Plant Breeders’ Rights Act (S.C. 1990, c. 20)

Act current to 2017-11-20 and last amended on 2015-02-27. Previous Versions

Her Majesty

Marginal note:Act binds Crown

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

Conditions for Protection

Marginal note:Eligible plant varieties
  •  (1) Plant breeder’s rights may not be granted except in respect of a plant variety that belongs to a prescribed category and meets all of the conditions set out in subsection (2).

  • Marginal note:Conditions

    (2) Plant breeder’s rights may be granted in respect of a plant variety if it

    • (a) is a new variety;

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

    • (c) is stable in its essential characteristics in that after repeated propagation or, if the applicant has defined a particular cycle of propagation, at the end of each cycle it remains true to its description; and

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

  • Marginal note:New variety

    (3) A plant variety is a new variety if the propagating or harvested material of that variety has not been sold by, or with the concurrence of, the breeder of that variety or the breeder’s legal representative

    • (a) in Canada, before

      • (i) the prescribed period preceding the filing date of the application for the grant of plant breeder’s rights, in the case of a variety belonging to a recently prescribed category, and

      • (ii) the period of one year before the filing date of the application for the grant of plant breeder’s rights, in the case of any other variety; and

    • (b) outside Canada, before

      • (i) the period of six years before the filing date of the application for the grant of plant breeder’s rights, in the case of a tree or vine, and

      • (ii) the period of four years before the filing date of the application for the grant of plant breeder’s rights, in any other case.

  • Definition of sufficiently homogeneous variety

    (4) For the purposes of paragraph (2)(d), sufficiently homogeneous variety means a variety for which, in the event of its sexual reproduction or vegetative propagation in substantial quantity, any variations in characteristics of the plants so reproduced or propagated are predictable, capable of being described and commercially acceptable.

  • Marginal note:Regulations

    (5) The Governor in Council may make regulations prescribing classes of sales that are not to be considered sales for the purposes of subsection (3).

  • 1990, c. 20, s. 4;
  • 2015, c. 2, s. 3.

Plant Breeder’s Rights

Marginal note:Nature of plant breeder’s rights
  •  (1) Subject to the other provisions of this Act and the regulations, the holder of the plant breeder’s rights respecting a plant variety has the exclusive right

    • (a) to produce and reproduce propagating material of the variety;

    • (b) to condition propagating material of the variety for the purposes of propagating the variety;

    • (c) to sell propagating material of the variety;

    • (d) to export or import propagating material of the variety;

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

    • (f) in the case of a variety to which ornamental plants belong, if those plants are normally marketed for purposes other than propagation, to use any such plants or parts of those plants as propagating material for the production of ornamental plants or cut flowers;

    • (g) to stock propagating material of the variety for the purpose of doing any act described in any of paragraphs (a) to (f); and

    • (h) to authorize, conditionally or unconditionally, the doing of any act described in any of paragraphs (a) to (g).

  • Marginal note:Royalty

    (2) Without prejudice to any rights or privileges of the Crown, an authorization conferred under paragraph 1(h) may be subject to a condition to pay royalty to the holder of the plant breeder’s rights whether or not the holder is Her Majesty in right of Canada or a province.

  • 1990, c. 20, s. 5;
  • 2015, c. 2, s. 5.
Marginal note:Rights respecting harvested materials

 Subject to the other provisions of this Act and the regulations, the holder of the plant breeder’s rights respecting a plant variety has the exclusive right to do any act described in any of paragraphs 5(1)(a) to (h) in respect of any harvested material, including whole plants or parts of plants, that is obtained through the unauthorized use of propagating material of the plant variety, unless the holder had reasonable opportunity to exercise his or her rights under section 5 in relation to that propagating material and failed to do so before claiming rights under this section.

  • 2015, c. 2, s. 5.
Marginal note:Rights respecting certain other varieties
  •  (1) Subject to the other provisions of this Act and the regulations, the holder of the plant breeder’s rights respecting a plant variety has the exclusive right to do any act described in any of paragraphs 5(1)(a) to (h) in respect of

    • (a) any other plant variety that is essentially derived from the plant variety if the plant variety is not itself essentially derived from another plant variety;

    • (b) any other plant variety that is not clearly distinguishable from the plant variety; and

    • (c) any other plant variety whose production requires the repeated use of the plant variety.

  • Marginal note:Meaning of essentially derived

    (2) For the purpose of paragraph (1)(a), a plant variety is essentially derived from another plant variety (in this subsection referred to as the “initial variety”) if

    • (a) it is predominantly derived from the initial variety or from a plant variety that is itself predominantly derived from the initial variety and it retains the essential characteristics that result from the genotype or combination of genotypes of the initial variety;

    • (b) it is clearly distinguishable from the initial variety; and

    • (c) it conforms to the initial variety in the expression of the essential characteristics that result from the genotype or combination of genotypes of the initial variety, except for the differences that result from its derivation from the initial variety.

  • 2015, c. 2, s. 5.
Marginal note:Non-application of rights
  •  (1) The rights referred to in sections 5 to 5.2 do not apply to any act done

    • (a) privately and for non-commercial purposes;

    • (b) for experimental purposes; or

    • (c) for the purpose of breeding other plant varieties.

  • Marginal note:Farmers’ privilege

    (2) The rights referred to in paragraphs 5(1)(a) and (b) and — for the purposes of exercising those rights and the right to store — the right referred to in paragraph 5(1)(g) do not apply to harvested material of the plant variety that is grown by a farmer on the farmer’s holdings and used by the farmer on those holdings for the sole purpose of propagation of the plant variety.

  • 2015, c. 2, s. 5.
Marginal note:Non-application of rights
  •  (1) The rights referred to in sections 5 to 5.2 do not apply to any act done in relation to material of a plant variety after the material has been sold in Canada by the holder or with the holder’s consent, unless that act involves

    • (a) the further propagation of the plant variety; or

    • (b) the export of material of the plant variety to a country that does not protect varieties of the plant genus or species to which the exported plant variety belongs if the exported material is not intended for consumption.

  • Definition of material

    (2) For the purpose of subsection (1), material means propagating material and harvested material, including whole plants and parts of plants.

  • 2015, c. 2, s. 5.
 
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