IP Strategies For The Cannabis Industry

Introduction

Intellectual Property ("IP") typically provides a significant commercial advantage in the marketplace. With the legalization of cannabis in Canada in 2018 and increasing competition among cannabis producers, the cannabis industry has been exploring ways to protect its cash crop. Given that proprietary varieties of cannabis plants are highly valued in the cannabis industry, a lesser known and very specific type of IP right called Plant Breeders' Rights ("PBR") may see a rise in prominence. Cannabis producers would be well advised to consider how PBR can be used to protect their commercially valuable proprietary varieties and supplement their existing IP arsenal.

PBR Eligibility and Scope of Protection

The federal Plant Breeders' Rights Act enables the protection of a plant variety where that variety is:

new, in that its propagating or harvested material has not been sold by or with the concurrence of the breeder inside or outside Canada within a prescribed time period (either one, four, or six years) before the filing date of the application; by reason of its identifiable characteristics, it is clearly distinguishable from all varieties whose existence is a matter of common knowledge at the filing date of the application; stable in its essential characteristics, in that after repeated propagation it remains true to its description; and having regard to the particular features of its sexual reproduction or vegetative propagation, it is sufficiently homogeneous (i.e. in the event of sexual reproduction or vegetative propagation in substantial quantities, any variations in characteristics are predictable, capable of being described, and commercially acceptable). The term of PBR protection is 25 years in the case of a tree or vine and 20 years in any other case from the day on which the certificate of PBR is issued. PBR grants to the holder the following exclusive rights:

to produce and reproduce propagating material of the variety; to condition propagating material of the variety for the purposes of propagating the variety; to sell propagating material of the variety; to export or import propagating material of the variety; to make repeated use of propagating material of the variety to produce commercially another plant variety if the repetition is necessary for that purpose; in the case of a variety to which ornamental plants belong, if those plants are normally marketed for purposes other than propagation, to use any such plants...