of protected varieties on their own land.
Learn more about the Agricultural Growth Act and changes to Plant Breeders' Rights.
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