Agricultural Growth Act (S.C. 2015, c. 2)
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Assented to 2015-02-25
1990, c. 20PLANT BREEDERS’ RIGHTS ACT
6. Sections 7 and 8 of the Act are replaced by the following:
Marginal note:Application 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.
Marginal note:If two or more breeders
(2) 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.
7. Sections 9 to 11 of the Act are replaced by the following:
Marginal note:How application to be made
9. (1) An application for the grant of plant breeder’s rights must
(a) include the prescribed information and be made in the prescribed manner;
(b) be accompanied by the prescribed fee;
(c) be supported by the prescribed documents and any other prescribed material; and
(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.
Marginal note:Agent required for non-resident applicant
(2) 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.
Marginal note:Filing 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).
Marginal note:Notice of filing date
(2) The Commissioner shall send to the applicant a notice specifying the filing date.
Marginal note:Priority when breeders breed independently
10.1 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.
Marginal note:Priority 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
(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
(b) the application is accompanied by a claim respecting the priority and by the prescribed fee.
Marginal note:Confirmation of claim to priority
(2) 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.
Marginal note:Supporting evidence
(3) 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).
Marginal note:Two or more preceding applications
(4) 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).
8. Subsection 12(1) of the Act is replaced by the following:
Marginal note:Priority 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).
9. The heading before section 14 of the Act is replaced by the following:
DENOMINATIONS
10. (1) Subsection 14(1) of the Act is replaced by the following:
Marginal note:Designation 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.
(2) Subsection 14(4) of the Act is replaced by the following:
Marginal note:International uniformity of denomination
(4) 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.
11. Section 15 of the Act is replaced by the following:
Marginal note:Approved denomination to be used exclusively
15. 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.
12. The Act is amended by adding the following after section 16:
Marginal note:Direction to change denomination
16.1 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.
13. Subsection 17(1) of the Act is replaced by the following:
Marginal note:Rejection 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.
14. Sections 18 to 21 of the Act are replaced by the following:
Marginal note:Amendment of application
18. 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.
PROVISIONAL PROTECTION
Marginal note:Applicant’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.
Marginal note:When rights in effect
(2) 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.
Marginal note:Rights 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.
Marginal note:Reinstatement of application
(2) 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.
Marginal note:Filing date — claim respecting priority
21. 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.
Marginal note:1995, c. 1, s. 52
15. (1) Subsection 22(1) of the Act is replaced by the following:
Marginal note:Making 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).
(2) Subsection 22(2) of the French version of the Act is replaced by the following:
Marginal note:Copie de l’opposition
(2) Dans les meilleurs délais après le dépôt d’une opposition autre que celle qu’il rejette au titre du paragraphe (3), le directeur adresse à la personne ayant déposé la demande de certificat d’obtention en cause copie de l’opposition.
(3) Subsection 22(4) of the Act is replaced by the following:
Marginal note:Representations by objector and applicant
(4) 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.
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