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Plant Breeders’
Rights
Protection
In Canada, you cannot apply for a plant patent, because plants are considered higher life forms.
However, the Plant Breeders' Rights Act offers legal protection of new plant varieties for a period of 20 or 25 years depending on the type of plants.
All plant species, except algae, bacteria, and fungi, are eligible for protection. In order to obtain Plant Breeders' Rights (PBR), the plant must be new, distinct, uniform and stable. Obtaining a PBR is a three-part process that includes filing an application, the examination and the granting of rights. In most cases, the application must include seed samples.
There is a grace period of one year in which an applicant may sell a plant variety within Canada prior to filing an application at the Plant Breeders' Rights Office.
There is a four-year grace period for sales of most plant varieties made outside of Canada. The sale of vines, trees or rootstocks outside of Canada has a six-year grace period.
Aventum’s Plant
Breeders’ Rights
Expertise
Aventum IP Law LLP can assist you throughout the course of the PBR process, including assistance with any special license or customs requirements to import seeds into Canada for the purposes of filing a PBR application.
Plant
Breeders’
Rights FAQ
What conditions must be met in order to obtain protection?
- New — not previously sold
- Different from all other varieties
- All plants in the variety must be the same
- Stable — each generation is the same
Why might an application be refused?
Following an examination, an application may be refused grant of rights if the Commissioner:
- Finds that the application does not fit the conditions required to be protected (new, distinct, uniform and stable).
- Has withdrawn a protective direction and finds no reason to grant a right.
- Has found that the application does not conform to the Act or Regulations.
Before the Commissioner refuses an application, he/she will inform the applicant of the reasons for the refusal. At this time, the applicant will have an opportunity to make representations in support of his/her case.
Who can apply for PBR?
The applicant may be:
- the breeder of the new variety
- the breeder’s employer/legal representative
- individual person
- company/organization
A Canadian address is required for all applications to which correspondence from the Plant Breeders’ Rights Office may be sent.
If the applicant(s) reside outside of Canada, they must authorize a Canadian agent to act on their behalf throughout the PBR process and for the duration of the protection.
My claim has been granted, now what?
Once your claim has been granted, you are entitled to control the multiplication and sale of the seeds for the duration of the protection period. Others are allowed to breed or save and grow the varieties for their own private use without asking your permission to do so.
PBR objections
The PBRO publishes the Plant Varieties Journal (released quarterly) containing information concerning plant breeders’ rights. The Journal gives the opportunity for others to review the information concerning a variety and to object if they feel any of the requirements have not been met.
If there are no valid objections filed within a 6 month period after the Plant Varieties Journal is published, the variety becomes eligible for grant of rights.
Applying for plant breeders' rights
Once a completed application has been submitted to the Plant Breeders’ Rights Office, the application receives an official filing date.
The day that all of the required items are submitted will determine the effective date of an application. This date will be used to determine the priority of applications if two varieties under examination are found to be indistinguishable.
Maintenance of propagating material
Throughout the term of protection, the holder of the rights is responsible for supplying the Commissioner with a sample of propagating material of the variety.
At any time, the Commissioner may request propagating material samples or an inspection of the facilities used for maintaining the variety. Once the request has been made, the holder has 60 days to provide the sample of the propagating material. If the holder fails to comply with these requests it may result in the revocation of the rights.
