What are Plant Breeders’ Rights?

The Plant Breeders’ Rights (PBR) Act protects new varieties of plants which reproduce both sexually and asexually. A plant breeder with plant breeders’ rights has the exclusive right to sell, produce, reproduce, import and export the propagating material of their variety for up to 25 years for tree or vine varieties (including their rootstocks), and 20 years for all other plant varieties. Plant breeders with PBR may take action against others who exploit their protected variety, without permission; and also prevent an individual or business from using the approved denomination name of their protected variety when the individual or company sells propagating material of another variety of the same genus and/or species.

Who Is Eligible to Apply for PBR?

An applicant of PBR may be (i) the breeder of a new plant variety; (ii) the breeder’s employer; or (iii) the breeder’s legal representative. Under the Act, a legal representative is an individual or a company or an organization which has become the legal owner of a variety by way of an assignment. In addition, the applicant must be a citizen and resident of, or have a registered office in Canada, or be from a International Union for the Protection of New Varieties of Plants (UPOV) member country, agreement country or member country of the World Trade Organization (WTO).

Criteria to Obtain PBR protection

All plant species are eligible for PBR protection, with the exception of algae, fungi and bacteria. To obtain PBR protection, a variety must be new, distinct, uniform and stable.

What makes a variety new?

For PBR applications filed before February 27, 2015, to be considered new, a variety must not have been sold in Canada prior to the filing date of its application. In addition, the variety must not have been sold outside of Canada for more than six years prior to the filing date (for woody plants and their rootstocks), or more than four years prior to the filing date (for all other varieties excluding woody plants and its rootstocks).

For PBR applications filed on or after February 27, 2015, to be considered new, a variety must not have been sold in Canada for more than a year prior to the filing date of its application. In addition, the variety must not be sold outside of Canada for more than six years (for trees and vines, including their rootstocks), or more than four years (all other varieties not including trees, vines, and their rootstocks).

What makes a variety distinct?

A variety is distinct if it is measurably different from varieties of common knowledge that exist at the filing date of a PBR application. Varieties of common knowledge include varieties cultivated, commercially exploited, and publicly disclosed in a publication.

What makes for a uniform variety?

The relevant characteristics of a variety must be sufficiently uniform. However, some variation due to particular features of its propagation is permissible, provided the variation is predictable, describable by a breeder and commercially acceptable.

What makes for a stable variety?

The essential characteristics of a variety must remain the same over successive generations for the variety to be considered stable.

PBR application requirements

A PBR application must include the following:

1. The Applicant’s name, which, if the PBR is granted, will appear on the PBR grant of rights certificate;
2. A proposed variety name (i.e., denomination name). The proposed name must not be a trademark. For additional information, please consult the Variety Naming Guidelines;
3. A description of the origin and breeding history of the variety. Information should include, where relevant, (a) the pedigree or genealogy such as parental varieties, lines, and clones; (b) the breeding techniques; (c) selection methods; and (d) the location of breeding;
4. A statement of uniformity and stability. The statement may include a description and frequency of any off-types, variants or mutations;
5. A statement of distinctness. The statement should include a brief summary of the distinctions between the applicant’s variety and varieties of common knowledge (i.e., reference varieties) at the filing date of the application. For more information on reference varieties, please consult the Guidelines for Conducting Plant Breeders' Rights Comparative Tests and Trials.;
6. A statement on the address at which and the method by which the variety will be maintained. Applicants should explain how and where the variety will be maintained for the duration of the PBR; and
7. The requisite fee (CAD $260.09 in 2023).

Additionally, a PBR application may include the following:

1. Agent Information, if any – All foreign applicants must appoint an agent, who is a Canadian resident, to file a PBR application. Canadian applicants are not required to appoint an agent, but may choose to do so;
2. Priority information, where applicable – PBR applicants who file in Canada may claim priority if they file within 12 months of the filing date of a prior application filed in a UPOV member country or WTO member country

PBR abroad and priority claims

In 2015, revisions were made to the Plant Breeders’ Rights Act, aligning it with the 1991 Convention of the International Union for the Protection of New Varieties of Plants. Canada’s membership in UPOV allows Canadian plant breeders to protect their varieties in other member countries and enable Canadian producers greater access to protected foreign varieties. Note, however, that PBR is jurisdiction specific, that is, a holder of a PBR only has valid rights in Canada. However, an applicant who files for a PBR in Canada may claim priority for a PBR application filed in another member country.

PBR application examination process

Once submitted, the applicant will be required to request for examination of their PBR application and pay the requisite fee of CAD$780.27 (in 2023). The Plant Breeders’ Rights Office (PBRO) examines PBR applications to determine if the applicant’s variety meets novelty, distinctness, uniformity and stability requirements. A site examination and field trials will be required as part of the examination process.

Upon completion of the site examination and field trials, the PBRO will publish the PBR application information in the Plant Varieties Journal (PVJ). Any person may file an objection if they believe a PBR applicant should not be granted the right or find the proposed variety denomination unacceptable.

Generally, objections may be filed at any time during the application process. If, however, the variety description and comparative photographs are published, objections must be filed within six months of the publication date. If no objections are raised at the end of the six months objection period, the applicant will receive the grant of rights and will be notified by the PBRO.

Upon completion, the applicant will be required to submit a confirmation form and the requisite fee of CAD$520.18 (in 2023) to receive the PBR certificate.

Maintaining PBR

Once granted PBR, a PBR holder must pay annual renewal fees of CAD $312.10 (in 2023) and maintain the propagating material of the variety.

Conclusion

If you would like our assistance securing PBR for your plant variety, contact us now for a complimentary and confidential initial telephone appointment.