INTELLECTUAl PROPERTY IN AGRICULTURE:

PLANT BREEDERS' RIGHTS

Considerations for producers:

Plant Breeders’ Rights (PBRs) are a form of intellectual property used to prevent the unauthorized production or sale of PBR-certified plant varieties within Canada. When a producer purchases seed or other propagating material from a distributer, the producer is granted a license to use that material for a specific purpose. If the producer breaches the terms of the license by using material for an unauthorized purpose—whether intentional or accidental—the producer can be held liable for PBR infringement and face significant civil penalties.

Considering the risk of infringement, producers must take care to review licensing terms when purchasing seed or other propagating material. Common licensing terms include limits on how many generations of a plant may be grown from the originating material and prohibitions on selling propagating material to third-parties. Producers should adopt best practices for recording when and how seed and other propagating material is used in their business in order to prevent accidental infringement and to defend themselves against civil action.

If you are a producer concerned about your rights and obligations or need assistance with understanding licensing terms, we encourage you to seek legal advice.

Considerations for plant breeders:

PBR certification grants plant breeders with a limited-term commercial monopoly (twenty-five years for varieties of trees and vines or twenty years for all other plant varieties). During the term of the commercial monopoly, plant breeders have the exclusive right to carry out the following activities:

• to produce and reproduce propagating material of a certified variety;
• to condition propagating material of a certified variety for the purposes of propagating the variety;
• to sell propagating material of a certified variety;
• to export or import propagating material of a certified variety;
• to make repeated use of propagating material of a certified variety for the purposes of developing a new commercial plant variety;
• to use propagating material of a certified variety for the production of ornamental plants or cut flowers;
• to stock propagating material of a certified variety for the purpose of doing any of the above-listed acts; and
• to authorize, conditionally or unconditionally, the doing of any of the above-listed acts by another person.

PBR certification allows plant breeders to distinguish their products from the competition, attract investment, and recover the costs of developing new plant varieties through licensing revenue. In exchange for PBR certification, however, plant breeders are required to make their new plant varieties available to the public for further research and for use once certification expires. This intellectual property “bargain” ensures that commercial interests are balanced against the public interest and, ultimately, encourages innovation in Canada.

About four thousand plant varieties are registered in Canada. Of that total number of registered plant varieties, approximately one-quarter are either PBR certified or pending PBR certification. The majority of PBR-certified plant varieties are grain crops (e.g. wheat and barley). Cash crops (e.g. tobacco and hemp) and horticulture crops (fruit and vegetable-bearing plants) are also well-represented. We anticipate that an increasing number of PBR applications will be filed in the near future for newly-developed varieties of cannabis and grain crops related to the craft brewery and craft distillery markets.

Plant breeders should take care when drafting license agreements and selling seed and other propagating material to other persons. In general, intellectual property issues are unique and can lead to costly misunderstandings and the loss of intellectual property rights altogether if not addressed properly. Agreements with distributors and producers should be tailored to meet the needs of every party.

Despite PBR certifications being granted by the federal government, they are not enforced by the federal government. If a plant breeder suspects that a distributor or producer is infringing the plant breeder’s rights, the plant breeder should consult a lawyer about commencing a civil action in the Federal Court of Canada.

How to obtain PBR certification for a plant variety:

PBR certification for a plant variety is obtained by submitting an application to the Plant Breeders’ Rights Office. The application must enclose a physical sample of the variety and demonstrate that the variety has the following characteristics:

• New: The plant variety must not have been sold: (i) anywhere in Canada within one year of the application filing date; or (ii) anywhere outside of Canada within six years of the application filing date for varieties of trees and vines or four years of the application filing date for all other plant varieties.
• Distinct: The plant variety must be measurably different from all varieties commonly known to exist as of the application filing date.
• Uniform: The plant variety must be sufficiently uniform in its relevant characteristics, with each plant within a single generation expressing the same phenotype.
• Stable: The plant variety must maintain its relevant characteristics over successive generations, with each progeny expressing the same phenotype as the parent.

Once an application for a new plant variety is filed, the application is examined to ensure that the variety has the above-noted characteristics. The examination procedure includes a “site examination” in which the examiner physically attends a comparative growth trial of the plant variety in Canada (or purchases the results of a growth trial performed outside of Canada). The application may be allowed or refused depending on the results of examination.

Figure 1. Flow-chart illustrating the application process for obtaining Plant Breeders' Rights (PBR) certification for a new plant variety in Canada.

An application for PBR certification must be accompanied by Plant Breeders’ Rights Office fees that are due at each stage of the certification process. The current fees for 2020 are listed in the following table. Note that these fees do not include legal fees or the cost of performing a comparative growth trial.

Plant Breeders' Rights Office Fees

PBR certification is an important tool for the protection of new plant varieties in Canada. If you are a plant breeder seeking to commercialize your plant varieties, you should speak with an intellectual property lawyer about making an application for PBR certification.

North & Company LLP has served the agriculture industry in Southern Alberta since 1973. Our team of intellectual property lawyers, corporate lawyers, and litigators can help you grow your business.

The information contained in this article is not legal advice.

Copyright © 2020 Ian C. Andrews