Greenhouse Canada

Inside View: Patents or rights?

August 14, 2023  By Gary Jones

Having moved home, my wife and I are choosing colours to paint the outside of the house. She likes colours that ‘pop’. Me, I’m a little more conservative. And colour blind. So, this is challenging. We’ve painted a bunch of sample colours on the fascia and a side wall. It looks like a Kindergarten, and since that side faces the street, it has rapidly become the talk of the neighborhood. It’s a great way to meet new neighbours who stop to ask what we’ve chosen. Who knew it was so difficult. But this has really highlighted to me how very subjective colour preference is. Even more startling, just how strong peoples’ opinions are!

This got me to thinking about how difficult it must be to develop new varieties of flowers and ornamentals with colours that ‘grab’ the majority of customers. But colour is not the only criterion. As a grower, what do you look for in a new variety? Pest and disease resistance, water requirements and drought tolerance, heat/cold tolerance, habit, longevity, even novelty value? For edibles, yield of course, flavour, appearance, production cycle and crop balance characteristics are all important.

There is clearly a ton of work required to bring a new cultivar to market and hats off to all those breeders working hard to support our industry in this way. Their knowledge and years of effort involved in this process need to be recognized, which is why breeders want to protect their investment and valuable intellectual property.


The question of patents on living organisms (including plants) has come to the fore with the development of genetic modification through non-traditional methods, stirring a public debate about plant patents. “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).”1

“Plant breeders’ rights (PBR) are a form of intellectual property protection that allows plant breeders to protect new varieties of plants, similar to the way an invention can be protected with a patent. When a PBR certificate is granted for a variety, the holder has legal protection in the marketplace and may seek compensation if the variety is used without authorization.”2 To be considered for a PBR certificate, a variety must meet specific criteria and be ‘new, distinct, uniform and stable’2. Holding a PBR certificate affords the breeder certain benefits, namely “The holder [also] has exclusive rights over the sale, production, reproduction, import, export, stocking, and conditioning of their variety’s propagating material (e.g. seeds or cuttings). If the holder is unable to exercise these rights on the propagating material, they may exercise the rights on harvested material (e.g. grain or fruit).”2

In other words, the efforts of conventional plant breeders are recognised, rewarded, and preserved. But non-conventional techniques for genetic modification of plants have raised eyebrows when it comes to plant patents and intellectual property of genetic material. That is already covered in the Canadian legislation (see above), and in Europe “the European Patent Convention (EPC), [which] prohibits patents on conventionally bred varieties.”3 However, “EU directive (98/44) does allow patents, but only for technical inventions such as transgenic plants.”3

So, conventionally bred new cultivars cannot hold patents, but can benefit from ‘Plant Breeders’ Rights’ certification, while transgenic plants can be patented. I would think that for the general public, this is a confusing situation. And confusion leads to misunderstanding. Which in turn can often lead to disagreement, even confrontation.

There are, of course, multiple viewpoints on what is essentially the discussion around the right to patent life. In horticulture, we’ve operated for decades within the framework of PBRs. Will the conversation change this, and will we be able to continue this? Just a thought. Like choosing a house colour, I suspect any debate will go on for some time. And in case you’re wondering, no, we haven’t chosen a colour yet. But new rose variety ‘Arborose Tangerine Skies’ took my breath away. Perhaps it ‘pops’ just a bit too much for a house colour though. Back to the drawing board, I guess. 

  • accessed 30 June 2023
  • accessed 30 June 2023

“More than 1.000 plant varieties affected by patents” ‘No Patents On Seeds’, reported in accessed 30 June 2023

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