Advances in crops in Saskatchewan have been huge over the past few decades. And more changes are coming.
The Government of Canada has proposed amendments to the Plant Breeders’ Rights Regulations (the “Regulations”) in response to concerns about plant breeders’ rights (“PBR”).
These concerns include the scope of what can be protected, the length of protection for certain varieties, and difficulties regarding the PBR application filing requirements.
These issues, according to stakeholders, weaken the PBR regime and discourage plant breeders from filing PBR applications in Canada.
In addressing stakeholder concerns, the proposed changes will undoubtedly affect farmers.
First, farmers’ privilege allows a farmer to save and reuse seeds of a harvested material of plant that was grown by the farm for use in future years.
One proposed amendment to the Regulations would exclude fruits, vegetables, ornamental varieties, other plants reproduced through vegetative propagation, and hybrids from the farmers’ privilege. This change would ultimately narrow the farmers’ privilege.
The second amendment would be to extend the duration of protection for potatoes, asparagus, and wood plants from 20 years to 25 years, which is the longest time frame permitted under the Plant Breeders’ Rights Act. This change is intended to allow plant breeders “a fair opportunity to recover their initial investment” because of the lengthy time it takes plant breeders to breed potatoes, asparagus, and woody plants plus several years of development before the plants are ready for production and adoption in the marketplace.
The final amendment is designed to encourage PBR applications.
A variety must be considered new or novel to apply for PBR protection. One of the requirements to determine whether a variety is new or novel is that a variety cannot have been sold in Canada for up to one year prior to filing or sold outside Canada for up to four years prior to filing. The term “sell” includes advertising. The proposed amendment would exclude advertising as a factor in determining whether a variety is new or novel.
PRB applications require a filing fee. However, applicants who file online using the international electronic filing system (UPOV PRISMA) must pay an additional fee. Accordingly, most applications are submitted in paper formats to avoid paying the UPOV PRISMA fee, which delays application processing. The amendments propose a reduced fee that offsets the UPOV PRISMA fee to encourage filing through the online system.
A sample of the propagating material must be provided at the time a PBR application is made; however, many applicants struggle to provide the sample at the time of the application. At times, this leads to delays or missing an application filing deadline, which may make a variety ineligible for PBR protection in Canada. The amendments propose flexibility in certain circumstances over when the propagating material sample can be accepted to avoid these delays or missing application filing deadlines.
The consultation period for the proposed amendments to the Regulations closed October 18, 2025. Any updates on the proposed amendments will be posted here.
Should you require any assistance with farmers’ privilege, PBR, or have questions regarding these proposed changes, please contact one of our Intellectual Property & Information Technology team members. McDougall Gauley LLP is here to provide guidance and support every step of the way.
