PBR/patent system overlap

Issue summary

Currently, the Patents Act and PBR Act don't reference each other and it's 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's 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 don't 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 (For example, gene editing technologies or use of molecular markers) there's 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 don't have equivalent access to patented technologies.