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Application Process
Application for Plant Breeders' Rights
Section 7 allows the breeder of a new variety or a legal representative of the breeder to apply for a grant of plant breeders' rights. The Act defines "breeder" as the actual individual who discovered or originated the plant variety unless that person was an officer or employee of another person, in which case the latter is deemed to be the breeder. The breeder must be a citizen of, or resident or have a registered office in, Canada or a country of the Union or a country having a bilateral agreement with Canada concerning plant breeders' rights.
To be eligible for protection, the variety must not, with the concurrence of the breeder, have been sold in Canada before the effective date of the application, or sold outside Canada before a certain date to be prescribed by regulation. If the new variety is in a category "recently prescribed" to the list of protected categories, the Act provides that any sale of the variety in Canada within a yet to be prescribed pre-application grace period will not invalidate the application.
Priority and Dating of the Application
The right to obtain plant breeders' rights as between conflicting applicants is to be given to the application with the earliest effective filing date. If a Canadian application is made within twelve months after the date of a corresponding application in a Union or bilateral agreement country, the applicant can claim priority and the Canadian application will be accorded the filing date of the earlier-filed application.
Publication of Applications
The Act provides for publication of the particulars of an application prior to full examination of the application. Application particulars will be published in either the Canada Gazette or, if numbers of applications warrant, a separate Plant Varieties Journal.
Opposition
Section 22 allows any person to file an objection to an application for plant breeders' rights following publication. Provision is made for the objector and the applicant to make representations to the Commissioner.
Examination of Applications
The Commissioner may summarily reject the application if it is incompatible with the requirements of the Act. If it is not summarily rejected, particulars of the application are published. After publication, if no objections are outstanding, the Commissioner again examines the application, conducting tests and trials (at the applicant's expense) as deemed necessary. Section 24 of the Act allows the Commissioner to rely on the results of foreign tests and trials.
Interim Protection Prior to Grant
An applicant for plant breeder's rights can apply for a "protective direction", which allows the applicant to prosecute infringers while the application is still pending. The same remedies can be obtained as are available against an infringer in the normal case. The applicant for a protective direction must undertake not to sell any propagating material of the variety while the protective direction is in force, unless the sale is made for research purposes, as part of a sale of plant breeders' rights, or for accumulating stock for subsequent resale.
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