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Author: Marsha Simone Cadogan
Plant Breeders’ Rights give developers of new plant types exclusive rights to grow and sell their plants. A plant variety is recognized by law (Plant Breeders’ Rights Act)[1] as a plant defined by its unique genetic traits, different from other plant groups by at least one genetic feature, and can be treated as a single type because it can be reproduced without changes. These rules set the requirements for protection. Plant varieties can be garden or farm plants. Quinoa, chickpea, fenugreek, asparagus, and rye are examples of new plant varieties.
Protection Requirements
The variety must be novel, distinct, stable and uniform. Novelty means that prior to a year before the filing date, the plant variety should not have been sold, or given to others by the breeder for the purposes of exploiting the variety. Since the plant variety must be distinct, registration will not be granted to plant varieties that are not distinguishable from others which already exist. The characteristics of the variety must be uniform and remain unchanged in all repeated propagation (stable and uniform). The propagating material is the seed or any part of the plant which is used to reproduce it.
The Rights Granted
Plant breeders’ rights are granted for twenty-five years (trees and vines) and twenty years for all other types of plant varieties. The rights holder has several exclusive rights over the propagating material in the protected variety.[2] These include the right to control its production or reproduction, its export or import, its sale or marketing, distribution, advertising, and stocking for the purpose of commercializing it.
The name (its denomination) of the new plant variety is also protected. It cannot be trademarked, whether in relation to the plant variety or by another developer of plant varieties.
There are exceptions to these rights. A third party, for example, may use a registered plant variety for private and non-commercial purposes or, for experimentation purposes, without infringing the breeder’s right. The new plant variety may be subject to compulsory licensing or exempt from it. When granted, compulsory licensing allows the licensee to produce, market and sell the new plant variety without the consent of its developer.
Governing Agency
Plant varieties are administered by the Canadian Food Inspection Agency (CFIA). Registration of new plant varieties, including their names (denomination), is subject to CFIA approval.
Filing for Protection in Several Countries
Applications for plant variety protection in several countries using a single international application are possible if the countries are members of the International Union for the Protection of New Varieties of Plants (UPOV). Canada is a UPOV member, along with the European Union, China, Japan, the United States and several other countries (eighty in total).
[1] Plant Breeders’ Rights Act S.C. 1990, c. 20.
This post is for general information purposes only and is not legal advice.
For legal advice about new plant varieties, including registration, you can contact Marsha Simone Cadogan.