Plant Breeders’ Rights Regulations

Contents

Whereas, pursuant to subsection 75(2) of the Plant Breeders’ Rights Act, a copy, of the proposed Regulations respecting plant breeders’ rights, substantially in the form annexed hereto, was published in the Canada Gazette Part I on July 20, 1991;^noteAnd Whereas a reasonable opportunity was afforded to interested persons to make representations to the Minister of Agriculture with respect to the proposed Regulations;Therefore, His Excellency the Governor General in Council, on the recommendation of the Minister of Agriculture and the Treasury Board, pursuant to subsection 75(1) of the Plant Breeders’ Rights Act, is pleased hereby to make the annexed Regulations respecting plant breeders’ rights.

Short Title

1 #

These Regulations may be cited as the Plant Breeders’ Rights Regulations.

Interpretation

2 #

(1)For the purposes of the Act and these Regulations,

description means a narrative that defines the characteristics of a plant variety for the purpose of demonstrating that the variety in question is a new variety; (description)

identifiable characteristics means characteristics of a plant variety that may be included in a description and that, when so included, permit a clear distinction to be made between that variety and all other varieties in its category; (caractère identifiable)

recently prescribed category [Repealed, SOR/2012-286, s. 41]

representations means representations in writing. (observations)

(2)In these Regulations, Act means the Plant Breeders’ Rights Act. (Loi)

Application

3 #

These Regulations apply to any plant variety belonging to a category set out in Schedule I.

4 #

[Repealed, SOR/2017-94, s. 12] (repealed)

Criteria Relating to Common Knowledge

5 #

For the purposes of paragraph 4(2)(a) of the Act, the following criteria shall be considered when determining that the existence of a plant variety is a matter of common knowledge, namely,

(a)whether the variety is already being cultivated or exploited for commercial purposes; or

(b)whether the variety is described in a publication that is accessible to the public.

Prescribed Periods

6 #

[Repealed, SOR/2012-286, s. 42] (repealed)

7 #

(1)[Repealed, SOR/2012-286, s. 43] (repealed)

(2)[Repealed, SOR/2026-74, s. 1] (repealed)

8 #

An objection made under subsection 22(1) of the Act in respect of an application for the grant of plant breeders’ rights shall be filed by submitting a written statement within a period of six months after the date of publication of the application.

9 #

The applicant is deemed to have abandoned an application for the grant of plant breeders’ rights, pursuant to subsection 26(1) of the Act, six months after the date of notice of any action by the Commissioner.

10 #

Pursuant to paragraph 26(2)(a) of the Act, the applicant who is deemed to have abandoned his application pursuant to subsection 26(1) of the Act may have the application reinstated within 30 days after the date on which the application was deemed abandoned.

11 #

The petition referred to in paragraph 26(2)(b) of the Act shall be presented within 90 days after the end of the period set out in section 10.^note

12 #

An assignee shall comply with the requirements of subsection 31(1) of the Act and section 26 of these Regulations within one year after the day on which the plant breeders’ rights are assigned.^note

13 #

A holder of plant breeder’s rights shall comply with the Commissioner’s request, for the purposes of paragraph 35(1)(b) of the Act, within 60 days after the date of receipt of the request.

14 #

An objection made pursuant to paragraph 36(2)(a) of the Act shall be filed by submitting a written statement to the Commissioner, within 60 days after the date on which notice is given by the Commissioner.

15 #

An applicant or a holder of plant breeder’s rights shall correct any failure described in subsection 39(2) of the Act within 30 days after the date of the notice from the Commissioner relating to the failure.

16 #

For the purposes of paragraph 45(1)(b) of the Act, the holder of plant breeder’s rights shall take proceedings after being called on to do so within 15 days after the date on which the holder is so called.

17 #

For the purposes of subsection 67(1) of the Act, the period for which documents shall be preserved is a period equal to the term of the grant of plant breeder’s rights or a period of six months after the date on which an application for plant breeder’s rights has been deemed to have been abandoned pursuant to subsection 26(1) of the Act, as the case may be.^note

18 #

For the purposes of subsection 67(3) of the Act, all papers and other material submitted in connection with the application for the grant of plant breeders’ rights shall be returned to the applicant within 30 days after the date of withdrawal of the application.

18.1 #

Any objection to a change of denomination published in the Canada Gazette pursuant to paragraph 70(3)(a) of the Act shall be filed by submitting a written statement with the Commissioner within a period of six months after the date of publication of the change of denomination.^note

Application for Plant Breeders’ Rights

19 #

(1)An application for the grant of plant breeder’s rights shall be made to the Commissioner and contain the following information:

(a)the name and address of the applicant;

(b)the name and address of the breeder, if different from the applicant;

(c)the name and address of any agent or legal representative, where applicable;

(d)the botanical and common names of the plant variety;

(e)the proposed denomination;

(f)[Repealed, SOR/2026-74, s. 3] (repealed)

(g)a description of the plant variety;

(h)a statement that the plant variety is a sufficiently homogeneous variety as defined in subsection 4(4) of the Act and is stable;

(i)the manner in which the plant variety was originated;

(j)where an application for plant breeders’ rights respecting the plant variety has been made or granted in any country other than Canada, the name of the country;

(k)whether priority is being claimed as a result of a preceding application made by the applicant in a country of the Union or an agreement country;

(l)where the breeder or a legal representative of the breeder sold or concurred in the sale of the plant variety within or outside Canada, the date of the sale;

(m)where applicable, any request for exemption from compulsory licencing; and

(n)the manner in which the propagating material will be maintained.

(2)At the time of filing the application, the applicant shall submit to the Commissioner a representative reference sample of viable propagating material of the plant variety that is the subject of the application if one is available.

(3)If the applicant establishes to the satisfaction of the Commissioner that such a sample was unavailable at the time of filing the application, the applicant shall, as directed by the Commissioner, submit the sample at a later time, but before the grant of plant breeders’ rights.

20 #

An application referred to in subsection 19(1) shall be supported by

(a)the results of comparative tests and trials to demonstrate that the plant variety is a new variety; and

(b)photographs and a detailed description of the plant variety that illustrate that the plant variety is clearly distinguishable in accordance with paragraph 4(2)(b) of the Act.

^note

21 #

Where an application referred to in subsection 19(1) is made by a person other than a breeder, the application shall be accompanied by evidence that establishes that the person is the agent or legal representative of the breeder.^note

Denominations of New Varieties

22 #

Where the Commissioner rejects a proposed denomination pursuant to subsection 14(2) of the Act, an applicant shall submit another proposed denomination in writing to the Commissioner.

23 #

(1)A request for a change of denomination shall be submitted to the Commissioner in writing.

(2)The Commissioner may approve a change of denomination pursuant to subsection 14(5) of the Act in the following circumstances, namely,

(a)where the denomination approved by the Commissioner is not, owing to error, the denomination proposed by the holder;

(b)where additional information that becomes available after the grant of plant breeders’ rights justifies a change of denomination; or

(c)where an objection has been filed under section 18.1.

24 #

A change of denomination comes into effect on the date on which it is approved by the Commissioner.

25 #

[Repealed, SOR/94-750, s. 10] (repealed)

Assignment of Plant Breeders’ Rights

26 #

If the holder of plant breeders’ rights assigns them, the assignee shall, for the purposes of subsection 31(1) of the Act, provide the Commissioner, in a format accessible to the Commissioner, with the following information:

(a)the name and address of the previous holder;

(b)the category and denomination of the plant variety to which the assignment applies;

(c)the plant breeder’s rights certificate number;

(d)a letter of assignment signed by both the holder and the assignee; and

(e)the effective date of the assignment.

^note

Compulsory Licences

27 #

(1)An application for a compulsory licence shall

(a)be in writing;

(b)identify the plant variety and category for which the application is made; and

(c)state the reasons for the application.

(2)Any interested person who will be adversely affected by the Commissioner’s decision to grant a compulsory licence may make representations to the Commissioner within 60 days after the date on which notice is given pursuant to subsection 32(5) of the Act.

28 #

Where the applicant makes the request referred to in paragraph 19(1)(m), the Commissioner may grant an exemption from compulsory licensing to allow the applicant sufficient time to multiply and distribute propagating material of the plant variety.

Fees and Charges

29 #

The fees and charges payable for the purposes of the Act and these Regulations are set out in Schedule II and are payable, in Canadian dollars, to the Receiver General for Canada.^note

30 #

(1)The annual fee set out in item 10 of Schedule II is payable on or before the date of the anniversary of the granting of plant breeder’s rights every year for the term of the grant of the rights.

(2)For the purposes of paragraph 35(1)(d) of the Act, failure to pay the fee referred to in subsection (1) within 60 days after the anniversary date may result in a revocation of the plant breeders’ rights.

Non-Application of Farmers’ Privilege

31 #

The exception set out in subsection 5.3(2) of the Act does not apply to the following classes of plant varieties:

(a)fruit, ornamental and vegetable plants;

(b)plants reproduced through vegetative propagation; and

(c)hybrids and parental varieties used in hybrid varieties.

^note

Term of Protection

32 #

For the purposes of subsection 6(1) of the Act, the term of the grant of plant breeders’ rights is 25 years, subject to earlier termination under the Act, with respect to a certificate that is issued after the day on which these Regulations come into force for any of the following categories:

(a)potato;

(b)asparagus;

(c)woody plant species.

^note

Sale of New Variety

33 #

For the purposes of subsection 4(3) of the Act, a sale does not include advertising or any exposure that is not for a consideration.^note

Schedule I · (Section 3)

Schedule II · (Section 29 and subsection 30(1))

Item | Column I | Column IIService | Fees or charges1 | Filing, pursuant to subsection 9(1) of the Act, of an application for plant breeder’s rights | $2502 | [Repealed, SOR/2026-74, s. 9]3 | Claim, pursuant to paragraph 11(1)(b) of the Act, respecting priority based on a preceding application made in a country of the Union or an agreement country | 504 | Examination, pursuant to subsection 23(1) and paragraph 75(1)(a) of the Act, of an application for grant of plant breeder’s rights | 7505 | Registration of grant of plant breeder’s rights pursuant to subsection 27(3) of the Act | 5006 | Filing, pursuant to subsection 22(1) of the Act, an objection to an application for plant breeder’s rights | 2007 | Processing of request for change of an approved denomination by the holder of the plant breeder’s rights pursuant to subsection 14(5) and paragraph 75(1)(a) of the Act | 1008 | Reinstatement of an abandoned application for plant breeder’s rights pursuant to paragraph 26(2)(a) of the Act | 1009 | Reinstatement of an abandoned application for plant breeder’s rights on petition pursuant to paragraph 26(2)(b) of the Act | 20010 | Annual fee, pursuant to subsection 6(2) of the Act | 30011 | Processing of application for compulsory licence, pursuant to subsection 32(1) and paragraph 75(1)(a) of the Act | 25012 | Issuance, pursuant to subsection 27(5) of the Act, of certified copy of lost or destroyed certificate of grant of plant breeder’s rights | 5013 | [Repealed, SOR/2026-74, s. 10]14 | Copies of documents or certificates with regard to an entry in the register or index referred to in subsection 67(2) of the Act, including any documents that, in the opinion of the Commissioner, should be open for public inspection and obtained from the Plant Breeders’ Rights Office | 0.50/page15 | Filing, under subsection 9(1) of the Act and by means of the International Union for the Protection of New Varieties of Plants (UPOV) PRISMA application tool, of an application to the Commissioner for grant of plant breeders’ rights | 152.32

Federal laws of Canada reproduced under the Reproduction of Federal Law Order (SI/97-5); not the official version. Source: Justice Laws Website.