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INTELLECTUAL PROPERTY RIGHTS

NATIONAL LEGISLATION - CANADA

Plant Breeders' Rights Act

(Continued)

RECORDS

Index 

62. The Commissioner may prepare an index of names, together with descriptions comprising particulars of distinguishing identifiable characteristics, of such plant varieties in each of the prescribed categories as are ascertainable by the Commissioner to exist as a matter of fact within common knowledge.

Register 

63. The Commissioner shall keep a register of plant breeders' rights and, subject to the payment of any fee or charge required by or under this Act to be paid in the case of any entry in the register, the Commissioner shall enter in it 

(a) the prescribed category to which each new variety belongs;

(b) the denomination of the variety, and any change thereof approved pursuant to subsection 14(5);

(c) the full name and address of the breeder of that variety;

(d) the name and address of the person whom the Commissioner is satisfied, in the manner provided by or under this Act, ought to be registered as the holder of the plant breeder's rights respecting that variety;

(e) the date of the grant of plant breeder's rights respecting that variety;

(f) the date of, and the reason for, any termination or invalidation of plant breeder's rights;

(g) if plant breeder's rights are the subject of a compulsory licence under section 32, a statement to that effect;

(h) the prescribed particulars of each application for the grant of plant breeder's rights and of any abandonment or withdrawal of the application and, where a protective direction is granted, a statement to that effect; and

(i) the prescribed particulars, subject to the provisions of this Act and the regulations, that are considered by the Commissioner to be appropriate for entry in the register.

Evidence of registered matters 

64. (1) The register is evidence of all matters entered in it as directed or authorized by this Act.

Certified copy or extract 

(2) A document purporting to be a copy of any entry in, or an extract of any contents of, the register and to be certified by the Commissioner to be a true copy or extract is evidence of the entry or contents without further proof or production of the register.

Certificate of Commissioner 

65. A certificate purporting to be made by the Commissioner to the effect that an entry has or has not been made in the register or that any other thing authorized by or under this Act to be done in the course of the administration of this Act has or has not been done is evidence of the matters specified in that certificate.

Rectification of errors 

66. (1) Subject to subsection (2), the Commissioner may, on such terms, if any, as the Commissioner deems proper, authorize

(a) the correction of any clerical error or error in translation appearing in a certificate of registration issued pursuant to paragraph 27(3)(b), in an application for plant breeder's rights, in any document filed for the purposes of such an application or in the register or index;

(b) the amendment of any document that belongs to the Plant Breeders' Rights Office and in respect of which no express provision for its amendment is made in this Act; and

(c) the condonation or correction of any procedural irregularity in any proceedings subject to the authority of the Commissioner.

When rectification permissible 

(2) Any power conferred by subsection (1) may, of the Commissioner's own motion or on request in writing, be exercised if, but only if, that exercise of the power is in the interests of the due administration of this Act and is not prejudicial to the interests of justice.

Opportunities for representations by interested persons 

(3) The Commissioner, if intending to exercise any power pursuant to subsection (1), shall give notice of the intention to each person appearing to the Commissioner to have an interest in the matter and shall not carry out the intention without first giving that person a reasonable opportunity to make representations with respect thereto.

Preservation of documents 

67. (1) An application for the grant of plant breeder's rights and other documents filed with the Commissioner in connection with any such rights shall, subject to subsection (3), be preserved for the prescribed periods.

Inspection by public, copies and certificates 

(2) Subject to subsection (4),

(a) the register,

(b) the index, and

(c) any documents referred to in subsection (1) that are prescribed for the purposes of this subsection or that may properly, in the opinion of the Commissioner, be open for inspection by the public,

shall be open for inspection, on payment of the prescribed fees, during business hours at the Plant Breeders' Rights Office and the Commissioner shall, on request and on payment of the prescribed fee, furnish any person with a copy of, or certificate with regard to, an entry in the register or index or with a copy of any such document.

Withdrawn application papers to be returned 

(3) Where an application for plant breeder's rights has been withdrawn, the Commissioner shall return to the applicant at the address indicated in the application all the papers and other material submitted in connection with the application but, to any extent to which it is impracticable for the Commissioner to do so, and on the expiration of the prescribed period for so doing, the Commissioner shall destroy the material.

Restriction on publication 

(4) An application for plant breeder's rights and any document or instrument that accompanies it shall not, except with the consent of the applicant or by order of a court for the purposes of proceedings before it, be published by the Commissioner or be open to public inspection at any time before particulars of the application are published in the Canada Gazette pursuant to section 70.

Service of notices, etc. 

68. (1) A notice or other document required to be given or transmitted to any person pursuant to this Act may be given or transmitted

(a) by delivering it to the person;

(b) by sending it by registered mail addressed to the person at any place pursuant to notice thereof given by the person or, if no such notice is given, at the person's usual or latest known address in Canada; or

(c) in any other manner prescribed.

Deemed delivery 

(2) Where any notice or other document is sent by registered mail pursuant to subsection (1), it shall, in the absence of evidence to the contrary, be deemed to be given or transmitted at the time at which the registered letter containing it would be delivered in the ordinary course of post.

Defect not to invalidate notices 

69. A defect in a notice given pursuant to this Act, if the notice is such as to intelligibly and substantially effect the required notification, shall not render unlawful any administrative action executed in respect of the matter to which the notice relates and shall not be a ground for exception to any legal proceeding that may be taken in respect of that matter.

PUBLICATION

Matters to be published 

70. (1) The Commissioner shall cause to be published in the Canada Gazette such particulars of the following as are prescribed:

(a) every application that is not rejected pursuant to section 17;

(b) every request included pursuant to subsection 9(1) in an application that is not rejected pursuant to section 17;

(c) every application for a protective direction;

(d) every grant or withdrawal of a protective direction;

(e) every grant or refusal to grant plant breeder's rights;

(f) every assignment of plant breeder's rights of which the Commissioner is informed;

(g) every application for a compulsory licence;

(h) every grant or refusal to grant a compulsory licence and every thing done under subsection 32(4) with respect to a compulsory licence; and

(i) every surrender of plant breeder's rights.

Notice to Department of Industry 

(2) The Commissioner shall, on causing particulars of a request referred to in paragraph (1)(b) to be published, give notice of the request to the Department of Industry.

Matters to be published 

(3) In addition to the matters referred to in subsection (1), the Commissioner shall cause to be published in the Canada Gazette

(a) such other matters as the Commissioner considers appropriate for public information; and

(b) a notice of every refusal to grant a protective direction and of every annulment under section 34 or revocation under section 35.

1990, c. 20, s. 70; 1995, c. 1, s. 53.

Provision for publication of Plant Varieties Journal 

71. (1) Where the volume of matters to be published in the Canada Gazette pursuant to section 70 is such as to warrant their inclusion wholly or partly in a separate journal, the Commissioner may cause to be published periodically a journal, to be called the Plant Varieties Journal, containing such of those matters as the Commissioner, subject to any regulations made pursuant to paragraph 75(1)(g), considers expedient.

Notice of intention to publish Journal 

(2) The Commissioner shall, by publication in the Canada Gazette, at least twenty-eight days before commencing the issue of the Plant Varieties Journal, give notice of intention to do so.

Cessation of publication of Journal 

(3) If at any time the volume of matters for the publication of which the Plant Varieties Journal is available ceases to be such as described in subsection (1), the Commissioner may cause the issuing of the Plant Varieties Journal to cease but, at least twenty-eight days before doing so, the Commissioner shall, by publication in that Journal, give notice of intention to do so.

Publication in Journal to be deemed publication in Canada Gazette 

(4) For the purposes of this Act other than of subsections (2) and 75(2), publication in the Plant Varieties Journal pursuant to this Act shall be deemed to be publication in the Canada Gazette and references in this Act to the Canada Gazette shall be construed accordingly.

Ignorance no defence in the event of publication 

72. (1) Where in any civil, criminal or other proceedings a person's knowledge or notice, at any time, of any matter is relevant for the purpose of determining any question whether, pursuant to this Act, liability has been incurred, any right has been acquired or any thing has been duly done, the person shall, for that purpose, be deemed to have had the relevant knowledge or
notice at that time if, prior thereto, the matter or notice thereof is published in the Canada Gazette.

Knowledge or notice, otherwise attributable, unaffected 

(2) Nothing in subsection (1) prevents any question referred to therein from being determined on the ground that the person had the relevant knowledge or notice, if lawfully attributable to the person, apart from that subsection.

ADVISORY COMMITTEE

Constitution 

73. (1) The Minister shall constitute an advisory committee on any terms and conditions determined by the Minister.

Composition 

(2) The advisory committee shall be composed of persons appointed by the Minister from among representatives of organizations of breeders of plant varieties, dealers in seeds, growers of seeds, farmers, horticulturists and of any other interested persons considered appropriate by the Minister.

Function 

(3) The function of the advisory committee is to assist the Commissioner in the application of this Act, including

(a) the manner in which the Act is to be applied in respect of each category;

(b) the requirements applicable in respect of each category, including those requirements relating to licensing; and

(c) the interpretation of the expressions "reasonable prices", "widely distributed" and "reasonable remuneration" for the purposes of section 32.

Remuneration 

(4) No terms or conditions determined under subsection (1) shall provide for any remuneration to be payable to any of the persons acting on the advisory committee, but those persons may be paid any reasonable travel and living expenses incurred by them when engaged on the business of the committee while absent from their ordinary places of residence.

Committee's advice not binding 

74. Nothing in this Act or the regulations shall be construed to impose any obligation to conform to the advice of the advisory committee.

REGULATIONS

Regulations 

75. (1) The Governor in Council may make regulations for carrying out the purposes and provisions of this Act and, without limiting the generality of the foregoing, may make regulations

(a) determining the nature of any charges that a person may be required to pay in respect of any services provided in the execution of any functions by or under the authority of the Commissioner;

(b) limiting, extending or providing for the extension, whether before or after the expiration, of the period for doing anything pursuant to this Act;

(c) defining the meanings of the words and expressions "commercially acceptable", "description", "designation", "identifiable characteristics", "recently prescribed category", "representations", "reasonably priced" and "widely distributed" for the purposes of this Act;

(d) requiring

(i) the publication in the Trade Marks Journal of prescribed particulars respecting proposals, approvals and changes of denominations pursuant to section 14, and

(ii) notwithstanding anything in subsection 73(1), the advisory committee's advice as a prerequisite for the execution of any functions by the Minister or the Commissioner;

(e) establishing principles to be observed by the Commissioner in disposing of applications for compulsory licences and, particularly, in complying with subsection 32(2);

(f) giving effect to the terms of

(i) any convention with a view to the fulfilment of which any country is prescribed as a country of the Union, and

(ii) any agreement with a view to the fulfilment of which any country is prescribed as an agreement country,

and, notwithstanding anything in this Act, qualifying or curtailing any rights, protection or other benefits under this Act to any extent conducive to reciprocity between Canada and any such country;

(g) distinguishing the kind of matters to be published in any of the ways contemplated by subsection 71(1);

(h) assigning powers or duties to persons employed by the Canadian Food Inspection Agency or designated by the President of the Agency to administer or enforce this Act or appointed or engaged pursuant to subsection 59(1);

(i) providing for the organization, including fixing the times of operation and closure, of the Plant Breeders' Rights Office, panels constituted under paragraph 59(1)(b) and the business thereof;

(j) specifying or defining methods, procedural requirements or conditions that shall be observed or may, at the discretion of the Commissioner, be adopted or imposed for the purpose or in the course of instituting, proceeding on, dealing with or disposing of any applications, objections, requests, representations, examinations, tests, trials or matters involving investigation or
requiring determination by or under the authority of the Commissioner;

(k) providing

(i) in relation to any category of plant, for any of the grants of plant breeder's rights respecting new varieties of that category to be made, at the applicant's request, on terms allowing an exemption, revocable by the Commissioner, from compulsory licensing under section 32 or from the requirements of any conditions described in section 29 or from both,

(ii) for the inclusion, in the terms of a grant referred to in section 29 or subparagraph (i), of any terms in, on or subject to which any conditions described in that section shall be imposed or complied with or any exemption may, pursuant to that subparagraph, be allowed or revoked, and

(iii) for paragraph 35(1)(e) to apply to any obligations under any of those conditions as that paragraph applies to an obligation under the terms of a compulsory licence, and for the extended application of subsection 35(1) and sections 36 and 37 accordingly;

(l) prescribing

(i) matters to be entered in, and the forms of, the register, the index, applications for plant breeders' rights and any other record, instrument or document to be kept, made or used pursuant to or for the purposes of this Act,

(ii) all or any of the means by which or the factors or criteria by reference to which, whether they are found in Canada or elsewhere, common knowledge or the absence thereof may or shall be or ought not to be regarded as established for the purposes of paragraph 4(2)(a) or section 62,

(iii) the fees payable by a person in respect of any facilities afforded by the Plant Breeders' Rights Office,

(iv) the time at or within which and the manner in which any charge, the nature of which is determined under paragraph (a), or any prescribed fee shall be paid,

(v) the circumstances in which any charge or fee referred to in subparagraph (iv) may or shall be refunded in whole or in part, and

(vi) matters in respect of which the Commissioner is to be satisfied before an exemption referred to in subparagraph (k)(i) may be revoked;

(m) respecting the procedure for review of cases involving decisions given by the Commissioner pursuant to any provision of this Act; and

(n) prescribing any matter required or authorized by this Act to be prescribed.

Publication of proposed regulations 

(2) Subject to subsection (3), a copy of each regulation that the Governor in Council proposes to make pursuant to this Act shall be published in the Canada Gazette and a reasonable opportunity shall be given to interested persons to make representations with respect thereto.

Exemptions 

(3) Subsection (2) does not apply in respect of a proposed regulation that

(a) has been published pursuant to that subsection, whether or not it has been amended as a result of representations made pursuant to that subsection; or

(b) makes no material substantive change in an existing regulation.

1990, c. 20, s. 75; 1997, c. 6, s. 80.

SEEDS ACT

Seeds Act unaffected 

76. (1) Nothing provided or granted by or under this Act shall be construed as conferring authority for

(a) any seed to be sold, imported, exported or advertised, or

(b) any name, mark or label to be applied in connection with any seed,

contrary to the Seeds Act or any regulations thereunder.

Definition of "seed" 

(2) In subsection (1), "seed" has the meaning assigned to that expression by section 2 of the Seeds Act.

REVIEW OF ACT

Report 

77. (1) As soon as practicable after the expiration of the period of ten years beginning on the day of the coming into force of this Act, the Minister shall prepare a report with respect to the administration of this Act during the period and shall cause a copy of the report to be laid before each House of Parliament on any of the first fifteen days on which that House is sitting after it is completed.

Contents of report 

(2) The report prepared pursuant to subsection (1) shall indicate whether the operation of this Act

(a) results in

(i) the stimulation of investment in businesses involving the breeding of plant varieties in respect of which protection afforded by plant breeders' rights is applicable,

(ii) any improvement in facilities to obtain foreign varieties of plants in the interests of agriculture in Canada,

(iii) protection abroad, for commercial purposes, of Canadian plant varieties,

(iv) improvement of plant varieties to the public benefit, and particularly, to the benefit of farmers and nurserymen, and

(v) any other public advantage,

(b) has some but not all of the results described in paragraph (a),

(c) has all or any of those results but is, in any respect, not in the public interest, or

(d) is, in the total absence of those results, not in the public interest,

as the case may be, and particulars of anything so indicated shall be furnished in the report.

Annual report 

78. The Minister shall each year prepare a report with respect to the administration of this Act during the preceding calendar year and shall lay it before Parliament on any of the first fifteen days that either House of Parliament is sitting after he completes it.

CONSEQUENTIAL AMENDMENTS

79. to 81. [Amendments]

COMING INTO FORCE

Coming into force 

* 82. This Act comes into force on a day to be fixed by order of the Governor in Council.

RELATED PROVISION 

1997, c. 6, s. 76(2):

Transitional

(2) For greater certainty, the two year limitation period provided for in subsection 53(7) of the Act, as amended by subsection (1), only applies in respect of offences committed after the coming into force of that subsection.

 

* [Note: Act in force August 1, 1990, see SI/90-99.]


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