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This is merely hypothetical;

'Plant A' is a non-protected hybrid plant. 'Plant B' is a protected Hybrid. Can I use the pollen to 'Plant B' to pollinate 'Plant A' to create a new hybrid, 'Plant X', for commercial purposes? or the opposite can I use the pollen of 'Plant A' to pollinate 'Plant B' to make a new hybrid, 'Plant Z', for market?

I am neither reproducing 'Plant B' sexually or asexually, just using it to create a new hybrid through sexual reproduction.

I plan to introduce this new hybrid 'Plant X' or 'Plant Z' for marketing in both Canada and US.

'Plant B' is registered under Canada's Plant Breeders Rights Act. Does the act protect the breeder of this plant from me using it for this purpose in Canada? Does it inhibit me from protecting my new hybrid 'Plant X' or 'Plant Z'?

This plant also has a U.S. Plant Patent. Does that patent inhibit me from using 'Plant B' for breeding purposes. My purposes are to first Patent 'Plant X' or 'Plant Z' and market it in the U.S.

Side note - Can I get protection for 'Plant X' if I do not know what plant donated the pollen? I have a greenhouse full of this plant. The greenhouse has many varieties some protected, but many not protected. I collected the seeds from 'Plant A' and raised a new hybrid 'Plant X', but I don't know which plant donated the pollen. Do I need to know which plant donated the pollen to file for protection under CA's PBRA or a U.S. Plant Patent?

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OK I am not a lawyer but I'm a sucker for an interesting question, so continuing on the hypothetical in a Canadian context ...

The Canadian law statute is available for anyone to read. The intention is to make it difficult for people to steal the hard work of others and give breeders temporary protection from competition. Investing millions to attempt a thousand possibilities from which you select one is hard work. My holiday in Brazil that randomly discovers a new and interesting orchid is not the same. It is easier to demonstrate hard work if you can specify plant X comes consistently from a cross of plants A and B.

Now for words; propagating material normally includes pollen. But in the context of the act there is an implication that the protected result is a plant with very specific genetic characteristics which cannot be achieved by sexual reproduction using the pollen from plant X. The only way to reproduce plant X commercially is through vegetative propagation. Even if you could reproduce the original breeder's effort by crossing your plants A and B to produce one plant X, attempts to vegetatively reproduce your plant X would be prohibited.

Non-application: note that section 5.3(1)(c) says the rights do not apply for the purposes of breeding other varieties. To me this clearly opens the door for you to buy a plant X, allow it to flower and produce pollen and then use that pollen to cross with another variety to produce a different plant X and then apply for your own protection.

But how do we handle the case of monoculture soy beans? In this case sexual reproduction produces seeds that are very narrowly similar to the protected material due to their close proximity in the field. The plant X is being crossed with itself to produce more plant X. If you can show that your deliberate effort was to cross plant X pollen with a new plant C then on the face of it the result is exempt. But as we well know there have been cases where pollen has escaped from one field to another and valuable genetic characteristics have ended up in an innocent farmer's open pollinated crop. The terms of the contract by which you acquire plant X are very important - if the original breeder is aware you will use his plant X to breed with plant C to produce your protected plant Y then I guess he can either refuse to sell or accept the consequences. Things can get very grey ...

  • This is one of the plants that has me thinking about it. It is the parent to Cheyenne Spirit and Pow Wow Wild Berry Echinacea. This US Patent protects all breeding done from any its descendants. Those two Echinacea are protected not by their own patents but by the patent of their parent. patents.google.com/patent/US7982110B2/en Which is understandable in a way once you see the process that went through to create the parent. Which only goes by the name, 'G0052Y' – GardenGems Dec 10 '19 at 8:48
  • @GardenGems I think you're referring to this text from the USPTO: "A plant patent is regarded as limited to one plant, or genome. A plant derived from a sport or a mutant is unlikely of the same genotype as the original plant, and thus would not be covered by the plant patent to the original plant. Such plant derived from a sport or such mutant may itself be protected under a separate plant patent, subject to meeting the requirements of patentability." The USPTO then gives no further info on what that means, but implies that you can patent the sport or mutant independently of the parent.. – Jurp Dec 10 '19 at 12:01
  • @Jurp No. For this particular example I give. I believe you cover the answer above. If you look for the patent number or look at a tag w/the patent # both Cheyenne & Pow Wow have the same #. Both patent numbers are for protecting 'G0052Y'. The amount of breeding, selecting, intentional mutations and possible GM that went to create 'G0052Y' is almost unbelieveable. Not to create one plant, but a whole series. I'm in awe and scared. They've sold thousands across N.America, all releasing pollen that will encounter our native species. If it is GM that will impact the native species evolution. – GardenGems Dec 10 '19 at 17:02
  • @Colin Beckingham Is there a way to combined the two of these two answers. One of you covered US and the other Canada. A correct answer would be the combined of the two? – GardenGems Dec 10 '19 at 17:02
  • @GardenGems Probably the answer that would really satisfy you would come from someone who works internationally in the field and is probably too busy to participate here. I think Jurp has done a good job illustrating where the rubber hits the road in a US/CAD context. – Colin Beckingham Dec 10 '19 at 17:58
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American plant patent law states that you cannot VEGETATIVELY propagate a patented plant without the patentholder's permission. This does not prevent you from creating a new cultivar via the "old-fashioned" way.

BUT HUGE CAVEAT!

If the patented plant is genetically modified, then you cannot include the modifications in the child plant, even if that plant was created via cross-pollination. This is how the large chemical companies put organic farmers out of business. The difference between US and Canadian law in this case is that in the US, companies do not have to prove intent to infringe on the patent in order to successfully sue farmers.

Also, be aware that the PROCESS of genetically modifying something can itself be patented, which gives patent rights to the results of that process. Also, patentholders can control research into, and contents in the publication of said research, of patented plants/processes. This is why there are few to no studies on the health impacts of certain GM crops (especially regarding insect health) that were not released by non-patentholders. In the US, such publication can be actionable. This last info applies to a different form of plant patent (yes, in the US there are at least two ways to patent a plant).

Here is probably more than you want to know about US Plant Patent law.

  • Is there a way to combined the two of these two answers. One of you covered US and the Canada. A correct answer would be the combined of the two? – GardenGems Dec 10 '19 at 16:49

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