Overview
The Plant Breeders' Rights (PBR) Advisory Committee held its 3rd meeting on April 24, 2023, from 11:30 a.m. to 3:30 p.m. EST. Committee members attended (sufficient for quorum), along with the commissioner and members of the PBR Office, as well as a representative from Agriculture and Agri-Food Canada.
The objective of this meeting was to provide members with an update of proposed regulatory amendments, an overview of the PBR Office's strategic business plan and a more in-depth look at the concept of essentially derived varieties.
Opening remarks and proposed regulatory amendments
The chair, Ms. Deb Hart, opened the meeting and welcomed attendees to the 3rd virtual meeting. The chair asked for comments or edits to the record of proceedings from the last meeting. As there were none, it was considered approved. Next, the chair asked if anyone would like to propose changes or additions to the agenda. The chair asked for an update from the PBR Office on its recent activities be added to the agenda. The proposed change to the agenda was accepted and the agenda was approved.
Mr. Anthony Parker, Commissioner of the Canadian PBR Office, provided a brief update of the office's recent activities, such as its participation:
- in the meetings for the Union for the International Union for the Protection of New Varieties of Plants (UPOV) in Geneva in March, where a new Vice-Secretary General was nominated (Ms. Yolanda Huerta)
- in the seminar on the interaction between plant variety protection and the use of new plant breeding technologies
- in the annual general meeting of the Fruit and Vegetable Growers Association of Canada in Vancouver
- in the annual general meeting of the International Community of Breeders of Asexually Reproduced Ornamental and Fruit Varieties in Washington
The chair also requested an update on the planned publication date of the draft joint economic study with Agriculture and Agri-Food Canada. Mr. Parker informed the committee members that their comments had been incorporated and that the draft had been finalized. Target publication date is currently late spring or early summer.
Next, the chair asked Mr. Parker to provide committee members with an update on the proposed regulatory amendments for fall 2024. These include cross-referencing and numbering changes to ensure alignment between the Plant Breeder's Rights Act and Plant Breeder's Rights Regulations after the last amendments, possible fees for service adjustments, 25 year protection for potatoes (and possibly other crop kinds that require longer breeding and market adoption time), and proposed changes to the farmer's privilege.
Mr. Parker underlined the need for further work to be done to determine the cost of delivering intellectual property rights as well as for an international benchmarking exercise in order to ensure fees are not a barrier to seeking protection in Canada before proposing any amendments to fees for service.
In regards to the proposed amendment to increase the protection for potato varieties from 20 years to 25 years, Mr. Parker indicated the committee has supported this change since 2016. Its suggested other crops such as asparagus and woody crop species, that take longer to breed might also benefit from a similar change and that industry outreach is required to determine the other crops that should be included as well.
Next Mr. Parker provided a brief overview of the proposed amendments relating to the farmer's privilege (subsection 5.3(2)) for asexually reproduced varieties in accordance with UPOV '91 and its explanatory note EXN/EXC. Under the proposed amendments, asexually reproduced varieties, hybrids, varieties subject to subsection 5.2(1)(c) (inbred lines), and synthetic varieties would be exempt from subsection 5.3(2), i.e. these types of varieties would require the authorization of the breeder before propagating material could be reproduced. The amendments would aim to mitigate some of the challenges posed by the current state, such as:
- foreign breeders refusing to release their varieties into the Canadian marketplace out of caution
- creating better balance between breeders and users
- providing sufficient protection under the PBR regime so breeders do not seek out more restrictive forms of intellectual property like patents
Strategic business plan
At the last meeting, the committee asked that the PBR Office draft a strategic business plan. The commissioner confirmed that the team met in early April to prepare a draft for the Committee. The chair asked the commissioner to provide committee members with an outline of the plan.
Mr. Parker indicated the draft is in alignment with the Canadian Food Inspection Agency business plan's guiding principles and areas of focus, regarding:
- trusted partnerships and global leader
- agile regulations
- intelligent oversight
- enabled workforce
- stakeholder empowerment
- strengthening our future.
Some of the main points included in the plan are:
- leadership and participation in UPOV standard setting and policy development
- cooperation in examination and management of reference collection with other PBR national authorities
- partnerships with breeders, producers, industry and other government departments
- ongoing consultation and advice from the PBR Advisory Committee
- periodic regulatory amendments to support breeders' needs
- expanded use of phenotypic/morphological and genotypic/molecular data
- leveraging electronic solutions and sustainable business practices to improve service delivery
- offering training to clients to increase accessibility and use of the PBR system in Canada
- raising awareness and promoting benefits of Canada's breeder cooperative testing system within UPOV.
As a next step, Mr. Parker indicated that the PBR Office will meet again in September to refine the plan and present a draft to the committee for consideration in fall 2023.
The chair thanked the PBR Office and requested that a draft annual report highlighting the work being done by the PBR Office both domestically and internationally also be prepared to present to the committee at the in person meeting in December in Ottawa.
Essentially derived varieties
The chair asked the commissioner to provide an in-depth look into the concept of essentially derived varieties (EDVs). Mr. Parker explained that the purpose of the concept is a provision under UPOV '91 to ensure sustainable plant breeding development by providing effective protection for the breeder and encouraging cooperation between breeders and developers of new technologies such as genetic modification. The EDV concept was included in the UPOV '91 Convention to redress challenges of backcrossing and genetic transformation, changing a characteristic and claiming ownership of the variety. The threshold for PBR protection is low: a variety must be "clearly distinguishable" by at least 1 characteristic.
Mr. Parker indicated that the UPOV Working Group on EDV has developed a draft 4 of a new explanatory note that corrects major issues with the current 2017 explanatory note, and that no EDV revisions would be required to Canada's PBR Act as it is already in alignment with UPOV '91.
Next steps and review of the work plan
The chair requested that another virtual meeting be held in late summer or early fall as well as an in person meeting in December in Ottawa. PBR Office will schedule both meetings.
The committee will provide advice in the fall regarding proposed regulatory amendments.
The PBR Office will provide an update at the in person meeting on EDVs.
The PBR Office's strategic business plan and annual report were added to the work plan. The strategic business plan will be provided to the committee in the fall. The annual report highlighting the work being done by the PBR Office both domestically and internationally will be provided to the committee in December.
The chair requested a list of acronyms and their definitions be provided to the committee members.