2012 CIOPORA Chronicle

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International PBR systems For more than 20 years Canada has had IP protection for plant varieties, in the form of the Plant Breeders’ Rights Act, based on the 1978 UPOV Convention. Since 1998, varieties of all plant species have been eligible for plant variety protection in Canada. Administration of the Act is the responsibility of the Plant Breeders’ Rights Office, which is part of the Canadian Food Inspection Agency. by Sandy Marshall IP protection for plant innovations in Canada In implementing the legislation, Canada opted to have a “breeder testing” system for PBR. This means that the conduct of comparative trials to establish distinctness, uniformity and stability (DUS) of a new plant variety is the responsibility of the applicant. An examiner from the PBR office visits the trials to verify that UPOV test guidelines have been followed and that the candidate variety meets the requirements of DUS. Flower versus fruit varieties Ornamental plant breeders represent the majority of PBR applicants in Canada. Of the 305 applications filed in 2011, 218 (approximately 70%) were for ornamental varieties. Applications for fruit varieties consistently represent about 5% of total applications, with approximately half of those being from domestic breeders. The vast majority of Canada’s ornamental plant applications are from foreign breeders – nearly 98% in 2011. For many overseas breeders the process of obtaining a breeder’s right in Canada has been facilitated by the establishment of several private companies specialising in DUS testing. Independent, third party testing has provided a practical alternative for international breeders when trials are required to be conducted in Canada. At the present time, these companies are testing mainly ornamental and fruit varieties; however, there is also a company which specialises in potatoes. Peer review After trials have been completed and examined by the PBR office, the test data, variety descriptions and photos are submitted to the office for review. Variety descriptions Ornamental plant growing in Thunder Bay, Ontario. and photos are then published in the Plant Varieties Journal, which is available to the public via the internet. Following the publication, there is a 6 month objection period, after which, if there are no valid objections, a candidate variety can be granted rights. This period of peer review is an important component of Canada’s PBR system. In some circumstances, rather than growing trials in Canada, applicants are able to purchase the official results of foreign trials, if they were conducted in a UPOV member country, following UPOV test guidelines. Even in cases where the determination of DUS is based on a foreign trial, a variety description and photograph is published in Canada’s Journal and the final decision to grant rights is made after the expiration of the objection period. Enforcement As with other forms of intellectual property protection, enforcement of Canadian breeders’ rights is the responsibility of the holder of those rights. The Act does not give authority to customs officials or crop inspection staff to apprehend infringers. Several tools are utilized by the ornamental and fruit industries to enforce breeders’ rights including the use of flowering only (non-propagation) agreements and licensing contracts. There are a few companies active in Canada that will assist breeders with royalty collection, administration, compliance and monitoring services. UPOV 1991 Although Canada signed the 1991 UPOV Convention, the legislation remains based on UPOV 78, so that the UPOV 1991 Act is not yet ratified by Canada. Public consultations which have been conducted in recent years have indicated strong stakeholder support for amending the Act. With a current political climate that seems favourable, supporters of UPOV 91 are cautiously optimistic that initiatives to include PBR Act amendments in the Canadian government’s legislative agenda will be successful. ||| 46 www.CIOPORA.org | CIOPORA Chronicle April 2012
International PBR systems The Canadian Plant Breeder’Rights (PBR) programme has a unique system for examining the distinctness, uniformity, and stability (DUS) of new varieties. This system is referred to as a third party testing, or breeder testing, where DUS trials are not conducted at government facilities, but rather it is the responsibility of the breeder to organise a comparative trial. by Brenda Cole* Canadian PBRs include third party testing Third party testing requires a breeder to establish a PBR trial site within Canada at his or her choosing, whether this is with a grower or specialised company. At times, breeders may utilize a growers’ premise to conduct their trials, however most growers find the PBR requirements too onerous and incompatible with core business activities. In practice, most international breeders use companies that are specialised in the administration of PBR to conduct their DUS trials. Most Canadian bred varieties are tested by the breeders at their nursery, university or government research facility. Regulatory oversight Regulatory oversight of third party testing is an important component to the success of breeder testing. For most crop species the Canadian authorities provide the trial coordinator with detailed technical forms based on UPOV guidelines in effort to standardize the variety descriptions prepared for candidate and reference varieties. The Canadian authorities inspect each DUS trial in Canada to observe and record that the new variety is distinct, uniform and stable. During the inspection they will also verify that the trial meets certain standards set out for plant health, plant number, and to assess the suitability of the reference varieties. All results of the examination are published quarterly in the on-line Plant Varieties Journal to allow an opportunity for the public to comment. Greater scrutiny The DUS trials for many ornamental and fruit crops are conducted at centralised locations. These trials are managed to ensure that each new variety can be cross-compared Greenhouse grown trials for DUS testing. to competitor varieties, as well as have an array of reference varieties at one location for comparison. From a government perspective, the program is cost-effective as many varieties can be assessed during a single inspection period. As well, having a number of varieties within a species tested at a single location allows for greater scrutiny of the new candidates against a pool of reference varieties. Nonetheless, there are a limited number of breeding companies securing Plant Breeders’ Rights in Canada, with several opting not to legally protect their varieties. As a result, many new varieties that are commercially available are not assessed for DUS in Canada. A company’s decision not to protect a variety is most often fiscally based and reflects both a company’s market share and a variety’s market potential in Canada. Policy under review Canadian policy for DUS examination is under review. Currently, authorities allow breeders to purchase DUS reports, in lieu of a trial, for a range of crops including the major species such as Pelargonium, Poinsettia, pot Chrysanthemum and pot Roses. This is an attractive option to many breeders as it reduces overall costs and simplifies the management of their IP. The reluctance of the Canadian government to allow the purchase of foreign test results for all species lies in the risks that determination of distinctness can be dependent on environment. It is highly anticipated that Canadian policy in this area will change to accommodate more species in the future. ||| * The author, Brenda Cole is agent at BioFlora Inc.. This is a private company that specialises in services to help breeders protect new plant varieties in Canada. In addition to administering Canadian Plant Breeders’ Rights (PBR) applications, BioFlora is active in conducting greenhouse and field grown trials for DUS testing. CIOPORA Chronicle April 2012 | www.CIOPORA.org 47
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Page 4 and 5: Table of Contents 08 CIOPORA serves
Page 6 and 7: CIOPORA Members Agro Selection Frui
Page 8 and 9: A welcome from the President CIOPOR
Page 10 and 11: www.fides.nl FI 412 Ciopora adverte
Page 12 and 13: U.S. Plant Patents The United State
Page 14 and 15: U.S. Plant Patents Plants can be le
Page 16 and 17: Opinion The Selecta Group is a worl
Page 18 and 19: Jondle & Associates is a full servi
Page 20 and 21: Law case On 20 October 2011 the Cou
Page 22 and 23: Law cases In October 1996, De Ruite
Page 24 and 25: Plant breeders play a fundamental r
Page 26 and 27: Interview FCI had the honour to spe
Page 28 and 29: Interview the bath water. Another a
Page 30 and 31: Patents Parallel to the progress of
Page 32 and 33: Opinion PlantHaven is an independen
Page 34 and 35: Company profiles Founded in 1897, t
Page 36 and 37: International PBR systems As a coun
Page 38 and 39: LAW FIRM WITH FLOWER POWER Smithuij
Page 40 and 41: Marker technology DNA markers were
Page 42 and 43: Marker technology Time periods for
Page 44 and 45: Country profile Ornamental horticul
Page 48 and 49: Enforcement GESLIVE is a nonprofit
Page 50 and 51: 50617 Wuesthoff-Logo 10.11.2005 9:1

2012 CIOPORA Chronicle

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