Plant Breeders’ Rights Act

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• 1Short title

  This Act may be cited as the Plant Breeders’ Rights Act.

• 2Definitions
• 2(1)

  In this Act,

• 2(1)[p3]

  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; (publicité)

• 2(1)[p4]

  advisory committee means such advisory committee as may be constituted pursuant to subsection 73(1); (comité consultatif)

• 2(1)[p5]

  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; (mandataire)

• 2(1)[p6]

  agreement country means any of the following entities that is designated by the regulations as an agreement country with a view to the fulfilment of an agreement concerning the rights of plant breeders made between Canada and that entity:

• 2(1)[p6](a)

  a country,

• 2(1)[p6](b)

  a colony, protectorate or territory subject to the authority of another country or under its suzerainty,

• 2(1)[p6](c)

  a territory over which another country exercises a mandate or trusteeship; (pays signataire)

• 2(1)[p10]

  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; (requérant)

• 2(1)[p11]

  breeder, in respect of a plant variety, means

• 2(1)[p11](a)

  any person who originates or who discovers and develops the plant variety, or

• 2(1)[p11](b)

  any person in respect of whom an officer, servant or employee, while acting within the scope of his or her duties as the officer, servant or employee of that person, originates or discovers and develops the plant variety; (obtenteur)

• 2(1)[p14]

  category means, in relation to a plant, a species, a grouping of species or any class within a species; (catégorie)

• 2(1)[p15]

  Commissioner means the Commissioner of Plant Breeders’ Rights designated pursuant to subsection 56(2) and, except in section 56, includes any person acting under a written authorization given pursuant to section 58; (directeur)

• 2(1)[p16]

  country of the Union means any country or other entity that is a party to the International Convention for the Protection of New Varieties of Plants of December 2, 1961, as amended from time to time, or any WTO Member as defined in subsection 2(1) of the World Trade Organization Agreement Implementation Act; (État de l’Union)

• 2(1)[p17]

  document means anything on which information that is capable of being understood by a person, or read by a computer or other device, is recorded or marked; (document)

• 2(1)[p18]

  filing date means, in respect of an application, the date specified in the notice given under subsection 10(2); (date de dépôt)

• 2(1)[p19]

  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; (titulaire)

• 2(1)[p20]

  index means the index prepared pursuant to section 62; (répertoire)

• 2(1)[p21]

  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 right to do under any of sections 5 to 5.2; (violation)

• 2(1)[p22]

  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; (représentant légal)

• 2(1)[p23]

  Minister means the Minister of Agriculture and Agri-Food; (ministre)

• 2(1)[p24]

  new variety means a plant variety that is described in subsection 4(3); (obtention végétale)

• 2(1)[p25]

  person has the same meaning as in section 2 of the Criminal Code; (personne)

• 2(1)[p26]

  plant breeder’s rights, in relation to a plant variety, means the rights that are granted under section 27; (certificat d’obtention)

• 2(1)[p27]

  plant variety means any plant grouping within a single botanical taxon of the lowest known rank that, whether or not the conditions for the grant of plant breeder’s rights are fully met, is capable of being

• 2(1)[p27](a)

  defined by the expression of the characteristics resulting from a given genotype or combination of genotypes,

• 2(1)[p27](b)

  distinguished from any other plant grouping by the expression of at least one of those characteristics, and

• 2(1)[p27](c)

  considered as a unit with regard to its suitability for being reproduced unchanged; (variété végétale)

• 2(1)[p31]

  prescribed means prescribed by regulation; (Version anglaise seulement)

• 2(1)[p32]

  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; (matériel de multiplication)

• 2(1)[p33]Repealed

  protective direction[Repealed, 2015, c. 2, s. 2]

• 2(1)[p34]

  register means the register kept pursuant to section 63; (registre)

• 2(1)[p35]

  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. (vente)

• 2(2)Repealed

  [Repealed, 2015, c. 2, s. 2]

• 3Act binds Crown

  This Act is binding on Her Majesty in right of Canada or a province.

• 4Eligible plant varieties
• 4(1)

  Plant breeder’s rights may not be granted except in respect of a plant variety that belongs to a prescribed category and meets all of the conditions set out in subsection (2).

• 4(2)Conditions

  Plant breeder’s rights may be granted in respect of a plant variety if it

• 4(2)(a)

  is a new variety;

• 4(2)(b)

  is, by reason of one or more identifiable characteristics, clearly distinguishable from all varieties whose existence is a matter of common knowledge at the filing date of the application for the grant of plant breeder’s rights respecting that plant variety;

• 4(2)(c)

  is stable in its essential characteristics in that after repeated propagation or, if the applicant has defined a particular cycle of propagation, at the end of each cycle it remains true to its description; and

• 4(2)(d)

  is, having regard to the particular features of its sexual reproduction or vegetative propagation, a sufficiently homogeneous variety.

• 4(3)New variety

  A plant variety is a new variety if the propagating or harvested material of that variety has not been sold by, or with the concurrence of, the breeder of that variety or the breeder’s legal representative

• 4(3)(a)

  in Canada, before

• 4(3)(a)(i)

  the prescribed period preceding the filing date of the application for the grant of plant breeder’s rights, in the case of a variety belonging to a recently prescribed category, and

• 4(3)(a)(ii)

  the period of one year before the filing date of the application for the grant of plant breeder’s rights, in the case of any other variety; and

• 4(3)(b)

  outside Canada, before

• 4(3)(b)(i)

  the period of six years before the filing date of the application for the grant of plant breeder’s rights, in the case of a tree or vine, and

• 4(3)(b)(ii)

  the period of four years before the filing date of the application for the grant of plant breeder’s rights, in any other case.

• 4(4)Definition of sufficiently homogeneous variety

  For the purposes of paragraph (2)(d), sufficiently homogeneous variety means a variety for which, in the event of its sexual reproduction or vegetative propagation in substantial quantity, any variations in characteristics of the plants so reproduced or propagated are predictable, capable of being described and commercially acceptable.

• 4(5)Regulations

  The Governor in Council may make regulations prescribing classes of sales that are not to be considered sales for the purposes of subsection (3).

• 5Nature of plant breeder’s rights
• 5(1)

  Subject to the other provisions of this Act and the regulations, the holder of the plant breeder’s rights respecting a plant variety has the exclusive right

• 5(1)(a)

  to produce and reproduce propagating material of the variety;

• 5(1)(b)

  to condition propagating material of the variety for the purposes of propagating the variety;

• 5(1)(c)

  to sell propagating material of the variety;

• 5(1)(d)

  to export or import propagating material of the variety;

• 5(1)(e)

  to make repeated use of propagating material of the variety to produce commercially another plant variety if the repetition is necessary for that purpose;

• 5(1)(f)

  in the case of a variety to which ornamental plants belong, if those plants are normally marketed for purposes other than propagation, to use any such plants or parts of those plants as propagating material for the production of ornamental plants or cut flowers;

• 5(1)(g)

  to stock propagating material of the variety for the purpose of doing any act described in any of paragraphs (a) to (f); and

• 5(1)(h)

  to authorize, conditionally or unconditionally, the doing of any act described in any of paragraphs (a) to (g).

• 5(2)Royalty

  Without prejudice to any rights or privileges of the Crown, an authorization conferred under paragraph 1(h) may be subject to a condition to pay royalty to the holder of the plant breeder’s rights whether or not the holder is Her Majesty in right of Canada or a province.

• 5.1Rights respecting harvested materials

  Subject to the other provisions of this Act and the regulations, the holder of the plant breeder’s rights respecting a plant variety has the exclusive right to do any act described in any of paragraphs 5(1)(a) to (h) in respect of any harvested material, including whole plants or parts of plants, that is obtained through the unauthorized use of propagating material of the plant variety, unless the holder had reasonable opportunity to exercise his or her rights under section 5 in relation to that propagating material and failed to do so before claiming rights under this section.

• 5.2Rights respecting certain other varieties
• 5.2(1)

  Subject to the other provisions of this Act and the regulations, the holder of the plant breeder’s rights respecting a plant variety has the exclusive right to do any act described in any of paragraphs 5(1)(a) to (h) in respect of

• 5.2(1)(a)

  any other plant variety that is essentially derived from the plant variety if the plant variety is not itself essentially derived from another plant variety;

• 5.2(1)(b)

  any other plant variety that is not clearly distinguishable from the plant variety; and

• 5.2(1)(c)

  any other plant variety whose production requires the repeated use of the plant variety.

• 5.2(2)Meaning of essentially derived

  For the purpose of paragraph (1)(a), a plant variety is essentially derived from another plant variety (in this subsection referred to as the “initial variety”) if

• 5.2(2)(a)

  it is predominantly derived from the initial variety or from a plant variety that is itself predominantly derived from the initial variety and it retains the essential characteristics that result from the genotype or combination of genotypes of the initial variety;

• 5.2(2)(b)

  it is clearly distinguishable from the initial variety; and

• 5.2(2)(c)

  it conforms to the initial variety in the expression of the essential characteristics that result from the genotype or combination of genotypes of the initial variety, except for the differences that result from its derivation from the initial variety.

• 5.3Non-application of rights
• 5.3(1)

  The rights referred to in sections 5 to 5.2 do not apply to any act done

• 5.3(1)(a)

  privately and for non-commercial purposes;

• 5.3(1)(b)

  for experimental purposes; or

• 5.3(1)(c)

  for the purpose of breeding other plant varieties.

• 5.3(2)Farmers’ privilege

  The rights referred to in paragraphs 5(1)(a) and (b) and — for the purposes of exercising those rights and the right to store — the right referred to in paragraph 5(1)(g) do not apply to harvested material of the plant variety that is grown by a farmer on the farmer’s holdings and used by the farmer on those holdings for the sole purpose of propagation of the plant variety.

• 5.4Non-application of rights
• 5.4(1)

  The rights referred to in sections 5 to 5.2 do not apply to any act done in relation to material of a plant variety after the material has been sold in Canada by the holder or with the holder’s consent, unless that act involves

• 5.4(1)(a)

  the further propagation of the plant variety; or

• 5.4(1)(b)

  the export of material of the plant variety to a country that does not protect varieties of the plant genus or species to which the exported plant variety belongs if the exported material is not intended for consumption.

• 5.4(2)Definition of material

  For the purpose of subsection (1), material means propagating material and harvested material, including whole plants and parts of plants.

• 6Term of plant breeder’s rights
• 6(1)

  The term of the grant of plant breeder’s rights, subject to earlier termination under this Act, shall be a period of 25 years in the case of a tree, a vine or any category specified by the regulations and 20 years in any other case. The period begins on the day on which the certificate of plant breeder’s rights is issued.

• 6(2)Payment of annual fee

  A holder of plant breeder’s rights shall, during the term of the grant of those rights, pay to the Commissioner, within the prescribed time, the prescribed annual fee.

• 7Application for plant breeder’s rights
• 7(1)

  A breeder or the breeder’s legal representative may make an application to the Commissioner for the grant of plant breeder’s rights respecting a plant variety if, in the case of an individual, the breeder or legal representative is a citizen of, or is resident in, Canada, a country of the Union or an agreement country or, in the case of a person that is not an individual, the breeder or legal representative has an establishment in Canada, a country of the Union or an agreement country.

• 7(2)If two or more breeders

  If a plant variety is bred by two or more breeders otherwise than independently of each other, the persons entitled to make an application for the grant of plant breeder’s rights respecting that variety may make an application jointly and, if any of those persons refuses to do so or information regarding their whereabouts cannot be obtained through diligent inquiry, the remainder of those persons may make an application for that grant.

• 8Repealed

  [Repealed, 2015, c. 2, s. 6]

• 9How application to be made
• 9(1)

  An application for the grant of plant breeder’s rights must

• 9(1)(a)

  include the prescribed information and be made in the prescribed manner;

• 9(1)(b)

  be accompanied by the prescribed fee;

• 9(1)(c)

  be supported by the prescribed documents and any other prescribed material; and

• 9(1)(d)

  in the case where the applicant wishes to request that those rights be exempted from compulsory licensing under subsection 32(1), include the request and his or her reasons for it.

• 9(2)Agent required for non-resident applicant

  An applicant that, in the case of an individual, is not resident in Canada and, in the case of a person that is not an individual, does not have an establishment in Canada shall submit the application through an agent resident in Canada.

• 10Filing date of application
• 10(1)

  Subject to subsection 11(1), the filing date of an application for the grant of plant breeder’s rights is the date on which the Commissioner has received, in respect of the application, all of the information, fees, documents and other materials that are required by subsection 9(1).

• 10(2)Notice of filing date

  The Commissioner shall send to the applicant a notice specifying the filing date.

• 10.1Priority when breeders breed independently

  In the case of two or more applications respecting a plant variety whose breeders bred it independently of each other, priority shall be given to the application with the earliest filing date. If the filing dates of the applications are the same, priority shall be given to the application pertaining to the breeder that was first in a position to apply for the plant breeder’s rights respecting the variety or that would have been first in the position to do so if the provisions under this Act for so doing had always been in force.

• 11Priority when preceding application in country of Union or agreement country
• 11(1)

  If an application made under section 7 is preceded by another application made in a country of the Union or an agreement country for protection in respect of the same plant variety and the same breeder, the filing date of the application made under section 7 is deemed to be the date on which the preceding application was made in that country of the Union or agreement country and, consequently, the applicant is entitled to priority in Canada despite any intervening use, publication or application respecting the variety if

• 11(1)(a)

  the application is made in the prescribed form within 12 months after the date on which the preceding application was made in that country of the Union or agreement country; and

• 11(1)(b)

  the application is accompanied by a claim respecting the priority and by the prescribed fee.

• 11(2)Confirmation of claim to priority

  A claim respecting priority based on a preceding application made in a country of the Union or an agreement country shall not be allowed unless, within three months after the date that would be the filing date of the application if there were no claim respecting priority, the claim is confirmed by filing with the Commissioner a copy, certified as correct by the appropriate authority in that country of the Union or agreement country and accompanied by an English or French translation of the certified copy, if made in any other language, of each document that constituted the preceding application.

• 11(3)Supporting evidence

  An applicant that is given priority shall provide, within a period of three years after the date on which the preceding application was made in the country of the Union or agreement country, evidence that the applicant has begun the tests and trials with the plant variety referred to in subsection 23(2).

• 11(4)Two or more preceding applications

  If an application made under section 7 is preceded by two or more applications made in different countries of the Union or agreement countries for protection in respect of the same plant variety and the same breeder, only the first of those preceding applications is to be taken into account for the purposes of subsection (1).

• 12Priority conditional on residence, etc.
• 12(1)

  No claim referred to in paragraph 11(1)(b) shall be based on any preceding application unless it was made by a person who, at the time of the application, was entitled to make an application under subsection 7(1).

• 12(2)When previous application disregarded

  For the purposes of subsection 11(1), no account shall be taken of an application that was made in a country outside Canada at a time when the plant variety to which the application relates did not belong to a prescribed category.

• 13Priority established over previous grant

  Where priority for an application is established pursuant to this Act, the Commissioner shall refuse any application against which the priority is established or, if the priority against it is established after granting on it any plant breeder’s rights, the Commissioner shall annul the grant and section 36 and paragraph 70(3)(b) apply, with such modifications as the circumstances require, in respect of the annulment.

• 14Designation of denominations
• 14(1)

  A plant variety in respect of which an application for the grant of plant breeder’s rights is made shall be designated by means of a denomination proposed by the applicant and approved by the Commissioner.

• 14(2)Rejection of proposed denomination

  Where a denomination is proposed pursuant to subsection (1), the Commissioner may, during the pendency of the application referred to in that subsection, reject the proposed denomination, if considered unsuitable for any reasonable cause by the Commissioner, and direct the applicant to submit a suitable denomination instead.

• 14(3)Suitable denomination

  A denomination, in order to be suitable pursuant to this section, must conform to the prescribed requirements and must not be such as to be likely to mislead or to cause confusion concerning the characteristics, value or identity of the variety in question or the identity of its breeder.

• 14(4)International uniformity of denomination

  A denomination that the Commissioner approves for any plant variety in respect of which protection has been granted by, or an application for protection has been submitted to, the appropriate authority in a country of the Union or an agreement country must, subject to subsections (2), (3) and (5), be the same as the denomination with reference to which that protection has been granted or that application submitted.

• 14(5)Change of denomination

  A denomination approved by the Commissioner pursuant to this section may be changed with the Commissioner’s approval in the prescribed circumstances and manner.

• 14(6)Denomination must be recognizable

  Where a trademark, trade name or other similar indication is used in association with a denomination approved by the Commissioner pursuant to this section, the denomination must be easily recognizable.

• 15Approved denomination to be used exclusively

  After the grant of plant breeder’s rights respecting any plant variety, and even after the expiry of the term of the grant of those rights, every person who is designating the variety for the purposes of the sale of propagating material of the variety shall use the denomination approved by the Commissioner.

• 16Prior rights not prejudiced

  Nothing in section 14 or 15 authorizes or requires any person to use, or the Commissioner to approve any person’s use of, a denomination to the prejudice of any prior right of another person to the use of any designation.

• 16.1Direction to change denomination

  If, after the grant of plant breeder’s rights respecting any plant variety, the Commissioner has reasonable grounds to believe that the use of the denomination is unsuitable or that the prior rights of another person are prejudiced by its use, the Commissioner may direct the holder to change the denomination, subject to the Commissioner’s approval of the new denomination.

• 17Rejection of application
• 17(1)

  The Commissioner may reject an application for the grant of plant breeder’s rights if the application is not consistent with any provision of this Act or the regulations, including if the plant variety in respect of which the application is made is not a new variety or if the applicant is not entitled to apply under section 7.

• 17(2)Opportunity for representations before application rejected

  The Commissioner shall not reject the application of a person for the grant of plant breeder’s rights without first giving the person notice of the objections to it and of the grounds for those objections as well as a reasonable opportunity to make representations with respect thereto.

• 18Amendment of application

  An applicant may, within the period prescribed for so doing, or with leave given by the Commissioner at the applicant’s request after the expiry of that period, add to or alter the denomination proposed by that applicant under section 14 or the description of the plant variety for the purposes of the application.

• 19Applicant’s rights
• 19(1)

  Subject to subsection (2), an applicant for the grant of plant breeder’s rights in respect of a plant variety has, as of the filing date of the application, the same rights in respect of the variety that he or she would have under sections 5 to 5.2 if plant breeder’s rights were to be granted.

• 19(2)When rights in effect

  If the applicant is granted plant breeder’s rights, the applicant is, in respect of the period beginning on the filing date and ending on the date on which the plant breeder’s rights are granted, entitled to equitable remuneration from any person who, having been notified in writing by the applicant that the application for those rights has been filed under this Act, carried out acts that require the authorization of the applicant.

• 20Rights extinguished
• 20(1)

  The rights granted under section 19 cease if the application is withdrawn by the applicant, is rejected or refused or is deemed to have been abandoned under section 26.

• 20(2)Reinstatement of application

  Despite subsection (1), if an application that is deemed to have been abandoned is subsequently reinstated, the rights granted under section 19 are deemed never to have ceased.

• 21Filing date — claim respecting priority

  For the purposes of sections 19 and 20, with respect to an applicant that has made a claim respecting priority under section 11, the filing date is the date that would be the filing date of the application if there were no claim respecting priority.

• 22Making objection to application
• 22(1)

  A person who considers that an application in respect of which particulars have been published under section 70 ought to be refused on any ground that constitutes a basis for rejection under section 17 or that a request in the application for an exemption from compulsory licensing ought to be refused, may, on payment of the prescribed fee, file with the Commissioner, within the prescribed period beginning on the date of publication, an objection specifying that person’s reasons. The prescribed fees are not required in the case of an objection made for the purpose of this subsection under the authority of the Minister of Industry after notice under subsection 70(2).

• 22(2)Copy of objection to be sent to applicant

  As soon as practicable after the filing of an objection pursuant to subsection (1), the Commissioner shall send a copy of the objection to the person in respect of whose application the objection is filed, unless the Commissioner rejects the objection in accordance with subsection (3).

• 22(3)Rejection of objection

  Where it appears to the Commissioner that there is good reason for rejecting an objection referred to in subsection (2), the Commissioner shall give the person making the objection a reasonable opportunity to show cause why the objection should not be rejected and, if the person shows the Commissioner no such cause, the Commissioner shall reject the objection and give notice accordingly to the person.

• 22(4)Representations by objector and applicant

  If the objection is not rejected in accordance with subsection (3), the Commissioner shall give the person making the objection and the person in respect of whose application the objection is filed a reasonable opportunity to make representations with respect to the objection and shall take those representations into account before making the decision to refuse the application or to grant plant breeder’s rights with or without an exemption from compulsory licensing.

• 22(5)Upholding objection

  Where the Commissioner upholds an objection made under this section, the Commissioner shall refuse the application or request therein for exemption accordingly.

• 23Consideration of applications
• 23(1)

  After the publication under section 70 of the particulars of an application, the Commissioner shall, in order to ascertain whether it conforms to this Act, consider the application and all documents and any other material that are submitted to the Commissioner in connection with the application.

• 23(2)Tests and trials

  For the purpose of determining if the plant variety to which the application relates meets the requirements set out in section 4, the Commissioner shall require the performance of any tests and trials with the plant variety, under any conditions, as the Commissioner considers necessary.

• 23(3)Fee and materials

  The person on whose part material is submitted for consideration under subsection (1) shall, without prejudice to the requirements of subsection 9(1) and at the time and place that the Commissioner directs,

• 23(3)(a)

  pay the appropriate prescribed examination fee;

• 23(3)(b)

  provide any of the following that the Commissioner considers necessary for the purposes of carrying out or evaluating the results of tests and trials with the plant variety in question:

• 23(3)(b)(i)

  propagating materials,

• 23(3)(b)(ii)

  information, whether by way of photographs, drawings, documentation or otherwise, respecting the plant variety, and

• 23(3)(b)(iii)

  specimens of the plant variety or of parts of it; and

• 23(3)(c)

  provide any prescribed information, documents or materials.

• 24Acceptance of foreign results
• 24(1)

  If the Commissioner obtains from an appropriate authority in any country of the Union or agreement country the official results of tests and trials referred to in subsection 23(2) and the Commissioner considers them to be acceptable, the Commissioner may rely on those results. The person on whose part material is submitted for consideration under subsection 23(1) shall pay the costs incurred in obtaining those results.

• 24(2)Submission to foreign tests and trials

  The Commissioner may submit to the appropriate authority in a country of the Union or an agreement country, in order that any necessary tests and trials may be undertaken in that country with the plant variety in question, anything furnished in support, as required by subsection 9(1), of an application or in compliance with subsection 23(3) and the Commissioner may accept such results of any of the tests and trials as are furnished by that authority.

• 25Prohibition during pendency of objection

  Subject to the regulations, where an objection to an application has been filed under section 22, the Commissioner shall not, before disposal of the objection, carry out in respect of the application any functions of the Commissioner under section 23 or 24.

• 26Abandonment of application
• 26(1)

  An application shall be deemed to have been abandoned on failure of the applicant to prosecute the application, whether in default of compliance with subsection 23(3) or of payment of any fee pursuant to subsection 27(3) or otherwise, within the prescribed period after the taking on the part of the Commissioner, with respect to the application, of any action of which the Commissioner gives notice to the applicant.

• 26(2)Reinstatement of abandoned application

  An application deemed abandoned pursuant to subsection (1) may be reinstated

• 26(2)(a)

  within the prescribed time and on payment of the prescribed fee; or

• 26(2)(b)

  on petition presented to the Commissioner within the prescribed time subsequent to the time referred to in paragraph (a) and on payment of the prescribed fee if the petitioner satisfies the Commissioner that the failure to prosecute the application was not reasonably avoidable.

• 27Decision of Commissioner
• 27(1)

  If the Commissioner approves a denomination proposed by an applicant under section 14 and, after consideration of the application in accordance with subsection 23(1) and evaluation of the results of any tests and trials carried out with the plant variety to which the application relates, the Commissioner is satisfied that the plant variety meets the requirements set out in section 4 and that the application otherwise conforms to this Act, the Commissioner shall grant plant breeder’s rights in accordance with subsection (3).

• 27(2)Refusal

  If the Commissioner is not satisfied as described in subsection (1), the Commissioner shall refuse the application.

• 27(2.1)Request for exemption

  In the case where the applicant for plant breeder’s rights has requested that those rights be exempted from compulsory licensing under subsection 32(1), the Commissioner may, at the time of the grant of those rights, approve that request if the Commissioner is satisfied with the reasons given by the applicant for that request.

• 27(3)Rights granted by issuance of certificate

  The Commissioner shall, on payment of the prescribed fee,

• 27(3)(a)

  enter in the register the particulars required by section 63 in relation to the plant variety in respect of which the plant breeder’s rights are to be granted; and

• 27(3)(b)

  make the grant by issuing a certificate of plant breeder’s rights in respect of the plant variety to the applicant.

• 27(4)Opportunity for representations before refusal of grant

  The Commissioner shall not refuse the application of a person for the grant of plant breeder’s rights without first giving the person notice of the objections to it and of the grounds for those objections as well as a reasonable opportunity to make representations with respect thereto.

• 27(5)Destroyed or lost certificates

  If a certificate of plant breeder’s rights issued under paragraph (3)(b) is destroyed or lost, a certified copy may be issued in lieu of that certificate on payment of the prescribed fee.

• 28Grant to joint applicants

  If the Commissioner grants plant breeder’s rights to joint applicants as described in subsection 7(2), the grant shall be in the names of all those joint applicants.

• 29Repealed

  [Repealed, 2015, c. 2, s. 20]

• 30Maintenance of propagating material
• 30(1)

  A holder of the plant breeder’s rights respecting a plant variety shall

• 30(1)(a)

  ensure that he or she is in a position, throughout the period of his or her registration as the holder, to furnish the Commissioner, on request, with propagating material of that variety that is capable of reproducing that variety so that its identifiable characteristics correspond with those taken into account for the purpose of granting those rights; and

• 30(1)(b)

  provide the Commissioner at the Commissioner’s request with such facilities, free of charge, and with such information as the Commissioner deems necessary in order to be satisfied that the holder is causing the propagating material to be maintained and is otherwise complying with paragraph (a).

• 30(2)Inspection

  Facilities requested under paragraph (1)(b) may include facilities for inspection and the Commissioner has power to undertake the inspection accordingly for the purposes of that paragraph.

• 31Assignment of plant breeder’s rights
• 31(1)

  The Commissioner shall be, in the prescribed manner and within the prescribed period after the holder of plant breeder’s rights has assigned them,

• 31(1)(a)

  informed of the name and address of the assignee; and

• 31(1)(b)

  furnished with such proof of service of a notice of the assignment on any person granted any of those rights by licence under section 32 as is prescribed or as the Commissioner, in the absence or in lieu of anything so prescribed or in addition thereto, requires.

• 31(2)Default precluding registration

  An assignee who has not complied with subsection (1) may not be registered as the holder of the plant breeder’s rights.

• 31(3)Unregistered assignment void against subsequent assignee

  An assignment of plant breeder’s rights is void against a subsequent assignee thereof for valuable consideration without notice who is registered as the holder of the rights unless, before the subsequent assignee is so registered, the person to whom that assignment is made is registered as holder of the rights.

• 32Grant of compulsory licences
• 32(1)

  Subject to subsections (2) to (6) and the regulations and if the Commissioner considers that it is appropriate to do so, the Commissioner may, on application by any person, authorize the doing of any act described in any of paragraphs 5(1)(a) to (g) by granting the person a compulsory licence.

• 32(2)Objectives on granting compulsory licence

  In disposing of an application for, and settling the terms of, a compulsory licence pursuant to this section in relation to any plant variety, the Commissioner shall endeavour to secure that

• 32(2)(a)

  the plant variety is made available to the public at reasonable prices, is widely distributed and is maintained in quality; and

• 32(2)(b)

  there is reasonable remuneration, which may include royalty, for the holder of the plant breeder’s rights respecting the plant variety.

• 32(3)Provision as regards propagating material

  A compulsory licence under this section may include terms requiring the holder of the plant breeder’s rights affected by the licence to make propagating material available to the holder of the compulsory licence.

• 32(4)Variation and revocation of licence

  The Commissioner may at any time, on representations made by any interested person, extend, limit, vary or revoke a compulsory licence granted pursuant to this section.

• 32(5)Representations by persons adversely affected

  The Commissioner shall not dispose of any application for, or settle the terms of, a compulsory licence pursuant to this section or exercise jurisdiction pursuant to subsection (4) without giving interested persons who will be adversely affected by the Commissioner’s decision a reasonable opportunity to make representations with respect thereto pursuant to such notice as the Commissioner deems it appropriate to give.

• 32(6)Compulsory licence not to be exclusive

  No compulsory licence that is an exclusive licence shall be granted pursuant to this section.

• 33Concurrent compulsory and other licences permissible
• 33(1)

  A person applying for a compulsory licence may be granted it pursuant to section 32, whether or not that or any other person has a licence, including an exclusive licence granted by the holder, in relation to the plant breeder’s rights that the compulsory licence affects.

• 33(2)No contracting out

  An agreement is invalid to the extent that it purports to bind any person not to apply for a compulsory licence or to apply for a grant thereof on any particular terms.

• 34Annulment of grant

  The Commissioner may, before the end of the term fixed by subsection 6(1) for a grant of plant breeder’s rights, annul the grant if the Commissioner is satisfied that, at the time of the grant of those rights, the requirements set out in section 4 or the conditions set out in subsection 7(1) were not fulfilled or the holder was otherwise not entitled under this Act to the grant.

• 35Revocation of plant breeder’s rights
• 35(1)

  The Commissioner may, prior to the end of the term fixed by subsection 6(1) for a grant of any plant breeder’s rights, revoke the rights if the Commissioner is satisfied that

• 35(1)(a)

  their holder has failed to comply with paragraph 30(1)(a);

• 35(1)(b)

  their holder has failed, within the prescribed period, to comply with any request of the Commissioner referred to in section 30;