In Canada, Plant Breeders’ Rights (PBRs) provide breeders exclusive rights for up to 25 years for tree and vine varieties and 20 years for all other plant varieties, ensuring breeders can benefit from their innovations. To expedite applications and enhance protection, foreign Distinctness, Uniformity, and Stability (DUS) test results can play a crucial role.
While provisional protection applies from the date of filing, enforcement is limited unless applicants notify parties in writing that a PBR application is pending. Given Canada’s vast geography and prevalence of small-scale farming, this can be a logistical challenge. Submitting foreign DUS test results can reduce the time between filing and granting PBRs, significantly accelerating the process.
The Canadian Plant Breeders’ Rights Office (PBRO), which administers PBRs, requires all applicants to submit DUS test results demonstrating a variety’s consistency over at least two growing seasons. Unlike many countries with state-run testing, Canada operates a breeder-run system, where trials are conducted by the breeder, their agent, or a contracted third party. The PBRO reviews this data and conducts independent verification trials.
Applicants who have already conducted these trials in other jurisdictions can submit foreign test results to streamline the process. This not only saves time but also reduces redundancy in testing, allowing applicants to focus on bringing new varieties to market more quickly.
Recognition of foreign DUS testing
As a member of the International Union for the Protection of New Varieties of Plants (UPOV), Canada may accept DUS test results from countries that follow the UPOV Convention's guidelines.
Breeders who have conducted DUS testing in another UPOV member country (such as the United States or European Union member states) can request to use these foreign test results in their Canadian PBR application.
However, the extent to which foreign test results can be used varies by plant variety.
- For agricultural seed varieties that require two growing cycles of trials in Canada, applicants can replace one cycle by utilizing foreign test results.
- For all other varieties, including ornamental and horticultural crops (such as fruits and vegetables, except Solanum tuberosum (potatoes)), foreign DUS test results can fully substitute Canadian DUS testing requirements—regardless of their growing location or propagation method (seed, cuttings, etc.).
Conditions for using foreign test results
While foreign DUS tests can be submitted, the results must meet certain conditions:
- Equivalence of testing standards: foreign tests must follow procedures comparable to those used in Canada to ensure results are valid;
- Authorization from foreign authority: the foreign testing body must authorize the release of the DUS test results to the PBRO, often requiring them to be purchased; and
- Language: test results must be submitted in English or French. If they are in another language, a certified translation is required.
In cases where foreign results are incomplete or insufficient to meet Canadian testing standards, applicants, breeders, and/or agents may be asked to conduct additional testing in Canada to fulfill the requirements.
Conclusion
In summary, Canada’s PBR system offers breeders a practical and flexible solution by allowing the submission of foreign DUS test results. This not only reduces the time and cost involved in duplicative testing, but also enhances global collaboration through the harmonization of plant breeders’ rights under the UPOV.
The preceding is intended as a timely update on Canadian intellectual property and technology law. The content is informational only and does not constitute legal or professional advice. To obtain such advice, please communicate with our offices directly.