INTELLECTUAL PROPERTY RIGHTS

NATIONAL LEGISLATION - CANADA

Plant Breeders' Rights Act

1990, c. 20

[P-14.6]

An Act respecting plant breeders' rights

[Assented to 19th June, 1990]

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

SHORT TITLE

Short title

1. This Act may be cited as the Plant Breeders' Rights Act.

INTERPRETATION

Definitions

2. (1) In this Act,

"advertise" «publicité» 

"advertise", in relation to a plant variety, means to distribute to members of the public or to bring to their notice, in any manner whatever, any written, illustrated, visual or other descriptive material, oral statement, communication, representation or reference with the intention of promoting the sale of any propagating material of the plant variety, encouraging the use thereof or drawing attention to the nature, properties, advantages or uses thereof or to the manner in which or the conditions on which it may be purchased or otherwise acquired;

"advisory committee" «comité consultatif» 

"advisory committee" means such advisory committee as may be constituted pursuant to subsection 73(1);

"agent" «mandataire» 

"agent", in relation to an applicant or a holder of plant breeder's rights, means a person who is duly authorized by the applicant or holder to act, for the purposes of this Act, on behalf of the applicant or holder and to whom as a person so authorized recognition is, consistent with any requirements prescribed therefor, accorded by the Commissioner; 

"agreement country" «pays signataire» 

"agreement country" means

(a) any country,

(b) any colony, protectorate or territory subject to the authority of another country or under its suzerainty, or

(c) any territory over which another country exercises a mandate or trusteeship,

that is prescribed as an agreement country with a view to the fulfilment of a bilateral agreement concerning the rights of plant breeders made between Canada and that country;

"applicant" «requérant» 

"applicant" means a person by or on behalf of whom an application for the grant of plant breeder's rights is made pursuant to section 7;

"breeder" «obtenteur» 

"breeder", in respect of a plant variety, means

(a) where any person acting within the scope of the person's duties as an officer, servant or employee of another person originates or discovers the plant variety, that other person, and

(b) where any person not acting as described in paragraph (a) originates or discovers the plant variety, that person;

"category" «catégorie» 

"category" means a species or any class within a species;

"Commissioner" « directeur » 

"Commissioner" means the Commissioner of Plant Breeders' Rights designated pursuant to subsection 56(2) and, except in section 56, includes any person acting under a written authorization given pursuant to section 58;

"country of the Union" «État de l'Union» 

"country of the Union" means

(a) any country,

(b) any colony, protectorate or territory subject to the authority of another country or under its suzerainty, or

(c) any territory over which another country exercises a mandate or trusteeship,

that is prescribed as a country of the Union with a view to the fulfilment of a convention constituting a Union for protecting new varieties of plants that includes Canada among its members;

"holder" «titulaire» 

"holder", in relation to plant breeder's rights, means the person whom the register indicates, with respect to a plant variety, is entitled to the plant breeder's rights respecting that variety by a grant made under section 27 or is an assignee of, or other successor in title to, the rights granted under that section in respect of that variety;

"index" «répertoire» 

"index" means the index prepared pursuant to section 62;

"infringement" «violation» 

"infringement", in relation to plant breeder's rights, means the doing, without authority under this Act, of anything that the holder of those rights has the exclusive right to do as provided in subsection 5(1);

"legal representative" «représentant légal» 

"legal representative", in respect of a breeder of a plant variety, includes the breeder's executor or administrator and any assignee of, or other successor in title to, the rights of the breeder in respect of the plant variety;

"Minister" «ministre» 

"Minister" means the Minister of Agriculture and Agri-Food;

"new variety" «obtention végétale» 

"new variety" means a plant variety that complies with the requirements of section 4;

"plant breeder's rights" «certificat d'obtention» 

"plant breeder's rights" means the rights referred to in subsection 5(1);

"plant variety" «variété végétale» 

"plant variety" means any cultivar, clone, breeding line or hybrid of a prescribed category of plant that can be cultivated;

"prescribed" Version anglaise seulement

"prescribed" means prescribed by regulation;

"propagating material" «matériel de multiplication» 

"propagating material" means any reproductive or vegetative material for propagation, whether by sexual or other means, of a plant variety, and includes seeds for sowing and any whole plant or part thereof that may be used for propagation;

"protective direction" «certificat temporaire» 

"protective direction" means a protective direction under section 19;

"register" «registre» 

"register" means the register kept pursuant to section 63;

"sell" «vente» 

"sell" includes agree to sell, or offer, advertise, keep, expose, transmit, send, convey or deliver for sale, or agree to exchange or to dispose of to any person in any manner for a consideration.

Prescribing various countries of the Union or agreement countries

(2) Notwithstanding anything in this Act, a country of the Union or an agreement country may be prescribed for all or any of the provisions of this Act or the regulations in so far as those provisions have reference, express or implied, to such a country.

1990, c. 20, s. 2; 1994, c. 38, s. 25; 1997, c. 6, s. 75.

HER MAJESTY

Act binds Crown

3. This Act is binding on Her Majesty in right of Canada or a province.

APPLICATION

Varieties to which Act applies

4. (1) The varieties of plants in respect of which this Act provides for the granting of plant breeders' rights are restricted to varieties belonging to prescribed categories and found, pursuant to subsection 27(1), to be new varieties.

New varieties

(2) A plant variety is a new variety if it

(a) is, by reason of one or more identifiable characteristics, clearly distinguishable from all varieties the existence of which is a matter of common knowledge at the effective date of application for the grant of the plant breeder's rights respecting that plant variety;

(b) is stable in its essential characteristics in that after repeated reproduction or propagation or, where the applicant has defined a particular cycle of reproduction or multiplication, at the end of each cycle, remains true to its description; and

(c) is, having regard to the particular features of its sexual reproduction or vegetative propagation, a sufficiently homogeneous variety.

Definition of "sufficiently homogeneous variety"

(3) In paragraph (2)(c), "sufficiently homogeneous variety" means such a variety that, in the event of its sexual reproduction or vegetative propagation in substantial quantity, any variations in characteristics of plants so reproduced or propagated are predictable, capable of being described and commercially acceptable.

PLANT BREEDER'S RIGHTS

Nature of plant breeder's rights

5. (1) Subject to this Act, the holder of the plant breeder's rights respecting a plant variety has the exclusive right

(a) to sell, and produce in Canada for the purpose of selling, propagating material, as such, of the plant variety;

(b) to make repeated use of propagating material of the plant variety in order to produce commercially another plant variety if the repetition is necessary for that purpose;

(c) where it is a plant variety to which ornamental plants or parts thereof normally marketed for purposes other than propagation belong, to use any such plants or parts commercially as propagating material in the production of ornamental plants or cut flowers; and

(d) to authorize, conditionally or unconditionally, the doing of an act described in paragraphs (a) to (c).

Exemption

(2) Paragraph (1)(a) does not apply in respect of the sale of propagating material that is not in Canada when it is sold but, if any such propagating material the sale of which to any person is exempted from that paragraph by this subsection is used as propagating material in Canada by that person, an infringement of the exclusive right conferred by virtue of that paragraph is
constituted by the purchase and subsequent use of the propagating material by that person, who shall be liable to be proceeded against in respect of that infringement.

Implications

(3) A sale of propagating material in the exercise of any exclusive right conferred by subsection (1) does not imply that the seller authorizes the purchaser to produce, for the purpose of selling, propagating material as such but, subject to any terms or conditions imposed by the seller, the sale implies that the seller authorizes the purchaser to sell anything sold, in that exercise of the exclusive right, to the purchaser.

Royalty

(4) Without limiting the generality of paragraph (1)(d) and without prejudice to any rights or privileges of the Crown, where authority is conferred subject to conditions pursuant to that paragraph, whether or not the holder of the plant breeder's rights is Her Majesty in right of Canada or a province, the conditions may include a requirement to pay royalty to the holder.

Term of plant breeder's rights

6. (1) The term of the grant of plant breeder's rights shall, subject to earlier termination pursuant to this Act, be a period of eighteen years, commencing on the day the certificate of registration is issued under paragraph 27(3)(b).

Payment of annual fee

(2) A holder of plant breeder's rights shall, during the term of the grant of those rights, pay to the Commissioner the prescribed annual fee in respect of those rights.

APPLICATIONS FOR PLANT BREEDER'S RIGHTS

Entitlement to apply for plant breeder's rights

7. (1) Subject to section 8, a breeder of a new variety or a legal representative of the breeder may make an application to the Commissioner for the grant of plant breeder's rights respecting that variety if

(a) in the case of a new variety of a recently prescribed category, neither the breeder nor a legal representative of the breeder sold or concurred in the sale of that variety in Canada before the commencement of such period prior to the date of receipt, by the Commissioner, of the application as is prescribed for the purposes of this paragraph;

(b) in any other case, neither the breeder nor a legal representative of the breeder sold or concurred in the sale of that variety in Canada before the effective date of the application; and

(c) subject to any prescribed exemptions, neither the breeder nor a legal representative of the breeder sold or concurred in the sale of that variety outside Canada before the commencement of such period prior to the date described in paragraph (a) as is prescribed for the purposes of this paragraph.

Application where breeder's participation unobtainable for joint application

(2) Where

(a) a new variety is bred by two or more breeders otherwise than independently of each other, and

(b) either or any of the persons entitled to make an application for the grant of the plant breeder's rights respecting that variety refuses to do so or information of the whereabouts of either or any of those persons cannot be obtained through diligent inquiry on the part of the remainder of them,

the remainder of those persons may make an application for that grant.

Required citizenship, residence or location of registered office

8. A person is only eligible to apply for the grant of plant breeder's rights if the person is a citizen of, or is resident or has a registered office in, Canada or a country of the Union or an agreement country.

How application to be made

9. (1) An application for the grant of any plant breeder's rights must

(a) be made in the prescribed manner;

(b) be accompanied by the prescribed fee;

(c) be supported by the documents and any other material prescribed; and

(d) include any request referred to in subparagraph 75(1)(k)(i) that the applicant makes.

Agent required for non-resident applicant

(2) An applicant who, in the case of an individual, is not resident in Canada or that, in the case of a corporation, does not have its registered office in Canada shall submit the application through an agent resident in Canada.

Priority and dating of application

10. (1) Subject to subsections (2) and 11(1), the effective date of an application is the date on which the application is received by the Commissioner and, in the case of receipt by the Commissioner of two or more applications respecting a new variety the breeders of which bred it independently of each other, priority shall be given to the application first received by the
Commissioner.

Applications of same date

(2) Where the effective dates of applications described in subsection (1) are the same, priority shall be given to the application pertaining to the breeder who was first in a position to apply for the plant breeder's rights respecting the new variety or who would have been first in the position to do so if the provision made by or under this Act for so doing had always been in force.

Priority based on preceding application in country of Union or agreement country

11. (1) Where an application made under section 7 is preceded by an application made, in the appropriate manner, in a country of the Union or an agreement country, for protection pursuant to the breeding of the same new variety by the same breeder as in the case of the application made under section 7, the date that is the effective date of the application made in that country
shall be deemed to be the effective date of the application made under section 7 and the applicant is entitled to priority in Canada accordingly, notwithstanding any intervening use, publication or application respecting the new variety, if 

(a) the application is made under section 7 in the prescribed form within twelve months after the date on which the application was made in that country; and

(b) the application made under section 7 includes or is accompanied by a claim respecting the priority and is accompanied by the prescribed fee.

Confirmation of claim to priority

(2) A claim respecting priority based on a preceding application made in a country of the Union or an agreement country shall not be allowed unless, within three months after the date on which the claim is submitted to the Commissioner, it is confirmed by filing with the Commissioner a copy, certified as correct by the appropriate authority in that country and accompanied by an English or French translation of the certified copy, if made in any other language, of each document that constituted the preceding application.

Supporting application given priority

(3) An application given priority under subsection (1) shall be supported by the required material furnished pursuant to this Act and the regulations before the expiration of the prescribed period, not exceeding four years, after the last day of the twelve months within which the application is submitted in accordance with paragraph (1)(a).

Cases of two or more preceding applications

(4) Where an application made under section 7 is preceded by two or more applications made, in the appropriate manner, in different countries of the Union or agreement countries, for protection pursuant to the breeding of the same new variety by the same breeder as in the case of the application made under section 7, reference in subsection (1) to an application made in any such country shall be construed as reference to whichever of those applications was first made.

Priority conditional on residence, etc.

12. (1) No claim referred to in paragraph 11(1)(b) shall be based on any preceding application unless it was made by a person who, at the time of the application, was a citizen of, or a person resident or having a registered office in, Canada or a country of the Union or an agreement country.

When previous application disregarded

(2) For the purposes of subsection 11(1), no account shall be taken of an application that was made in a country outside Canada at a time when the plant variety to which the application relates did not belong to a prescribed category.

Priority established over previous grant

13. Where priority for an application is established pursuant to this Act, the Commissioner shall refuse any application against which the priority is established or, if the priority against it is established after granting on it any plant breeder's rights, the Commissioner shall annul the grant and section 36 and paragraph 70(3)(b) apply, with such modifications as the circumstances
require, in respect of the annulment.

DENOMINATIONS OF NEW VARIETIES

Denomination of new varieties

14. (1) A new variety in respect of which an application for the grant of plant breeder's rights is made shall be designated by means of a denomination proposed by the applicant and approved by the Commissioner.

Rejection of proposed denomination

(2) Where a denomination is proposed pursuant to subsection (1), the Commissioner may, during the pendency of the application referred to in that subsection, reject the proposed denomination, if considered unsuitable for any reasonable cause by the Commissioner, and direct the applicant to submit a suitable denomination instead.

Suitable denomination

(3) A denomination, in order to be suitable pursuant to this section, must conform to the prescribed requirements and must not be such as to be likely to mislead or to cause confusion concerning the characteristics, value or identity of the variety in question or the identity of its breeder.

International uniformity of denomination

(4) A denomination that the Commissioner approves for any new variety in respect of which protection has been granted by, or an application for protection has been submitted to, the appropriate authority in a country of the Union or an agreement country must, subject to subsections (2), (3) and (5), be the same as any denomination with reference to which that protection has been granted or that application submitted.

Change of denomination

(5) A denomination approved by the Commissioner pursuant to this section may be changed with the Commissioner's approval in the prescribed circumstances and manner.

Denomination must be recognizable

(6) Where a trade-mark, trade name or other similar indication is used in association with a denomination approved by the Commissioner pursuant to this section, the denomination must be easily recognizable.

Approved denomination to be used exclusively

15. After the grant of the plant breeder's rights respecting any new variety, every person designating the variety for the purposes of the sale of propagating material thereof by that person, whether before or after the expiration of the term of the grant of those rights, shall only use the denomination approved by the Commissioner pursuant to section 14.

Prior rights not prejudiced

16. Nothing in section 14 or 15 authorizes or requires any person to use, or the Commissioner to approve any person's use of, a denomination to the prejudice of any prior right of another person to the use of any designation.

SUMMARY DISPOSITION OF APPLICATIONS

Rejection of application

17. (1) The Commissioner may reject an application for the grant of plant breeder's rights if any incompatibility with this Act or the regulations appears with regard to the application and, without limiting the generality of the foregoing, the Commissioner may reject an application if it appears

(a) that the variety in respect of which the application is made is not a new variety; or

(b) that the person making the application is not entitled in accordance with section 7 or 8 to do so.

Opportunity for representations before application rejected

(2) The Commissioner shall not reject the application of a person for the grant of plant breeder's rights without first giving the person notice of the objections to it and of the grounds for those objections as well as a reasonable opportunity to make representations with respect thereto.

Amendment of application

18. An applicant may, within the period prescribed for so doing, or with leave given by the Commissioner at the applicant's request after the expiration of that period, add to or alter the denomination proposed by that applicant pursuant to section 14 or the description of the new variety for the purposes of the application.