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Author: Marsha Simone Cadogan
The Plant Breeders’ Act grants rights to breeders of new plant varieties. Its regulations provide specific information on how the law applies in Canada, covering the filing of applications, the extent of protection, exclusivity, and exemptions. The Canadian Food Inspection Agency (CFIA) administers the Act and its regulations. Following consultations with key stakeholders across Canada, the CFIA has published amendments to the Plant Breeders’ Regulation. The major changes are outlined below.[1]
1.An increase in the term of protection from twenty years to twenty-five years for asparagus, potato and woody plant species. The term of protection for other new plant varieties that are neither trees nor vines remains at twenty years.
2. Farmers’ privilege allows a farmer who buys a new plant variety to use the harvested material from that variety for personal use and for replanting on their own farm. However, this right will not apply to a new plant variety that is a fruit, ornamental, or vegetable plant. Farmers’ privilege also will not apply to plants reproduced by using parts of the parent plant, or to hybrids and the parental varieties used to create hybrids.
3. For filed applications, the Plant Breeders’ Rights Office requires a reference sample of the propagating material of the new plant variety. With the changes to the regulation, the reference sample may be submitted (with the Commissioner’s approval) after the application has been submitted, but before the granting of rights.
4. One requirement for registration is that the new plant variety be novel. For example, in domestic applications, if the new plant variety has been sold for more than 1 year before the filing date, the novelty requirement is not met. Prior to the changes, sales included advertising of the plant variety or its exposure for some type of remuneration or benefit. However, these two activities will no longer be considered sales for purposes of determining whether the variety has been disclosed in Canada or elsewhere.
5. If plant breeders’ rights have been transferred, the period for notifying the Plant Breeders’ Rights Office of this change increases from thirty days to one year.
6. When a plant breeder’s rights are assigned, the assignor and assignee are required by the Act to provide a letter of assignment signed in the presence of witnesses to the Plant Breeders’ Rights Office. Witnesses will no longer be required for letters of assignment.
This post is for general information purposes only and is not intended to be legal advice.
To register new plant varieties in Canada or internationally, or to find out more about these updates, you may contact Marsha Simone Cadogan.
[1] Regulations Amending the Plant Breeders’ Rights Regulations: SOR/2026-74 (Canada Gazette, Part 2, Volume 160, Number 9: Regulations Amending the Plant Breeders’ Rights Regulations)