Plant breeding has produced new plant varieties with improved or novel characteristics, bringing many benefits in the areas of agriculture and horticulture. Plant breeding can produce new plant varieties sexually by means of pollination or asexually without pollination using, for example, cuttings of a plant to make the necessary crosses. Recombinant DNA technology and genetic engineering may also be used to produce new plant varieties.
A new plant variety may be of great commercial value to the plant breeder. In many cases, developing a new plant variety can be a costly and time-consuming process. Plant breeders can use Canada’s Plant Breeders’ Rights Act to protect their newly developed plant varieties including both sexually and asexually reproduced plant species. However, algae, bacteria and fungi (e.g., mushrooms) are not eligible for protection under this Act.
Unlike other forms of intellectual property (such as patents, industrial designs, and trademarks) which are administered by the Canadian Intellectual Property Office (CIPO), plant breeders’ rights are administered by a separate government agency known as the Plant Breeders’ Rights Office (PBRO) which is part of the Canadian Food Inspection Agency. The PBRO examines applications for new plant varieties to determine whether the applicants are entitled to receive a grant of rights. The PBRO also publishes the Plant Varieties Journal.
In order to obtain plant breeders’ rights protection, a new plant variety must exhibit distinctiveness, uniformity, and stability. Distinctiveness means that “the variety, by reason of one or more identifiable characteristics, is clearly distinguishable from all varieties the existence of which is a matter of common knowledge at the effective date of application”. Uniformity means that the variety must be sufficiently uniform in its relevant characteristics, subject to the variation that may be expected from the particular features of its propagation. Stability means that the variety must be stable in its essential characteristics after repeated reproduction or propagation.
When filing an application for plant breeders’ rights for a new plant variety, the applicant must submit a statement of uniformity and stability, a distinctiveness statement, and describe the origin and breeding history of the variety as well as methods for maintaining the variety.
An application may claim priority based on a previously filed foreign application in a UPOV (Union for the Protection of New Varieties of Plants) member country within one year from the filing date of the first foreign application. For example, an application for plant breeders’ rights in Canada can claim priority based on a previously filed corresponding United States Plant Patent application provided that the Canadian application is filed within 12 months after the United States application.
To qualify for plant breeders’ rights, the variety must not have been sold in Canada prior to the priority date of the application for plant breeders’ rights. It is recommended that an application for plant breeders’ right be filed before any sale of the new plant variety commences in Canada. The sale of the variety outside of Canada prior to the application filing date could also be a bar to obtaining plant breeders’ rights in Canada. Under the current regulations, for sales outside of Canada, the sale cannot have been made more than six years prior to the filing date of the application for a new variety of woody plants, including their rootstocks, or more than four years prior to the filing date of the application for a new variety of any other categories.
When filing an application for plant breeders’ rights, the applicant must propose a variety name as “denomination” for the new variety. The denomination cannot be registered as a trademark in Canada since it must be freely available for use by other parties, even after the rights for the variety have expired.
Every application for plant breeders’ rights is published in the Plant Varieties Journal which is released quarterly and is accessible through the PBRO website. Any person who considers that an application should be refused a grant of rights may file an objection, on payment of a prescribed fee. Objections may be filed at any time during the application process. However, once the variety description and comparative photographs are published, any objection must be filed within 6 months of the publication.
To proceed with the examination, the applicant must file a request for site examination with the PBRO. The examination determines whether the candidate variety meets the requirements for distinctness, uniformity and stability. The variety should be planted at a trial site in Canada to allow an examiner from the PBRO to visit the trial site to conduct a site examination to verify that the variety is distinct and uniform. This requires at least one growing cycle of the plant in Canada. At the time of the trial site visit, the plant must be of a suitable maturity to be exhibiting characteristics representative of the variety. Otherwise, further growing cycles may be required.
After examination has been completed and all of the requirements for plant breeders’ rights have been met, a certificate of plant breeders’ right is issued. The holder of the plant breeders’ right has the exclusive right to sell, and produce for the purpose of selling, propagating material of the plant variety for up to 18 years, provided that the annual renewal fees are paid.