Protecting Your Cannabis Genetics in Canada and Internationally

genetics that may include some cultivars that are seed-propagated and some that are clonally propagated.  However, what is covered here should be informative for anyone interested in PBR, so don’t click away just yet.

Seeds and Clones – The Difference Matters

While the approaches for seed-propagated and asexually-propagated cultivars are very different in the US, they are not nearly as different in other UPOV countries, including in Canada.  However, there are still some important differences in the requirements, cost, and planning required for making successful applications, especially foreign applications (anywhere you’re not! — you’ll see what I mean if you keep reading).  So please be aware that you cannot treat your seed-cultivars the same as your clones when applying for PBR.

What are the differences and why do they matter so much?  The main difference is that almost all UPOV countries require a so-called D-U-S test which requires viable plant material in the country where you are applying for the rights.  DUS testing examines the cultivar’s Distinctness from other known varieties*, Uniformity of plants within the cultivar, and Stability of the cultivar’s traits from one generation to the next. (*If you’re curious about why I used the term “varieties” in one place and “cultivar” everywhere else in this paragraph, you may be geeky enough to enjoy this post.)

You Can’t Just Put a Few Dozen Clones in an Envelope

Since live plants must be examined, this is where the difference between seed-propagated and clonally-propagated plants becomes so important for applications outside your “home” country.  Compared with living cuttings of a cloned parent line, seeds are obviously much easier to sterilize and ship while still viable, certify as being phytosanitary, and maintain dormant prior to testing.  Such cloned cuttings are often referred to as “witness plants.” Usually, numerous live witness plants must be phytosanitary-certified (if they are to be exported), shipped, received, and test-grown in each country where a PBR application is filed.  Clearly, this requires more planning and expense than preparing and sending seeds.

A few PBR systems require direct submission of the witness plants to the PBR office itself.  Most, instead, require the applicant to certify that the plants

• have duly arrived in the country by a given deadline, with proper phytosanitary certification;
• have cleared any required quarantines;
• are under the care of a designated nursery at a specified location; and
• are available for inspection by the PBR authority upon request (or some variation on that general set of requirements).

There are even a few countries that will waive any requirement of local witness plants in lieu of certified DUS tests from another UPOV member country whose testing standards it recognizes as being trustworthy.

I will provide another, more-detailed post with some rookie mistakes, horror stories, lessons learned, etc., on adventures with clonally-propagated witness plants around the world.  Having “ridden herd” on thousands of witness plants making their way to dozens of countries over a couple of decades, I think I’ll be able to come up with some DO and DON’T material.  In the meantime, though, on to the rest of the PBR process:

For seed-propagated cultivars, in many countries the seed deposit you will be required to make is simply held in reserve by the PBR office, and you are still required to provide a place where plants grown from another batch of your seeds will be examined.  So, in this way, the seed-grown plants are essentially the same as the witness plants discussed above — they are just a lot easier to get to the right place and get started growing, especially if they are crossing international borders and long distances and, perhaps, waiting until the next growing season to be tested.

The Forms – Not Too Bad, But Watch the International Details

For the most part, a PBR application is a series of forms.  There are some general questions about the applicant, the applicant’s representative, the botanical name of the variety, the denomination (variety name), the breeder, prior commercial activity involving the variety, the origin and breeding history and ancestry of the variety, a statement about the uniformity and stability, and a statement about the distinctness from other known varieties.  Depending on the species, there also can be much more detailed descriptive forms that ask about certain morphological or functional characteristics that are important or useful in distinguishing among members of a given species.

There can be some major hiccups at the form stage — serious problems with providing the right documents to establish that the applicant has the proper authority to apply for the rights.  This can happen especially if there is an earlier application in another country that is providing a priority date for the later application.  Without going into too much detail, there are many international documentation hoops that one must jump through, in some countries, to get this part of the process out of the way; some things are similar from country-to-country, and some things are unique in each country.  It can be a serious headache if you haven’t handled it before, so I definitely recommend experienced, professional help for this part of the process.

Provisional Acceptance, Public Comment, and Examination

Once the forms are filled out, reviewed, accepted as being complete, and the deposit of seeds or plant material is received and verified, the application is “provisionally accepted,” published, and moves on to examination.  In Canada, the details of the application are published in the quarterly Plant Varieties Journal.  An application cannot be eligible for grant until at least six months after it was published, thus giving the public six months to object to anything in the published application.

DUS testing usually begins after the application formalities are complete and the application is published.  For DUS testing, an examiner may choose to make one or multiple visits to the designated site where the seeds have been planted or the witness plants are being grown.  In any case, the examiner will examine the plants in detail to compare them with reference varieties (to verify distinctness) and will examine individuals within a population of plants of the cultivar, to verify their uniformity.  The examiner will also assess the stability of the cultivar, either by making multiple visits to check different crops or cycles or by assessing stability within a population in a single cycle, if such a determination seems feasible under the circumstances.

One PBR Granted, Now Take On the World

If the cultivar is found to have the requisite distinctness, uniformity, and stability, and the application has been published at least six months, it can move on to being granted.  There are some other formalities required before the Canadian PBR can be granted.  One interesting requirement is a statement confirming that no Canadian trademark or similar indication has been, or will be, applied for or received for the denomination (cultivar name).  If this seems odd, you should read this post.

There are many more things to consider when developing an international strategy for protecting a valuable seed bank or collection of genetics or clones, of whatever kind of plant with which you work.  This is a brief (and simplified) overview of one country, using Canada as an example.  As soon as your business expands to two countries, things become more complex; it becomes essential to track the first date of commercialization in each country where there is any commercialization, and to be aware of every country in which you’re operating or may want to operate.  And you need to track and plan commercial activity not only in terms of propagating and growing, but also in terms of potentially selling harvested material and making products from harvested material.  Very quickly there are numerous moving parts; watch for more blog posts to follow addressing some of them.  In the meantime, you can click here to contact the author.