2018-02-22
The term ‘genetically modified’ gets tossed around a lot nowadays. Genetic modification is simply a technique where scientists isolate certain genes and insert them into organisms, typically plants and food crops, to produce desirable traits. Today, we have a variety of plants with certain special attributes. For instance, some plants have an improved physical appearance and others have a high nutritional value. These new plant varieties are being used in a variety of food and body care products to solve consumer problems. The creation of these variations can be costly and time consuming. In addition, these plant varieties can have substantial commercial value.
Considering these factors, plant breeders often want to protect their plant varieties and will want to exclusively enjoy the success of their creation. Is it possible to patent a life form like a plant? This article will provide insight into the subject of plant protection.
Can You Or Cannot Patent A Plant
Typically, any higher life form, including plants, cannot be patented in Canada. But, there are exceptions to it. To protect new inventions or plant varieties, plant breeders can use the Canadian Plant Breeders’ Rights Act (PBRA). The Plant Breeders’ Rights are a form of intellectual property through which you can protect your new plant varieties in a similar way an inventor patents and protects their invention.
To avail of Plant Breeders’ Rights, your new plant variety should meet certain conditions. Typically, the act offers protection to new plant varieties that are:
- New varieties, and by one or more reason, clearly distinguishable from other commonly known plant varieties
- Remains stable in its essential characteristics
- Is a sufficiently homogenous variety, i.e., it must remain uniform in its relevant characteristics. And, if there is variation, it must be predictable, capable of being described and commercially acceptable
The Patent Act also allows patenting of certain plant-related innovations, but the Plant Breeders’ Rights Act offers significant advantages to the user. Unlike the Patent Act, the Plant Breeders’ Rights Act protects not only plant varieties derived from genetic engineering but also from traditional breeding techniques, where sometimes it is difficult to prove distinctiveness. Under the PBRA, you obtain protection for 25 years for a variety of tree and vine, and 20 years for all the other plant varieties.
The procedure is similar to obtaining a patent for an invention. You have to file an application with the Plant Breeders’ Rights Office (PBRO). One can claim an early filing date on the basis of a previously filed foreign application, provided that the Canadian application is filed within 12 months of the early filing date. The PBRO conducts an examination to assess whether or not requirements are met. Based on the results, you are granted the rights.
Understanding what can be patented and what is protectable by other means is important when deciding how to protect your intellectual property. A patent lawyer or agent at Prowse Chowne LLP can assist you in determining the best way to protect your creations.
