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

Marginal note:Approved denomination to be used exclusively

15 After the grant of plant breeder’s rights respecting any plant variety, and even after the expiry of the term of the grant of those rights, every person who is designating the variety for the purposes of the sale of propagating material of the variety shall use the denomination approved by the Commissioner.

Marginal note: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.

Marginal note:Direction to change denomination

16.1 If, after the grant of plant breeder’s rights respecting any plant variety, the Commissioner has reasonable grounds to believe that the use of the denomination is unsuitable or that the prior rights of another person are prejudiced by its use, the Commissioner may direct the holder to change the denomination, subject to the Commissioner’s approval of the new denomination.

Summary Disposition of Applications

Marginal note:Rejection of application

• 17 (1) The Commissioner may reject an application for the grant of plant breeder’s rights if the application is not consistent with any provision of this Act or the regulations, including if the plant variety in respect of which the application is made is not a new variety or if the applicant is not entitled to apply under section 7.

• Marginal note: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.

Marginal note: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 expiry of that period, add to or alter the denomination proposed by that applicant under section 14 or the description of the plant variety for the purposes of the application.

Provisional Protection

Marginal note:Applicant’s rights

• 19 (1) Subject to subsection (2), an applicant for the grant of plant breeder’s rights in respect of a plant variety has, as of the filing date of the application, the same rights in respect of the variety that he or she would have under sections 5 to 5.2 if plant breeder’s rights were to be granted.

• Marginal note:When rights in effect

  (2) If the applicant is granted plant breeder’s rights, the applicant is, in respect of the period beginning on the filing date and ending on the date on which the plant breeder’s rights are granted, entitled to equitable remuneration from any person who, having been notified in writing by the applicant that the application for those rights has been filed under this Act, carried out acts that require the authorization of the applicant.

Marginal note:Rights extinguished

• 20 (1) The rights granted under section 19 cease if the application is withdrawn by the applicant, is rejected or refused or is deemed to have been abandoned under section 26.

• Marginal note:Reinstatement of application

  (2) Despite subsection (1), if an application that is deemed to have been abandoned is subsequently reinstated, the rights granted under section 19 are deemed never to have ceased.

Marginal note:Filing date — claim respecting priority

21 For the purposes of sections 19 and 20, with respect to an applicant that has made a claim respecting priority under section 11, the filing date is the date that would be the filing date of the application if there were no claim respecting priority.

Consideration and Disposition of Applications

Marginal note:Making objection to application

• 22 (1) A person who considers that an application in respect of which particulars have been published under section 70 ought to be refused on any ground that constitutes a basis for rejection under section 17 or that a request in the application for an exemption from compulsory licensing ought to be refused, may, on payment of the prescribed fee, file with the Commissioner, within the prescribed period beginning on the date of publication, an objection specifying that person’s reasons. The prescribed fees are not required in the case of an objection made for the purpose of this subsection under the authority of the Minister of Industry after notice under subsection 70(2).

• Marginal note:Copy of objection to be sent to applicant

  (2) As soon as practicable after the filing of an objection pursuant to subsection (1), the Commissioner shall send a copy of the objection to the person in respect of whose application the objection is filed, unless the Commissioner rejects the objection in accordance with subsection (3).

• Marginal note:Rejection of objection

  (3) Where it appears to the Commissioner that there is good reason for rejecting an objection referred to in subsection (2), the Commissioner shall give the person making the objection a reasonable opportunity to show cause why the objection should not be rejected and, if the person shows the Commissioner no such cause, the Commissioner shall reject the objection and give notice accordingly to the person.

• Marginal note:Representations by objector and applicant

  (4) If the objection is not rejected in accordance with subsection (3), the Commissioner shall give the person making the objection and the person in respect of whose application the objection is filed a reasonable opportunity to make representations with respect to the objection and shall take those representations into account before making the decision to refuse the application or to grant plant breeder’s rights with or without an exemption from compulsory licensing.

• Marginal note:Upholding objection

  (5) Where the Commissioner upholds an objection made under this section, the Commissioner shall refuse the application or request therein for exemption accordingly.

Marginal note:Consideration of applications

• 23 (1) After the publication under section 70 of the particulars of an application, the Commissioner shall, in order to ascertain whether it conforms to this Act, consider the application and all documents and any other material that are submitted to the Commissioner in connection with the application.

• Marginal note:Tests and trials

  (2) For the purpose of determining if the plant variety to which the application relates meets the requirements set out in section 4, the Commissioner shall require the performance of any tests and trials with the plant variety, under any conditions, as the Commissioner considers necessary.

• Marginal note:Fee and materials

  (3) The person on whose part material is submitted for consideration under subsection (1) shall, without prejudice to the requirements of subsection 9(1) and at the time and place that the Commissioner directs,

  • (a) pay the appropriate prescribed examination fee;

  • (b) provide any of the following that the Commissioner considers necessary for the purposes of carrying out or evaluating the results of tests and trials with the plant variety in question:

    • (i) propagating materials,

    • (ii) information, whether by way of photographs, drawings, documentation or otherwise, respecting the plant variety, and

    • (iii) specimens of the plant variety or of parts of it; and

  • (c) provide any prescribed information, documents or materials.

Marginal note:Acceptance of foreign results

• 24 (1) If the Commissioner obtains from an appropriate authority in any country of the Union or agreement country the official results of tests and trials referred to in subsection 23(2) and the Commissioner considers them to be acceptable, the Commissioner may rely on those results. The person on whose part material is submitted for consideration under subsection 23(1) shall pay the costs incurred in obtaining those results.

• Marginal note:Submission to foreign tests and trials

  (2) The Commissioner may submit to the appropriate authority in a country of the Union or an agreement country, in order that any necessary tests and trials may be undertaken in that country with the plant variety in question, anything furnished in support, as required by subsection 9(1), of an application or in compliance with subsection 23(3) and the Commissioner may accept such results of any of the tests and trials as are furnished by that authority.

Marginal note:Prohibition during pendency of objection

25 Subject to the regulations, where an objection to an application has been filed under section 22, the Commissioner shall not, before disposal of the objection, carry out in respect of the application any functions of the Commissioner under section 23 or 24.

Marginal note:Abandonment of application

• 26 (1) An application shall be deemed to have been abandoned on failure of the applicant to prosecute the application, whether in default of compliance with subsection 23(3) or of payment of any fee pursuant to subsection 27(3) or otherwise, within the prescribed period after the taking on the part of the Commissioner, with respect to the application, of any action of which the Commissioner gives notice to the applicant.

• Marginal note:Reinstatement of abandoned application

  (2) An application deemed abandoned pursuant to subsection (1) may be reinstated

  • (a) within the prescribed time and on payment of the prescribed fee; or

  • (b) on petition presented to the Commissioner within the prescribed time subsequent to the time referred to in paragraph (a) and on payment of the prescribed fee if the petitioner satisfies the Commissioner that the failure to prosecute the application was not reasonably avoidable.

Grant, Refusal and Disposal of Plant Breeder’s Rights

Marginal note:Decision of Commissioner

• 27 (1) If the Commissioner approves a denomination proposed by an applicant under section 14 and, after consideration of the application in accordance with subsection 23(1) and evaluation of the results of any tests and trials carried out with the plant variety to which the application relates, the Commissioner is satisfied that the plant variety meets the requirements set out in section 4 and that the application otherwise conforms to this Act, the Commissioner shall grant plant breeder’s rights in accordance with subsection (3).

• Marginal note:Refusal

  (2) If the Commissioner is not satisfied as described in subsection (1), the Commissioner shall refuse the application.

• Marginal note:Request for exemption

  (2.1) In the case where the applicant for plant breeder’s rights has requested that those rights be exempted from compulsory licensing under subsection 32(1), the Commissioner may, at the time of the grant of those rights, approve that request if the Commissioner is satisfied with the reasons given by the applicant for that request.

• Marginal note:Rights granted by issuance of certificate

  (3) The Commissioner shall, on payment of the prescribed fee,

  • (a) enter in the register the particulars required by section 63 in relation to the plant variety in respect of which the plant breeder’s rights are to be granted; and

  • (b) make the grant by issuing a certificate of plant breeder’s rights in respect of the plant variety to the applicant.

• Marginal note:Opportunity for representations before refusal of grant

  (4) The Commissioner shall not refuse 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.

• Marginal note:Destroyed or lost certificates

  (5) If a certificate of plant breeder’s rights issued under paragraph (3)(b) is destroyed or lost, a certified copy may be issued in lieu of that certificate on payment of the prescribed fee.