People who breed new varieties of plants have rights to their intellectual property, rights 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. This means that a plant breeder has the right to control how to make new plants out of their new, registered plant variety. They also have the sole right to authorize others to create or sell this plant or it’s seeds. The breeder also has rights relating to the name of their new plant variety and can stop others from using this name.

In Canada, these rights are set out in the Plant Breeders’ Rights Act. The Act is administered by the Canadian Food Inspection Agency (CFIA), Plant Breeders’ Rights Office.

Application process

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 as a new variety of plant.

What are the criteria to determine a new variety of plant?

Determining whether the plant variety is new in part depends on whether the plant was sold in Canada or internationally, and whether the application was filed before or after February 27, 2015. For specific information on this, refer to the Guide to Plant Breeders’ Rights.

The plant variety must also meet criteria for distinctness, uniformity and stability. According to the CFIA, Plant Breeders’ Rights Office:

In order to be “distinct”, a plant variety must be “measurably different from all varieties of common knowledge which are known to exist at the time the application was filed”. This means that it must have unique characteristics or traits that set it apart from other existing varieties.

In order to be “uniform”, a plant variety must be “sufficiently uniform in its relevant characteristics, subject to the variation that may be expected from the particular features of its propagation”. This means that it needs to be consistently similar in its important traits, with some allowance for expected differences due to how it’s grown. These differences should be predictable, describable by the breeder, and shouldn’t significantly affect its commercial value.

In order to be “stable”, a plant variety must “remain true to its description over successive generations”. This means that it consistently maintains its essential traits across multiple generations.

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.

How long do rights last?

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.

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. To protect your rights in another country, you must make an application according to the laws of that country.

For more information, including current fees, visit the Plant Breeders’ Rights Office at the Canadian Food Inspection Agency.

								
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