IP Protection for Plant Varieties – Plant Breeders’ RightsCanada is a hub for agricultural innovation including the development of new plant varieties for commercially valuable species such as hemp, canola, wheat, barley, flax, among others. New plant varieties can be generated by breeding of existing varieties (i.e. hybridization) or by genetic modification techniques including mutagenesis, insertion of a transgene, or genome editing methods such as CRISPR. New varieties can display commercially valuable traits including, for example, improved plant vigor and yield, resistance to pests or disease, and a desired appearance or nutrient profile.Plant Breeders’ Rights is a form of intellectual property (IP) that can be used to protect new plant varieties in Canada. In this article, we’ll discuss the basics of Plant Breeders’ Rights and how it can be obtained.What can be protected by Plant Breeders’ Rights?Plant Breeders’ Rights can be used to protect new plant varieties, including both genetically modified plant varieties and varieties generated by more traditional breeding techniques. To quality for PBR protection, a plant variety must meet the following requirements:New – The variety cannot have been sold in Canada for more than 1 year or sold outside of Canada for more than 4 years (or more than 6 years for trees and vines);Distinct – The variety must be measurably different from all other known varieties;Uniform – The variety must be sufficiently consistent in its relevant characteristics; andStable – The variety must remain true to its description over successive generations.What protection does Plant Breeders’ Rights provide?Plant Breeders’ Rights give the PBR holder (i.e. owner) the exclusive control over the propagating material of the plant variety including seeds, cuttings, and any other reproductive or vegetative material for propagation. The PBR holder has the exclusive right to produce, reproduce, condition, sell, export, import, or stock the propagating material as well as the exclusive right to use the variety to commercially produce new varieties by hybridization. The PBR holder also has the ability to authorize others to be able to perform such activities.What is the application process?To apply for PBR protection, an application is submitted to the Plant Breeders’ Rights Office (PBRO; under the Canadian Food Inspection Agency) where it is examined to determine if it meets the necessary requirements. As part of the examination process, 1-2 years of comparative tests and trials are typically required in which the new variety is grown alongside known reference varieties. However, this requirement may be reduced or eliminated if similar trials have already been conducted in another country and those results can be purchased for use in Canada.Following completion of the trials, the variety description is published in the Plant Varieties Journal and third parties have the opportunity to object to the application. If no objections are received within 6 months, a Certificate of Plant Breeders’ Rights is issued.How long does the protection last?The term of PBR is 25 years (for the varieties of trees or vines) and 20 years (for all other types of plants) from the date the Certificate is issued. To maintain protection, annual renewal fees must be paid and the propagating material of the variety must be maintained. The PBRO may require that the PBR holder provide a sample of propagating material, or allow inspection of their facilities, to confirm that the variety is being maintained.Can a plant variety be patented instead of (or in addition to) PBR?In Canada, “higher life forms” such as plants are not considered to be patent eligible subject matter. Thus, a plant or plant variety itself cannot be patented.However, for plant varieties produced by genetic modification techniques, it may still be possible to indirectly obtain patent protection for the genetically modified plant. For example, the process or method by which the genetically modified plant is produced may be patent eligible. In addition, if the genetically modified plant carries a novel transgene, the specific structure and/or sequence of the transgene, as well as the plant cell line that contains the transgene, may also be patent eligible.The rights granted by a patent are different from those granted by PBR. An issued patent gives its owner the right to exclude others from making, selling, or using a patented invention. The term of a patent is typically 20 years from the date the patent application was filed, subject to payment of annual maintenance fees. Unlike PBR, there is no requirement for the invention to be practiced throughout the patent term.ConclusionsA new plant variety can have significant commercial value and it is important to choose an appropriate IP strategy to protect it. Plant Breeders’ Rights or patent protection may be suitable options depending on the nature of the variety. If you are developing a new plant variety and are interested in exploring Plant Breeders’ Rights or patents further, our Intellectual Property team is happy to assist you. Disclaimer: This article is to be used for educational and non-commercial purposes only. Parlee McLaws LLP does not intend for this article to be a source of legal advice. Please seek the advice of a lawyer before choosing to act on any of the information contained in this article.