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PLANT BREEDERS’ RIGHTS ACTPlant Breeders’ Rights RegulationsRegulations Respecting Plant Breeders’ RightsP.C.1991-2020  199110

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Whereas, pursuant to subsection 75(2) of the Plant Breeders’ Rights Act*, a copy, of the proposed Regulations respecting plant breeders’ rights, substantially in the form annexed hereto, was published in the Canada Gazette Part I on July 20, 1991;*S.C. 1990, c. 20And Whereas a reasonable opportunity was afforded to interested persons to make representations to the Minister of Agriculture with respect to the proposed Regulations;Therefore, His Excellency the Governor General in Council, on the recommendation of the Minister of Agriculture and the Treasury Board, pursuant to subsection 75(1) of the Plant Breeders’ Rights Act*, is pleased hereby to make the annexed Regulations respecting plant breeders’ rights.Short Title

1These Regulations may be cited as the Plant Breeders’ Rights Regulations.

Interpretation

2(1)For the purposes of the Act and these Regulations,description means a narrative that defines the characteristics of a plant variety for the purpose of demonstrating that the variety in question is a new variety; (description)identifiable characteristics means characteristics of a plant variety that may be included in a description and that, when so included, permit a clear distinction to be made between that variety and all other varieties in its category; (caractère identifiable)recently prescribed category[Repealed, SOR/2012-286, s. 41]representations means representations in writing. (observations)(2)In these Regulations, Act means the Plant Breeders’ Rights Act. (Loi)SOR/94-750, s. 1(E); SOR/98-582, s. 1; SOR/2012-286, s. 41

Application

3These Regulations apply to any plant variety belonging to a category set out in Schedule I.

4[Repealed, SOR/2017-94, s. 12]

Criteria Relating to Common Knowledge

5For the purposes of paragraph 4(2)(a) of the Act, the following criteria shall be considered when determining that the existence of a plant variety is a matter of common knowledge, namely,(a)whether the variety is already being cultivated or exploited for commercial purposes; or(b)whether the variety is described in a publication that is accessible to the public.

Prescribed Periods

6[Repealed, SOR/2012-286, s. 42]

7(1)[Repealed, SOR/2012-286, s. 43](2)In the case of a new variety of a category set out in Schedule I, with respect to the requirements concerning a sale or the concurrence in a sale outside Canada, the period referred to in paragraph 7(1)(c) of the Act shall commence(a)six years before the date of receipt by the Commissioner of the application for the grant of plant breeders’ rights respecting the new variety of woody plants, including their rootstocks; and(b)four years before the date of receipt by the Commissioner of the application for the grant of plant breeders’ rights respecting the new variety of any other category.SOR/93-87, s. 1; SOR/94-750, s. 4; SOR/98-582, s. 2; SOR/2012-286, s. 43

8An objection made under subsection 22(1) of the Act in respect of an application for the grant of plant breeders’ rights shall be filed by submitting a written statement within a period of six months after the date of publication of the application.

9The applicant is deemed to have abandoned an application for the grant of plant breeders’ rights, pursuant to subsection 26(1) of the Act, six months after the date of notice of any action by the Commissioner.

10Pursuant to paragraph 26(2)(a) of the Act, the applicant who is deemed to have abandoned his application pursuant to subsection 26(1) of the Act may have the application reinstated within 30 days after the date on which the application was deemed abandoned.

11The petition referred to in paragraph 26(2)(b) of the Act shall be presented within 90 days after the end of the period set out in section 10.SOR/93-87, s. 2

12An assignee shall comply with the requirements of subsection 31(1) of the Act and section 26 of the Regulations within 30 days after the date of the assignment of the plant breeders’ rights.SOR/94-750, s. 5

13A holder of plant breeder’s rights shall comply with the Commissioner’s request, for the purposes of paragraph 35(1)(b) of the Act, within 60 days after the date of receipt of the request.

14An objection made pursuant to paragraph 36(2)(a) of the Act shall be filed by submitting a written statement to the Commissioner, within 60 days after the date on which notice is given by the Commissioner.

15An applicant or a holder of plant breeder’s rights shall correct any failure described in subsection 39(2) of the Act within 30 days after the date of the notice from the Commissioner relating to the failure.

16For the purposes of paragraph 45(1)(b) of the Act, the holder of plant breeder’s rights shall take proceedings after being called on to do so within 15 days after the date on which the holder is so called.

17For the purposes of subsection 67(1) of the Act, the period for which documents shall be preserved is a period equal to the term of the grant of plant breeder’s rights or a period of six months after the date on which an application for plant breeder’s rights has been deemed to have been abandoned pursuant to subsection 26(1) of the Act, as the case may be.SOR/94-750, s. 6(F)

18For the purposes of subsection 67(3) of the Act, all papers and other material submitted in connection with the application for the grant of plant breeders’ rights shall be returned to the applicant within 30 days after the date of withdrawal of the application.

18.1Any objection to a change of denomination published in the Canada Gazette pursuant to paragraph 70(3)(a) of the Act shall be filed by submitting a written statement with the Commissioner within a period of six months after the date of publication of the change of denomination.SOR/94-750, s. 7

Application for Plant Breeders’ Rights

19(1)An application for the grant of plant breeder’s rights shall be made to the Commissioner and contain the following information:(a)the name and address of the applicant;(b)the name and address of the breeder, if different from the applicant;(c)the name and address of any agent or legal representative, where applicable;(d)the botanical and common names of the plant variety;(e)the proposed denomination;(f)whether an application for a protective direction is included;(g)a description of the plant variety;(h)a statement that the plant variety is a sufficiently homogeneous variety within the meaning of subsection 4(3) of the Act and is stable;(i)the manner in which the plant variety was originated;(j)where an application for plant breeders’ rights respecting the plant variety has been made or granted in any country other than Canada, the name of the country;(k)whether priority is being claimed as a result of a preceding application made by the applicant in a country of the Union or an agreement country;(l)where the breeder or a legal representative of the breeder sold or concurred in the sale of the plant variety within or outside Canada, the date of the sale;(m)where applicable, any request for exemption from compulsory licencing; and(n)the manner in which the propagating material will be maintained.(2)In an application referred to in subsection (1), the applicant shall include a representative reference sample of viable propagating material of the plant variety that is the subject of the application.

20An application referred to in subsection 19(1) shall be supported by(a)the results of comparative tests and trials to demonstrate that the plant variety is a new variety; and(b)photographs and a detailed description of the plant variety that illustrate that the plant variety is clearly distinguishable pursuant to paragraph 4(2)(a) of the Act.

21Where an application referred to in subsection 19(1) is made by a person other than a breeder, the application shall be accompanied by evidence that establishes that the person is the agent or legal representative of the breeder.SOR/94-750, s. 8(E)

Denominations of New Varieties

22Where the Commissioner rejects a proposed denomination pursuant to subsection 14(2) of the Act, an applicant shall submit another proposed denomination in writing to the Commissioner.

23(1)A request for a change of denomination shall be submitted to the Commissioner in writing.(2)The Commissioner may approve a change of denomination pursuant to subsection 14(5) of the Act in the following circumstances, namely,(a)where the denomination approved by the Commissioner is not, owing to error, the denomination proposed by the holder;(b)where additional information that becomes available after the grant of plant breeders’ rights justifies a change of denomination; or(c)where an objection has been filed under section 18.1.SOR/94-750, s. 9; SOR/2012-286, s. 44

24A change of denomination comes into effect on the date on which it is approved by the Commissioner.

25[Repealed, SOR/94-750, s. 10]

Assignment of Plant Breeders’ Rights

26Where the holder of plant breeders’ rights assigns the rights, an assignee shall, for the purposes of subsection 31(1) of the Act, provide the Commissioner in writing with the following particulars:(a)the name and address of the previous holder;(b)the category and denomination of the plant variety to which the assignment applies;(c)the plant breeder’s rights certificate number;(d)a letter of assignment signed by both the holder and the assignee, each in the presence of a witness; and(e)the effective date of the assignment.SOR/94-750, s. 11

Compulsory Licences

27(1)An application for a compulsory licence shall(a)be in writing;(b)identify the plant variety and category for which the application is made; and(c)state the reasons for the application.(2)Any interested person who will be adversely affected by the Commissioner’s decision to grant a compulsory licence may make representations to the Commissioner within 60 days after the date on which notice is given pursuant to subsection 32(5) of the Act.SOR/94-750, s. 12(F)

28Where the applicant makes the request referred to in paragraph 19(1)(m), the Commissioner may grant an exemption from compulsory licensing to allow the applicant sufficient time to multiply and distribute propagating material of the plant variety.

Fees and Charges

29The fees and charges payable for the purposes of the Act and these Regulations are as set out in Schedule II and are payable, in Canadian dollars, to the Commissioner.

30(1)The annual fee set out in item 10 of Schedule II is payable on or before the date of the anniversary of the granting of plant breeder’s rights every year for the term of the grant of the rights.(2)For the purposes of paragraph 35(1)(d) of the Act, failure to pay the fee referred to in subsection (1) within 60 days after the anniversary date may result in a revocation of the plant breeders’ rights.SOR/94-750, s. 13

SCHEDULE I(Section 3 and subsection 7(2))CATEGORIESItemColumn IColumn IICommon NameBotanical Name1RapeBrassica campestris L. and Brassica napus L.2ChrysanthemumChrysanthemum spp.3SoybeanGlycine max L. Merrill4RoseRosa spp.5PotatoSolanum tuberosum L.6WheatTriticum spp.7OatsAvena spp.8DianthusDianthus spp.9PoinsettiaEuphorbia pulcherrima Willd. ex Keotzsch10StrawberryFragaria L.11BarleyHordeum vulgare L. sensu lato12FlaxLinum usitatissimum L.13AppleMalus Mill14AlfalfaMedicago sativa L. sensu lato15BeanPhaseolus vulgaris L. & Phaseolus coccineus L.16PeaPisum sativum L. sensu lato17PotentillaPotentilla spp.18CherryAll species of cherries of the Prunus spp.19PearPyrus spp.20African violetSaintpaulia spp.21YewTaxus spp.22GrapevineVitis L.23CornZea mays L.24MapleAcer spp.25BegoniaBegonia spp.26MustardBrassica carinata A. Braun, Brassica juncea (L.) Czern et Coss., Brassica nigra (L.) W. Koch & Sinapis alba L.27ClematisClematis spp.28Creeping red fescueFestuca rubra L.29ImpatiensImpatiens spp.30LentilLens culinaris Medikus31PelargoniumPelargonium spp.32TimothyPhleum pratense L. & Phleum bertolonii DC.33Kentucky bluegrassPoa pratensis L.34PeachPrunus persica (L.) Batsch35PlumAll species of plums of the Prunus spp.36RaspberryRubus idaeus L.37SpireaSpiraea spp.38BlueberryAll species of blueberries of the Vaccinium spp.39ViburnumViburnum spp.40All other categories of the plant kingdom, except algae, bacteria and fungiSOR/93-87, s. 3; SOR/94-750, ss. 14(F) to 17(F), 18, 19; SOR/98-582, s. 3; SOR/2012-286, s. 45SCHEDULE II(Section 29 and subsection 30(1))ItemColumn IColumn IIServiceFees or charges1Filing, pursuant to subsection 9(1) of the Act, of an application for plant breeder’s rights $2502Filing, pursuant to subsection 19(1) of the Act, of an application for a protective direction 503Claim, pursuant to paragraph 11(1)(b) of the Act, respecting priority based on a preceding application made in a country of the Union or an agreement country 504Examination, pursuant to subsection 23(1) and paragraph 75(1)(a) of the Act, of an application for grant of plant breeder’s rights 7505Registration of grant of plant breeder’s rights pursuant to subsection 27(3) of the Act 5006Filing, pursuant to subsection 22(1) of the Act, an objection to an application for plant breeder’s rights 2007Processing of request for change of an approved denomination by the holder of the plant breeder’s rights pursuant to subsection 14(5) and paragraph 75(1)(a) of the Act 1008Reinstatement of an abandoned application for plant breeder’s rights pursuant to paragraph 26(2)(a) of the Act 1009Reinstatement of an abandoned application for plant breeder’s rights on petition pursuant to paragraph 26(2)(b) of the Act 20010Annual fee, pursuant to subsection 6(2) of the Act 30011Processing of application for compulsory licence, pursuant to subsection 32(1) and paragraph 75(1)(a) of the Act 25012Issuance, pursuant to subsection 27(5) of the Act, of certified copy of lost or destroyed certificate of grant of plant breeder’s rights 5013Public inspection of the register and the index referred to in subsection 67(2) of the Act, including any documents that, in the opinion of the Commissioner, should be open for public inspection, at the Plant Breeders’ Rights Office 514Copies of documents or certificates with regard to an entry in the register or index referred to in subsection 67(2) of the Act, including any documents that, in the opinion of the Commissioner, should be open for public inspection and obtained from the Plant Breeders’ Rights Office 0.50/page15[Repealed, SOR/2012-286, s. 46]SOR/94-750, s. 20; SOR/2012-286, s. 46