Principles of Plant Genetics and Breeding

Canada’s Plant Breeders’ Rights Act
SEED CERTIFICATION AND COMMERCIAL SEED MULTIPLICATION 443
Canada’s Plant Breeders’ Rights (PBR) Act was brought into force in 1990. Canada’s PBR Act adheres to the terms of the 1978
UPOV Convention. Canada signed the 1991 UPOV Convention on March 9, 2002, to signify our intention to ratify. However, to
adopt the amended convention, changes must be made to Canada’s PBR Act. There has been a PBR Act Amendments consultation,
which ended on March 8, 2005. The purpose of the consultation was to assess stakeholder views regarding the following
proposed amendments:
1 The extension of plant breeders’ rights to enclose conditioning, exporting, and importing of propagation material.
2 The extension of the minimum period of protection from 15 to 20 years,
3 To allow 1 year of sale prior to an application for protection.
4 To provide applicants with provisional protection while their application is pending (between the filing of the application
and the grant of the right).
5 To explicitly state the farmers’ exemptions in the PBR Act.
The Canadian Food Inspection Agency (CFIA) is presently reviewing comments and will seek the PBR Advisory Committee’s
views on the possibility of amending the PBR Act to be in conformity with the 1991 UPOV Convention. The PBR Advisory
Committee includes representatives of plant breeders, farmers, growers, industry, and other stakeholders.
According to the 1991 UPOV Convention, a new member of the Union must offer protection to all plant genera and species
within 5 years. Since 1998, Canada’s PBR Act provides protection to all plant species, excluding algae, bacteria, and fungi.
The Ten Year Review of Canada’s PBR Act, published in 2002, concluded that the PBR Act contributed to an increase in investment
in plant breeding, research infrastructure, and technologies. In addition, it contributed to an improvement in the mechanism
by which to obtain foreign varieties.
Protection inside Canada
An application for a plant breeder’s right must be submitted to the PBR Office (PBRO), which is part of the CFIA. The PBRO examines
applications to determine if applicants are eligible to receive a grant of rights. The candidate variety is submitted to comparative
tests and trials to determine if it meets the requirements for distinctiveness, uniformity, and stability (DUS). In Canada, these
trials are conducted by the breeder/applicant or by someone contracted by the applicant.
To begin the examination process, the applicant must submit a request for a PBR site examination for each candidate variety.
An examiner from the PBRO visits the trial site to verify the comparative tests and trials and to see if the candidate variety meets
the DUS requirements. Following the site examination, the applicant must submit a completed objective description form, a
description of the comparative tests and trials, and comparative photographs that demonstrate the characteristics which distinguish
the candidate variety from the reference variety(ies). Reference varieties are varieties of the same species that are the most
similar morphologically to the candidate variety and that are grown in Canada at the time of filing the application.
A PBR examiner then prepares a description of the candidate variety and a summary of its distinguishing characteristics. This is
published in the Plant Varieties Journal and submitted to a 6-month objection period. If, after this period, no objections have been
raised by the public, the variety is eligible for a grant of rights.
After the right has been granted, the holder of the right has the responsibility to maintain the protected variety. He must also be
able to supply the Commissioner of the PBRO with a sample of propagating material at any time during the term of protection. The
Commissioner may inspect the facilities used to maintain the variety. If the holder of the right fails to maintain the variety, is unable
to supply propagating material of the variety, or fails to pay the annual renewable fees, the Commissioner may revoke the PBR.
Protection outside Canada
If a plant breeder’s right is granted in Canada, the variety protection is only valid in Canada. To extend variety protection to
another member country, the plant breeder must apply separately to the appropriate authority of that country. For example, for
protection in the United States, applications must be directed to the United States Patent and Trademark Office (USPTO) in the
case of asexually propagated plants (except tubers) or to the Plant Variety Protection Office (PVPO) in the case of sexually reproduced
and tuber-propagated plants. In Europe, applications can be directed to the Community Plant Variety Office (CPVO).
Through this office, breeders can obtain protection inside all European Union countries with one application.
The addresses and websites of the plant variety protection offices in the UPOV member states can be found on the UPOV website
(http://www.upov.int). A list of the taxa protected in the UPOV member states was published by UPOV on October 15, 2005,
and is also available on the UPOV website.
Naming protected plant varieties
When applying for a PBR, the applicant must propose a denomination that conforms to the CFIA Variety Naming Guidelines and
to the UPOV Recommendations on Variety Denominations. The variety denomination is approved by the PBRO only after its
publication in the Plant Varieties Journal and an objection period of 6 months.