- SHORT TITLE
- INTERPRETATION
- HER MAJESTY
- APPLICATION
- PLANT BREEDER™S RIGHTS
- APPLICATIONS FOR PLANT BREEDER™S RIGHTS
- 7(1) Entitlement to apply for plant breeder’s rights
- 8 Required citizenship, residence or location of registered office
- 9(1) How application to be made
- 10(1) Priority and dating of application
- 11(1) Priority based on preceding application in country of Union or agreement country
- 12(1) Priority conditional on residence, etc.
- 13 Priority established over previous grant
- DENOMINATIONS OF NEW VARIETIES
- SUMMARY DISPOSITION OF APPLICATIONS
- PROTECTIVE DIRECTIONS
- CONSIDERATION AND DISPOSITION OF APPLICATIONS
- GRANT, REFUSAL AND DISPOSAL OF PLANT BREEDER™S RIGHTS
- MAINTENANCE OF PROPAGATING MATERIAL
- ASSIGNMENT OF PLANT BREEDER™S RIGHTS
- COMPULSORY LICENCES
- ANNULMENT AND REVOCATION OF GRANTS
- SURRENDER OF PLANT BREEDER™S RIGHTS
- AGENTS
- CIVIL REMEDIES
- 41(1) Infringement
- 42(1) Jurisdiction of provincial courts
- 43(1) Jurisdiction of Federal Court
- 44 Restriction
- 45(1) Holder may be required to take proceedings
- 46 Defence
- 47 Admissibility of certificates given outside Canada
- 48 Commissioner’s costs
- 49(1) Recording judicial invalidation
- 50(1) Appeal to Federal Court
- 51(1) Transmission of documents to Federal Court
- 52 Judgments to be filed
- OFFENCES
- PLANT BREEDERS™ RIGHTS OFFICE
- RECORDS
- PUBLICATION
- ADVISORY COMMITTEE
- REGULATIONS
- SEEDS ACT
- REVIEW OF ACT
- CONSEQUENTIAL AMENDMENTS
- COMING INTO FORCE
Plant Breeders’ Rights Act
1990, c. 20
[P-14.6]
An Act respecting plant breeders’ rights
[Assented to 19th June, 1990]
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
SHORT TITLE
1 Short title
1. This Act may be cited as the Plant Breeders’ Rights Act.
INTERPRETATION
2(1) Definitions
2.–
(1) In this Act,
2(1) “advertise” « publicité »
“advertise”, in relation to a plant variety, means to distribute to members of the public or to bring to their notice, in any manner whatever, any written, illustrated, visual or other descriptive material, oral statement, communication, representation or reference with the intention of promoting the sale of any propagating material of the plant variety, encouraging the use thereof or drawing attention to the nature, properties, advantages or uses thereof or to the manner in which or the conditions on which it may be purchased or otherwise acquired;
2(1) “advisory committee” « comité consultatif »
“advisory committee” means such advisory committee as may be constituted pursuant to
subsection 73(1);
2(1) “agent” « mandataire »
“agent”, in relation to an applicant or a holder of plant breeder’s rights, means a person who is duly authorized by the applicant or holder to act, for the purposes of this Act, on behalf of the applicant or holder and to whom as a person so authorized recognition is, consistent with any requirements prescribed therefor, accorded by the Commissioner;
2(1) “agreement country” « pays signataire »
“agreement country” means
(a) any country,
(b) any colony, protectorate or territory subject to the authority of another country or under its suzerainty, or
(c) any territory over which another country exercises a mandate or trusteeship,
that is prescribed as an agreement country with a view to the fulfilment of a bilateral agreement concerning the rights of plant breeders made between Canada and that country;
2(1) “applicant” « requérant »
“applicant” means a person by or on behalf of whom an application for the grant of plant breeder’s rights is made pursuant to section 7;
2(1) “breeder” « obtenteur »
“breeder”, in respect of a plant variety, means - (a)
- where any person acting within the scope of the person’s duties as an officer, servant or employee of another person originates or discovers the plant variety, that other person, and
- (b)
- where any person not acting as described in paragraph (a) originates or discovers the plant variety, that person;
2(1) “category” « catégorie »
“category” means a species or any class within a species;
2(1) “Commissioner” « directeur »
“Commissioner” means the Commissioner of Plant Breeders’ Rights appointed pursuant to subsection 56(1) and, except in section 56, includes any person acting under a written authorization given pursuant to section 58;
2(1) “country of the Union” « État de l’Union »
“country of the Union” means
(a) any country,
(b) any colony, protectorate or territory subject to the authority of another country or under its suzerainty, or
(c) any territory over which another country exercises a mandate or trusteeship,
that is prescribed as a country of the Union with a view to the fulfilment of a convention constituting a Union for protecting new varieties of plants that includes Canada among its members;
2(1) “holder” « titulaire »
“holder”, in relation to plant breeder’s rights, means the person whom the register indicates, with respect to a plant variety, is entitled to the plant breeder’s rights respecting that variety by a grant made under section 27 or is an assignee of, or other successor in title to, the rights granted under that section in respect of that variety;
2(1) “index” « répertoire »
“index” means the index prepared pursuant to section 62;
2(1) “infringement” « violation »
“infringement”, in relation to plant breeder’s rights, means the doing, without authority under this Act, of anything that the holder of those rights has the exclusive right to do as provided in subsection 5(1);
2(1) “legal representative” « représentant légal »
“legal representative”, in respect of a breeder of a plant variety, includes the breeder’s executor or administrator and any assignee of, or other successor in title to, the rights of the breeder in respect of the plant variety;
2(1) “Minister” « ministre »
“Minister” means the Minister of Agriculture and Agri-Food;
2(1) “new variety” « obtention végétale »
“new variety” means a plant variety that complies with the requirements of section 4;
2(1) “plant breeder’s rights” « certificat d’obtention »
“plant breeder’s rights” means the rights referred to in subsection 5(1);
2(1) “plant variety” « variété végétale »
“plant variety” means any cultivar, clone, breeding line or hybrid of a prescribed category of plant that can be cultivated;
“prescribed” Version anglaise seulement
“prescribed” means prescribed by regulation;
2(1) “propagating material” « matériel de multiplication »
“propagating material” means any reproductive or vegetative material for propagation, whether by sexual or other means, of a plant variety, and includes seeds for sowing and any whole plant or part thereof that may be used for propagation;
2(1) “protective direction” « certificat temporaire »
“protective direction” means a protective direction under section 19;
2(1) “register” « registre »
“register” means the register kept pursuant to section 63;
2(1) “sell” « vente »
“sell” includes agree to sell, or offer, advertise, keep, expose, transmit, send, convey or deliver for sale, or agree to exchange or to dispose of to any person in any manner for a consideration.
2(2) Prescribing various countries of the Union or agreement countries
(2) Notwithstanding anything in this Act, a country of the Union or an agreement country may be prescribed for all or any of the provisions of this Act or the regulations in so far as those provisions have reference, express or implied, to such a country.
1990, c. 20, s. 2; 1994, c. 38, s. 25.
HER MAJESTY
3 Act binds Crown
3. This Act is binding on Her Majesty in right of Canada or a province.
APPLICATION
4(1) Varieties to which Act applies
4.–
(1) The varieties of plants in respect of which this Act provides for the granting of plant breeders’ rights are restricted to varieties belonging to prescribed categories and found, pursuant to subsection 27(1), to be new varieties.
4(2) New varieties
(2) A plant variety is a new variety if it - (a)
- is, by reason of one or more identifiable characteristics, clearly distinguishable from all varieties the existence of which is a matter of common knowledge at the effective date of application for the grant of the plant breeder’s rights respecting that plant variety;
- (b)
- is stable in its essential characteristics in that after repeated reproduction or propagation or, where the applicant has defined a particular cycle of reproduction or multiplication, at the end of each cycle, remains true to its description; and
- (c)
- is, having regard to the particular features of its sexual reproduction or vegetative propagation, a sufficiently homogeneous variety.
4(3) Definition of “sufficiently homogeneous variety”
(3) In paragraph (2)(c), “sufficiently homogeneous variety” means such a variety that, in the event of its sexual reproduction or vegetative propagation in substantial quantity, any variations in characteristics of plants so reproduced or propagated are predictable, capable of being described and commercially acceptable.
PLANT BREEDER’S RIGHTS
5(1) Nature of plant breeder’s rights
5.–
(1) Subject to this Act, the holder of the plant breeder’s rights respecting a plant variety has the exclusive right - (a)
- to sell, and produce in Canada for the purpose of selling, propagating material, as such, of the plant variety;
- (b)
- 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;
- (c)
- 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
- (d)
- to authorize, conditionally or unconditionally, the doing of an act described in paragraphs (a) to (c).
5(2) Exemption
(2) Paragraph (1)(a) does not apply in respect of the sale of propagating material that is not in Canada when it is sold but, if any such propagating material the sale of which to any person is exempted from that paragraph by this subsection is used as propagating material in Canada by that person, an infringement of the exclusive right conferred by virtue of that paragraph is constituted by the purchase and subsequent use of the propagating material by that person, who shall be liable to be proceeded against in respect of that infringement.
5(3) Implications
(3) A sale of propagating material in the exercise of any exclusive right conferred by subsection (1) does not imply that the seller authorizes the purchaser to produce, for the purpose of selling, propagating material as such but, subject to any terms or conditions imposed by the seller, the sale implies that the seller authorizes the purchaser to sell anything sold, in that exercise of the exclusive right, to the purchaser.
5(4) Royalty
(4) Without limiting the generality of paragraph (1)(d) and without prejudice to any rights or privileges of the Crown, where authority is conferred subject to conditions pursuant to that paragraph, whether or not the
holder of the plant breeder’s rights is Her Majesty in right of Canada or a province, the conditions may include a requirement to pay royalty to the holder.
6(1) Term of plant breeder’s rights
6.–
(1) The term of the grant of plant breeder’s rights shall, subject to earlier termination pursuant to this Act, be a period of eighteen years, commencing on the day the certificate of registration is issued under paragraph 27(3)(b).
6(2) Payment of annual fee
(2) A holder of plant breeder’s rights shall, during the term of the grant of those rights, pay to the Commissioner the prescribed annual fee in respect of those rights.
APPLICATIONS FOR PLANT BREEDER’S RIGHTS
7(1) Entitlement to apply for plant breeder’s rights
7.–
(1) Subject to section 8, a breeder of a new variety or a legal representative of the breeder may make an application to the Commissioner for the grant of plant breeder’s rights respecting that variety if - (a)
- in the case of a new variety of a recently prescribed category, neither the breeder nor a legal representative of the breeder sold or concurred in the sale of that variety in Canada before the commencement of such period prior to the date of receipt, by the Commissioner, of the application as is prescribed for the purposes of this paragraph;
- (b)
- in any other case, neither the breeder nor a legal representative of the breeder sold or concurred in the sale of that variety in Canada before the effective date of the application; and
- (c)
- subject to any prescribed exemptions, neither the breeder nor a legal representative of the breeder sold or concurred in the sale of that variety outside Canada before the commencement of such period prior to the date described in paragraph (a) as is prescribed for the purposes of this paragraph.
7(2) Application where breeder’s participation unobtainable for joint application
(2) Where
(a) a new variety is bred by two or more breeders otherwise than independently of each other, and
(b) either or any of the persons entitled to make an application for the grant of the plant breeder’s rights respecting that variety refuses to do so or information of the whereabouts of either or any of those persons cannot be obtained through diligent inquiry on the part of the remainder of them,
the remainder of those persons may make an application for that grant.
8 Required citizenship, residence or location of registered office
8. A person is only eligible to apply for the grant of plant breeder’s rights if the person is a citizen of, or is resident or has a registered office in, Canada or a country of the Union or an agreement country.
9(1) How application to be made
9.–
(1) An application for the grant of any plant breeder’s rights must
1990, c. 20
[P-14.6]
An Act respecting plant breeders’ rights
[Assented to 19th June, 1990]
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
1. This Act may be cited as the Plant Breeders’ Rights Act.
2.–
(1) In this Act,
“advertise”, in relation to a plant variety, means to distribute to members of the public or to bring to their notice, in any manner whatever, any written, illustrated, visual or other descriptive material, oral statement, communication, representation or reference with the intention of promoting the sale of any propagating material of the plant variety, encouraging the use thereof or drawing attention to the nature, properties, advantages or uses thereof or to the manner in which or the conditions on which it may be purchased or otherwise acquired;
“advisory committee” means such advisory committee as may be constituted pursuant to
subsection 73(1);
“agent”, in relation to an applicant or a holder of plant breeder’s rights, means a person who is duly authorized by the applicant or holder to act, for the purposes of this Act, on behalf of the applicant or holder and to whom as a person so authorized recognition is, consistent with any requirements prescribed therefor, accorded by the Commissioner;
“agreement country” means
(a) any country,
(b) any colony, protectorate or territory subject to the authority of another country or under its suzerainty, or
(c) any territory over which another country exercises a mandate or trusteeship,
that is prescribed as an agreement country with a view to the fulfilment of a bilateral agreement concerning the rights of plant breeders made between Canada and that country;
“applicant” means a person by or on behalf of whom an application for the grant of plant breeder’s rights is made pursuant to section 7;
“breeder”, in respect of a plant variety, means “category” means a species or any class within a species;
“Commissioner” means the Commissioner of Plant Breeders’ Rights appointed pursuant to subsection 56(1) and, except in section 56, includes any person acting under a written authorization given pursuant to section 58;
2(1) “country of the Union” « État de l’Union »
“country of the Union” means
(a) any country,
(b) any colony, protectorate or territory subject to the authority of another country or under its suzerainty, or
(c) any territory over which another country exercises a mandate or trusteeship,
that is prescribed as a country of the Union with a view to the fulfilment of a convention constituting a Union for protecting new varieties of plants that includes Canada among its members;
“holder”, in relation to plant breeder’s rights, means the person whom the register indicates, with respect to a plant variety, is entitled to the plant breeder’s rights respecting that variety by a grant made under section 27 or is an assignee of, or other successor in title to, the rights granted under that section in respect of that variety;
2(1) “index” « répertoire »
“index” means the index prepared pursuant to section 62;
“infringement”, in relation to plant breeder’s rights, means the doing, without authority under this Act, of anything that the holder of those rights has the exclusive right to do as provided in subsection 5(1);
“legal representative”, in respect of a breeder of a plant variety, includes the breeder’s executor or administrator and any assignee of, or other successor in title to, the rights of the breeder in respect of the plant variety;
“Minister” means the Minister of Agriculture and Agri-Food;
“new variety” means a plant variety that complies with the requirements of section 4;
“plant breeder’s rights” means the rights referred to in subsection 5(1);
“plant variety” means any cultivar, clone, breeding line or hybrid of a prescribed category of plant that can be cultivated;
“prescribed” means prescribed by regulation;
“propagating material” means any reproductive or vegetative material for propagation, whether by sexual or other means, of a plant variety, and includes seeds for sowing and any whole plant or part thereof that may be used for propagation;
“protective direction” means a protective direction under section 19;
2(1) “register” « registre »
“register” means the register kept pursuant to section 63;
“sell” includes agree to sell, or offer, advertise, keep, expose, transmit, send, convey or deliver for sale, or agree to exchange or to dispose of to any person in any manner for a consideration.
(2) Notwithstanding anything in this Act, a country of the Union or an agreement country may be prescribed for all or any of the provisions of this Act or the regulations in so far as those provisions have reference, express or implied, to such a country.
1990, c. 20, s. 2; 1994, c. 38, s. 25.
3. This Act is binding on Her Majesty in right of Canada or a province.
4.–
(1) The varieties of plants in respect of which this Act provides for the granting of plant breeders’ rights are restricted to varieties belonging to prescribed categories and found, pursuant to subsection 27(1), to be new varieties.
(2) A plant variety is a new variety if it (3) In paragraph (2)(c), “sufficiently homogeneous variety” means such a variety that, in the event of its sexual reproduction or vegetative propagation in substantial quantity, any variations in characteristics of plants so reproduced or propagated are predictable, capable of being described and commercially acceptable.
5.–
(1) Subject to this Act, the holder of the plant breeder’s rights respecting a plant variety has the exclusive right (2) Paragraph (1)(a) does not apply in respect of the sale of propagating material that is not in Canada when it is sold but, if any such propagating material the sale of which to any person is exempted from that paragraph by this subsection is used as propagating material in Canada by that person, an infringement of the exclusive right conferred by virtue of that paragraph is constituted by the purchase and subsequent use of the propagating material by that person, who shall be liable to be proceeded against in respect of that infringement.
(3) A sale of propagating material in the exercise of any exclusive right conferred by subsection (1) does not imply that the seller authorizes the purchaser to produce, for the purpose of selling, propagating material as such but, subject to any terms or conditions imposed by the seller, the sale implies that the seller authorizes the purchaser to sell anything sold, in that exercise of the exclusive right, to the purchaser.
(4) Without limiting the generality of paragraph (1)(d) and without prejudice to any rights or privileges of the Crown, where authority is conferred subject to conditions pursuant to that paragraph, whether or not the
holder of the plant breeder’s rights is Her Majesty in right of Canada or a province, the conditions may include a requirement to pay royalty to the holder.
6.–
(1) The term of the grant of plant breeder’s rights shall, subject to earlier termination pursuant to this Act, be a period of eighteen years, commencing on the day the certificate of registration is issued under paragraph 27(3)(b).
(2) A holder of plant breeder’s rights shall, during the term of the grant of those rights, pay to the Commissioner the prescribed annual fee in respect of those rights.
7.–
(1) Subject to section 8, a breeder of a new variety or a legal representative of the breeder may make an application to the Commissioner for the grant of plant breeder’s rights respecting that variety if (2) Where
(a) a new variety is bred by two or more breeders otherwise than independently of each other, and
(b) either or any of the persons entitled to make an application for the grant of the plant breeder’s rights respecting that variety refuses to do so or information of the whereabouts of either or any of those persons cannot be obtained through diligent inquiry on the part of the remainder of them,
the remainder of those persons may make an application for that grant.
8. A person is only eligible to apply for the grant of plant breeder’s rights if the person is a citizen of, or is resident or has a registered office in, Canada or a country of the Union or an agreement country.
9.–
(1) An application for the grant of any plant breeder’s rights must SHORT TITLE
1 Short title
INTERPRETATION
2(1) Definitions
2(1) “advertise” « publicité »
2(1) “advisory committee” « comité consultatif »
2(1) “agent” « mandataire »
2(1) “agreement country” « pays signataire »
2(1) “applicant” « requérant »
2(1) “breeder” « obtenteur »
2(1) “category” « catégorie »
2(1) “Commissioner” « directeur »
2(1) “holder” « titulaire »
2(1) “infringement” « violation »
2(1) “legal representative” « représentant légal »
2(1) “Minister” « ministre »
2(1) “new variety” « obtention végétale »
2(1) “plant breeder’s rights” « certificat d’obtention »
2(1) “plant variety” « variété végétale »
“prescribed” Version anglaise seulement
2(1) “propagating material” « matériel de multiplication »
2(1) “protective direction” « certificat temporaire »
2(1) “sell” « vente »
2(2) Prescribing various countries of the Union or agreement countries
HER MAJESTY
3 Act binds Crown
APPLICATION
4(1) Varieties to which Act applies
4(2) New varieties
4(3) Definition of “sufficiently homogeneous variety”
PLANT BREEDER’S RIGHTS
5(1) Nature of plant breeder’s rights
5(2) Exemption
5(3) Implications
5(4) Royalty
6(1) Term of plant breeder’s rights
6(2) Payment of annual fee
APPLICATIONS FOR PLANT BREEDER’S RIGHTS
7(1) Entitlement to apply for plant breeder’s rights
7(2) Application where breeder’s participation unobtainable for joint application
8 Required citizenship, residence or location of registered office
9(1) How application to be made