Seed Cleaners Beware

This post was written prior to our January 2017 merger, under our previous firm name, MacPherson Leslie & Tyerman LLP.

(“Amendments to Plant Breeders’ Rights Act Receive Royal Assent“, “Amendments to Plant Breeders’ Rights Act in Force“) Canada’s Plant Breeders’ Rights Act (“PBRA”) was recently amended. These amendments have brought Canada into conformity with the 1991 Act of the International Convention for the Protection of New Varieties of Plants (UPOV ’91).

As part of the overall amendments to the PBRA, the clarification to plant breeders’ rights in section 5 should be of particular interest to those who run commercial seed cleaning operations. In particular, section 5(1)(b) of the PBRA states that

“5(1)…the holder of the plant breeder’s rights respecting a plant variety has the exclusive right:

(b) to condition propagating material of the variety for the purposes of propagating the variety”

The verb “to condition” remains undefined in the legislation and it is expected that this provision will almost certainly encompass circumstances where a seed cleaner conditions seed of a protected variety that is to be sold as propagating material. Put another way, seed cleaners who participate in the breach of plant breeders’ rights by cleaning seed which is to be sold as propagating material will likely be liable under the provisions of the PBRA. This includes the risk of being sued for damages for any loss suffered by the plant breeders’ rights holder.

To avoid the risk of liability, seed cleaners should undertake due diligence steps. Due diligence could include steps like requiring the producer to sign a Producer Declaration that, among other things, ensures representations are made that the seed is not PBR protected, and indemnifies the seed cleaner if these representations are false.

Depending on the particular circumstances, seed cleaners may want to seek the advice of a solicitor to determine what steps would be required to avoid any potential liability.