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Amendments to the Plant Breeders’ Rights Act receive Royal Assent

Authored byDavid Schwartz

Bill C-18, entitled the Agricultural Growth Act, received Royal Assent on February 25, 2015, and will come into force on a day to be fixed by order of the Governor in Council.

The Bill amends several statutes in order to implement various measures relating to agriculture, and makes significant amendments to the Plant Breeders’ Rights Act, bringing it into conformance with the requirements of the 1991 Act of the International Convention for the Protection of New Varieties of Plants (UPOV 1991).

Details of the amendments to the Plant Breeders’ Rights Act are provided in our May 26, 2014 IP Update. Significant changes include:

  • Introduction of a domestic “grace period” such that sale of the variety in Canada by or with the concurrence of the breeder or his legal representative is only a bar to the grant of plant breeders’ rights if the sale occurred more than one year before the Canadian filing date.

  • Introduction of new exclusive rights of the holder of plant breeders’ rights:
    • to reproduce propagating material of the plant variety;
    • to condition the variety’s propagating material for the purposes of propagating the variety;
    • to export or import propagating material of the variety;
    • to stock propagating material of the variety for the purpose of exercising any of the plant breeders’ rights; and
    • to exercise plant breeders’ rights for:
      • harvested material obtained through the unauthorized use of propagating material of the plant variety, unless the breeder had a reasonable opportunity to exercise rights in relation to the propagating material and failed to do so;
      • “essentially derived” varieties;
      • varieties not clearly distinguishable from the protected variety; and
      • varieties whose production requires the repeated use of the protected variety.

  • Introduction of positive exceptions from the breeder’s exclusive rights for acts done:
    • privately and for non-commercial purposes;
    • for experimental purposes; or
    • for the purpose of breeding other plant varieties.

  • Codification of a “farmers’ privilege,” providing that the exclusive right to produce and reproduce propagating material of the variety and to condition propagating material of the variety for the purposes of propagating the variety 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.

  • Notably, the Bill, as passed, includes an amendment by the House of Commons Standing Committee on Agriculture and Agri-Food to clarify that this farmers’ privilege includes the right to store and stock seeds as well as produce, reproduce and condition seeds.  This was missing from the Bill as originally introduced in Parliament.

  • Introduction of an “exhaustion” principle, such that the rights of the breeder do not apply to acts done in relation to material of a plant variety after that material has been sold in Canada by or with the consent of the holder of the plant breeders’ rights unless the act involves further propagation of the plant variety or export, other than for consumption, to a country that does not protect varieties of that type.

  • An increase in the term of protection from 18 years from grant for all varieties to 25 years from the date of grant in the case of a tree or vine, and 20 years in any other case.

We will report again when further information is available concerning the coming into force of the Bill. 

For further information, please contact David Schwartz or another member of our firm’s Life Sciences group.

The preceding is intended as a timely update on Canadian intellectual property and technology law. The content is informational only and does not constitute legal or professional advice. To obtain such advice, please communicate with our offices directly.