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Plant Propagation and Patent Law

Emily

This article, originally titled “‘Asexual Propogation Prohibited? Plant Propagation and Patent Law‘“ was published on IP Osgoode’s IPilogue blog on Nov 9 2021 here. The version below has some minor edits for clarity.

Photo by CHUTTERSNAP (Unsplash)

I wouldn’t consider myself to have a “green thumb” or have been born with plant parent instincts. Rather, it’s taken various (unsuccessful) experiments with succulents, cacti, annual and perennial flowers, and lush tropical plants to learn how to not lovingly flood them with water, despite my best intentions. Fast forward to the present; moving to Ontario for law school meant that I had to entrust my plants to my brother, who made it quite clear that he didn’t know what he was doing. Moving into my dorm at Osgoode was even more exciting when I realized I could welcome some new sprouts and furnish the space accordingly. I was also excited to continue experimenting with plant propagation. 

You can imagine my surprise when I read the words “propagation prohibited” or “asexual reproduction prohibited” in all capital letters, bolded, and printed on the plastic care and instruction tags attached to my newly acquired plants. With a few weeks’ worth of law school, Google, and a healthy dose of procrastination, I went down a rabbit hole of plant patents and breeders’ rights to see if I could be fined or arrested for propagating some of my pothos cuttings. Coming out at the other side of that late-night exploration, I’m reassured that plant enthusiasts, horticulture forum users, and budding plant parents like me will not face grave repercussions. Below, I present some preliminary findings and point out further resources that may interest readers.  

In Canada, protection of plant varieties and plant breeders’ rights (“PBRs”) fall under the scope of the Plant Breeders’ Rights Act of 1990, which was revised in 2015 to adopt the widely recognized International Union for the Protection of New Varieties of Plants (“UPOV”) standards. PBRs are not patents, but a lower-cost, more accessible mode of protecting legal rights without seeking exclusive ownership of a “higher life form.” In Canada, as held by the Supreme Court in the now-famous “Harvard mouse” case, the only patentable organisms are those categorised as “lower life forms” which include unicellular organisms (e.g. bacteria), cell clusters (moulds and yeast), and hybridomas (merged cell lines used to test for the presence of antibodies during an induced immune response). Although the U.S. allows entire plants to be patented, Canada does not. In Monsanto Canada Inc v Schmeiser, the SCC outlines a clear distinction between the uniqueness of a plant (potentially PBR eligible) versus the innovative production or technique associated with the life form (potentially patentable). 

PBRs provide legal protection in the domestic markets they are granted in, allowing holders to receive royalties and control any operations involving their protected variety. This includes processes like the production, sale, and imports/export of the plant variety. In order to be eligible for protection, potential plant candidates must be new, distinct compared to existing known varieties, uniform in character, and have traits that are consistently stable across  successive generations. Candidates are published in the Canadian government’s Plant Varieties Journal and held to industry scrutiny. If there are no objections after six months, the plant becomes eligible for PBRs. 

The 2015 revision to the Plant Breeders’ Rights Act expanded the scope of rights that PBR certificates grant to include harvested material, “essentially derived” varieties, and explicit rights and controls over the import and export of a protected plant variety, among others. 

Why are PBRs important? In our ever-changing economy, growing population, and global climate, it can be said that it is in humanity’s best interest to protect plant varieties and promote agricultural innovation—not only to address the realities of climate change, but to address food insecurity and poverty. Suppose a new variety of wheat is more drought-resistant than existing plants. Among other benefits, this characteristic would be especially useful for farmers and food systems, as weather patterns worldwide—including in the Prairies—become more extreme over time due to climate change, which ultimately affects crop yield and quality. SME farmers in other countries also benefit from having an increased market of possible seeds to grow.

As a final thought, I want to revisit the premise of this article. Propagating pothos or monstera cuttings for personal, non-commercial use, despite infringing on PBRs, will very likely not land you in jail, nor saddle you with a hefty fine. The onus of enforcing PBRs rests on the holder, and the likelihood of plant breeders enforcing their rights on the everyday plant parent (assuming their propagation has negligible or uncompetitive effects on the larger commercial market) appears extremely small. However, propagating protected plants (especially crop varieties), even for personal uses such as gifts or home gardens, bars plant breeders from collecting the full amount of the royalties they are entitled to and reducing resources that could be used toward future innovation. If you have the resources to do so, consider purchasing individual plants in support of local farmers and plant breeders, or at the very least, check the plant tag for any trademark symbols, notices prohibiting reproduction, or indications that the plant in question is legally protected before you propagate it.    

Further reading:  

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