PBR/Patent System Overlap

At a glance

Policy ID: 148

Status: On hold

Priority: Medium

Patents Plant breeders rights

Issue summary

Currently, the Patents Act and PBR Act do not reference each other and it is possible for a plant variety to be protected by both Acts, (providing it meets the standard for both).

When PBR is granted the PBR recipient gives other breeders a free and unencumbered right to use the PBR variety for breeding purposes, provided it is for the creation and commercial release of new plant varieties (s16(c) of the PBR Act).

The PBR system works well when all participants are creating varieties protected by PBR, new breeders do not need to seek a license from the original plant breeder to use the original variety within their breeding program. However, as use of new technologies in plant breeding increases (e.g.: gene editing technologies or use of molecular markers) there is an increasing number of plant varieties protected by both a PBR and patent.

Stakeholders have advised that allowing a variety to be protected by both a PBR and a patent causes problems for PBR owners, as it allows patent owners to have easy unencumbered access to the PBR protected varieties, however, PBR owners do not have equivalent access to patented technologies.

Comments

Technology impact:

Until a preferred option is determined and more details regarding this option defined it is not possible to determine a technology impact.

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