Canada: Bill C-18 Modernizes The Plant Breeders’ Rights Act

Last Updated: May 28 2014
Article by David Schwartz

Bill C-18, now pending in the Parliament of Canada, if enacted, would amend several statutes in order to implement various measures relating to agriculture. The Bill makes significant amendments to the Plant Breeders' Rights Act, including changes to the requirement for novelty, the duration and scope of breeders' rights, as well as exceptions from and exhaustion of those rights.

The Bill, entitled the Agricultural Growth Act, brings the Plant Breeders' Rights Act into conformance with the requirements of the 1991 Act of the International Convention for the Protection of New Varieties of Plants, which is a precondition to ratification of, or accession to, the 1991 Act.

Novelty

Under the current provisions of the Plant Breeders' Rights Act, sale of the variety in Canada by or with the concurrence of the breeder or his legal representative prior to the Canadian filing date is a bar to the grant of plant breeders' rights.

Bill C-18 amends the Act to introduce a one-year "grace period" such that sale of the variety 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.

Scope of the breeder's rights

The current Act provides that the holder of the plant breeder's rights respecting a variety has the exclusive right: 

  1. to sell, and produce in Canada for the purpose of selling, propagating material, as such, of the plant variety;
  2. to make repeated use of propagating material of the plant variety in order to produce commercially another plant variety if the repetition is necessary for that purpose;
  3. where it is a plant variety to which ornamental plants or parts thereof normally marketed for purposes other than propagation belong, to use any such plants or parts commercially as propagating material in the production of ornamental plants or cut flowers; and
  4. to authorize, conditionally or unconditionally, the doing of an act described in paragraphs (a) to (c). 

Bill C-18 redefines the scope of the breeder's rights, providing that the holder of the plant breeder's rights respecting a plant variety has the exclusive right:

  1. to produce and reproduce propagating material of the variety;
  2. to condition propagating material of the variety for the purposes of propagating the variety;
  3. to sell propagating material of the variety;
  4. to export or import propagating material of the variety;
  5. to make repeated use of propagating material of the variety to produce commercially another plant variety if the repetition is necessary for that purpose;
  6. in the case of a variety to which ornamental plants belong, if those plants are normally marketed for purposes other than propagation, to use any such plants or parts of those plants as propagating material for the production of ornamental plants or cut flowers;
  7. to stock propagating material of the variety for the purpose of doing any act described in any of the paragraphs (a) to (f); and
  8. to authorize, conditionally or unconditionally, the doing of any act described in any of paragraphs (a) to (g). 

Pursuant to Bill C-18, these exclusive rights are extended to harvested material, including whole plants or parts of plants, obtained through the unauthorized use of propagating material of the plant variety unless the holder of the rights has failed to exercise his rights after reasonable opportunity to do so. 

The breeder's rights under (a) to (h) above are also extended to: (1) "essentially derived" varieties; (2) varieties which are not clearly distinguishable from the protected variety; and (3) varieties whose production requires the repeated use of the protected variety. 

Exceptions to the breeder's rights

The current Act does not specify exceptions to the breeder's rights. The positive statement of the exclusive rights of the breeder constitute a complete code, and any exception (such as a farmers' privilege as discussed below) can only be inferred on the basis that it is not expressly covered by the specified rights of the breeder.

Although the current Act does not positively specify a "farmers' privilege" to save seed and plant it on their own land, the existence of a farmers' privilege appears inherent in the current legislation, because the saving of seed and planting of saved seed is not an exclusive right reserved for the breeder. 

Bill C-18 introduces exceptions from the breeder's exclusive rights for acts done (1) privately and for non-commercial purposes; (2) for experimental purposes; or (3) for the purpose of breeding other plant varieties. 

In addition, it codifies 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. 

Absent this exception, the practice of saving seed is inconsistent with the exclusive rights of the breeder to produce and reproduce propagating material and to condition propagating material.   

Notably, the farmers' privilege codified in Bill C-18 does not extend to an exception from the breeder's exclusive right to stock propagating material of the variety.

Exhaustion of the breeder's rights

Bill C-18 also amends the Act to provide that the breeder's rights 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 breeder's 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. 

This "exhaustion" of the rights of the breeder aims to prevent "double dipping" by collecting royalties more than once on a single cycle of propagating material.

Duration of the breeder's rights

The duration of the breeder's rights under the current Act is 18 years from the date of grant, irrespective of the variety.  

Bill C-18 increases the term of protection to 25 years from the date of grant in the case of a tree or vine, and 20 years in any other case.

Enactment

Bill C-18 is a government bill that was introduced in the House of Commons by the Minister of Agriculture and Agri-food. First reading of Bill C-18 in the House has been completed. Further review and passage of the bill by the House and the Senate are required before the bill can become law. 

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.

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