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Plant Breeder's Rights
The Plant Breeders' Rights Act, affording protection for new plant varieties came into force on August 1, 1990. Applications under the Act require that applicable regulations be in place. Some regulations have been enacted, but only some types of plant can be protected under the regulations promulgated thus far. If you are interested in protecting a certain type of plant, we can advise further whether the plant type in which you are interested is at present protectible. Most of the following discussion summarizes the Canadian law and practice on plant breeders' rights.
Plant Breeders' Rights Office
The Minister of Agriculture has established a Plant Breeders' Rights Office in the Department of Agriculture to be administered by the Commissioner of Plant Breeders' Rights. The Commissioner will be responsible for receiving and examining applications, granting certificates, maintaining a register of plant breeders' rights, and so on.
Plant Varieties Eligible for Protection
To be eligible for protection under the Act, a plant variety ("any cultivar, clone, breeding line or hybrid of a prescribed category of plant that can be cultivated") must be (1) new and (2) included in the list of prescribed categories. With respect to the first requirement, a variety is "new" when the following conditions are met:
it is clearly distinguishable by one or more identifiable characteristics from any variety the existence of which is a matter of common knowledge;
it is stable in its essential characteristics; and
it is "sufficiently homogenous", defined by the Act as a variety in which, when produced in quantity, variations are predictable, describable and commercially acceptable.
Regarding the second requirement, a list of prescribed species eligible for protection will be gradually developed by regulation. Only a few plant types are covered so far. It will probably be several years before a significant number of crops and ornamental plants are covered.
The Act does not distinguish between sexually and asexually reproducing species.
Naming New Varieties
The applicant must propose a suitable name to be approved by the Commissioner. A suitable denomination conforms to yet to be prescribed regulations, and must not mislead or cause confusion. An approved denomination may be used exclusively for the new variety. Denominations for plant varieties may not be adopted or used as trade-marks, pursuant to amendments to the Trade-marks Act.
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