Plant Breeders’ Rights

Plant Breeders’ Rights (PBR) are a form of intellectual property protection granted to plant breeders to encourage the development of new and improved plant varieties. PBR provides legal protection to the breeder or developer of a new plant variety, giving them exclusive control over the production, sale, and distribution of that variety for a specified period of time. The rights apply to the propagating material, such as seeds, cuttings, or tissue cultures, as well as harvested material obtained from the protected variety, including grains, fruits, and flowers.

Plant breeding is the science of improving plants to enhance their value or to develop new plant varieties with desired characteristics, such as improved yield, disease resistance, drought tolerance, enhanced nutritional value, and other characteristics beneficial to agriculture, horticulture, and forestry. These new or improved plant varieties can contribute to agricultural productivity, food security, and environmental sustainability. Today’s breeders can be anyone from gardeners and farmers to government research institutions and universities.

In Canada, all plant species that have undergone human intervention and breeding efforts are eligible for protection. However, algae, fungi, and bacteria cannot be protected under plant breeders’ rights in Canada.

In Canada, the term of protection for Plant Breeders’ Rights (PBR) is 25 years for trees and vines and 20 years for all other plant varieties, starting from the date of the rights grant. This duration is in line with international standards set by the International Union for the Protection of New Varieties of Plants (UPOV), which Canada follows as a member.

Plant Breeders’ Rights in Canada are administered and regulated by the Plant Breeders’ Rights Office of the Canadian Food Inspection Agency (CFIA).

A plant variety is eligible for protection if the variety is new, distinct, uniform and stable.

• New: The variety must be new, meaning it should not have been sold or otherwise made available to the public more than one year prior to the date of application within Canada, or more than four years outside Canada, and six years for trees and vines.
• Distinct: A variety must be clearly different from any other publicly known variety at the time when an application is filed.
• Uniform: The variety must be sufficiently uniform in its relevant characteristics. This means that the plants of the variety should be consistent in their traits and performance when propagated. Any variation should be predictable to the extent that the breeder can describe it and should be commercially acceptable.
• Stable: The variety must remain stable in its essential characteristics after repeated propagation. The key traits of the variety must be reliably passed on through successive generations.

Research and Development: During the R&D phase, track and document the development data about the new plant variety under the required criteria of novelty, distinctness, uniformity, and stability.

Initial Assessment: using the help of an IP professional, conduct an initial assessment to determine if the variety is likely to meet the criteria for protection of Plant Breeders’ Rights of novelty, distinctness, uniformity, and stability.

Filing the Application: using the help of an IP professional, file the PBR application with the Plant Breeders’ Rights Office of the Canadian Food Inspection Agency (CFIA). This application requires detailed information about the new variety, including its characteristics and how it was developed, as well as a seed sample, if applicable.

Examination and Testing:

• Initial Examination: The Plant Breeders’ Rights Office conducts an initial examination of the application to ensure it is complete and that the variety appears to meet the basic requirements for PBR.
• Distinctness, Uniformity, and Stability (DUS) Testing: The variety undergoes DUS testing, which involves growing the variety under controlled conditions and comparing it with existing varieties to confirm its distinctness, uniformity, and stability. This testing can be conducted by the breeder, an accredited institution, or the Plant Breeders’ Rights Office.

Publication and Opposition:

• Publication: If the variety passes the DUS testing, the details of the application are published in the Plant Varieties Journal. This publication serves as a public notice of the pending application.
• Opposition Period: There is a period during which third parties can file objections to the application if they believe the variety does not meet the criteria for protection or if they have prior rights to the variety.

Granting of Rights:

• Final Examination: The Plant Breeders’ Rights Office conducts a final examination of the application, including any opposition filings.
• Granting the Rights: If the application passes the final examination and no valid oppositions are upheld, the Plant Breeders’ Rights Office grants the Plant Breeders’ Rights. The breeder receives a certificate of protection, and the variety is officially listed in the Register of Plant Varieties.

Plant Breeders’ Rights Maintenance Fees: The breeder must pay annual maintenance fees to keep the PBR in force. The PBR can be maintained for up to 25 years for trees and vines and 20 years for other plants. After this period, the rights expire, and the variety falls into the public domain, which means anyone can use it.

Generally, the process can take anywhere from 2 to 5 years, from the initial application submission to the granting of rights.

Plant breeders’ rights that are granted in Canada only apply in Canada. To protect a variety in another country, the breeder must file a separate application in that jurisdiction.

• Exclusive Commercial Rights: Breeders are granted exclusive legal rights to control the propagation and sale of the protected plant variety. This means they can prevent others from producing, selling, or distributing the variety without their permission, enabling them to capture the financial benefits of their innovation.
• Return on Investment: Developing new plant varieties involves substantial time, effort, and resources. PBR helps breeders recoup their investment by allowing them to charge for the use of their plant varieties, either through direct sales or licensing agreements. Breeders can license their protected varieties to other companies or growers, generating additional revenue streams through royalties or licensing fees. This allows breeders to benefit from their innovations even if they do not engage directly in large-scale production or distribution.
• Market Advantage: Holding PBR can provide a competitive edge in the market. Protected varieties can command premium prices due to their unique characteristics, such as higher yields, disease resistance, or superior quality.
• Legal Protection: PBR provides a legal framework for breeders to enforce their rights. This includes taking legal action against unauthorized use or infringement and ensuring that their intellectual property is protected.
• Recognition and Reputation: Obtaining PBR for a new variety enhances the breeder’s reputation and credibility within the industry. It recognizes their expertise and contribution to agricultural advancement.
• More Opportunities for Partnerships: PBR can facilitate collaborations and partnerships with other breeders, research institutions, and companies. These partnerships can lead to further advancements and commercial opportunities.
• An easier way to protect your Breeder’s Rights Internationally: Registered PBR in Canada can make it easier to get protection in other countries through international agreements like the International Union for the Protection of New Varieties of Plants (UPOV), allowing breeders to protect and commercialize their varieties globally.

• Incentive for continuous Innovation: By developing and protecting new and improved plant varieties, we can encourage country-wide investment in plant breeding programs and better biodiversity in Canada. At the same time, this will foster continuous improvement and innovation in the agricultural, horticultural, and forestry sectors.
• Agricultural productivity: By developing and protecting new and improved plant varieties, we can increase the yields of crops in Canada and improve their quality, leading to higher-value products for the country with increased marketability.
• Food security: By developing and protecting new and improved plant varieties, we can enhance their nutritional content, leading to human health benefits. At the same time, new varieties can offer improved disease and pest resistance and better adaptability to changing climates, resulting in reduced crop losses and increased efficiency in the use of resources.
• Environmental sustainability: By developing and protecting new and improved plant varieties, we can reduce the need for fertilizers and pesticides, leading to environmental benefits and contributing to improvement in environmental and agricultural sustainability.