Area of Law: Intellectual Property
Answer # 337
Plant Breeders' rightsRegion: Ontario Answer # 337
People who breed new varieties of plants have rights to their intellectual property similar to those of patent holders. Those who breed plants include farmers, gardeners, or those working for the government, private companies or universities. Plant breeders’ rights give the breeder (or their employer) exclusive control of the propagating material, such as seeds, cuttings and tissue cultures.
In Canada, these rights are set out in the Plant Breeders’ Rights Act. The Act is administered by the Canadian Food Inspection Agency, Plant Breeders’ Rights Office.
To be granted protection under the Act, the plant breeder must submit an application together with supporting documents, seed samples and a government fee to the Plant Breeders’ Office. In Canada, although varieties of all plant species are eligible for protection, algae, fungi and bacteria are not.
Once the Office receives the application, the second step in the process is to submit a site examination form together with another government fee. The purpose of the examination is for the Office to determine if the candidate variety meets the requirements for distinctness, uniformity and stability. After the examination has been completed, the Office will notify the applicant if the variety is eligible for the grant of rights. If it is, a confirmation of grant of rights information form must be completed.
You can now also apply online using the International Union for the Protection of New Varieties of Plants (UPOV). For more information, visit UPOV.
Plant Breeders’ Rights granted before February 27, 2015
If granted before February 27, 2015, a plant breeders’ rights can last up-to 18 years effective from the date the Certificate of Plant Breeders’ Rights was issued.
Plant Breeders’ Rights granted on, or after February 27, 2015
If granted on, or after February 27, 2015, a plant breeders’ rights can last for a period of up-to 25 years for the variety of a tree or vine (including their rootstocks), and 20 years for all other varieties of plants (excluding algae, bacteria and fungi) effective from the date the Certificate was issued.
However, in all cases, to maintain these rights, the breeder must pay an annual government fee. It is important to note that plant breeders’ rights granted in Canada are only valid in Canada. In order to protect your rights in another country, you must make an application according to the laws of that country.
For more information, visit the Plant Breeders’ Rights Office at the Canadian Food Inspection Agency.
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