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Benoit Bizimungu says the AGA is a positive in terms of offering longer protection and probably creating more market potential and accessing more improved varieties for Canada. Photo: Benoit Bizimungu

The Agricultural Growth Act: One Year Later

One of its goals was to provide better protection for domestic and foreign potato breeders in Canada and hopefully lead to more new, improved varieties. What’s happened since the new Plants Breeders’ Rights rules were adopted?

In 2015, the Canadian potato breeding landscape was transformed with the adoption of the Agricultural Growth Act. The AGA, or Bill C-18 as it was otherwise known, included amendments to the Plant Breeders’ Rights Act (PBRA) that brought Canada into compliance with the 1991 Act of the International Convention for the Protection of New Varieties of Plants (UPOV 91).

Among the numerous provisions in the amended PBRA was extending the duration of intellectual property protection from 18 to 20 years for new potato varieties. Plant breeders can also now sell propagating material of their potato variety in Canada for up to one year before applying for PBR protection in order to test the market or advertise, or to increase stock.

There’s also automatic provisional protection for a new plant variety from the date of filing, which allows applicants to exercise their rights while applications are pending “grant of rights.”

These and other changes were expected to benefit potato breeders, growers, processors and ultimately consumers by increasing access to new and better varieties. One year later, has the AGA fulfilled its promise?

Anthony Parker is the commissioner of the Plant Breeders Rights Office in Canada. He says there’s already evidence the strengthened intellectual property framework provided by the PBRA amendments is encouraging more foreign breeders to release their varieties in the Canadian market for evaluation and sale – something that should provide growers greater choice when it comes to sourcing varieties that meet their specific needs.

“It’s still early days but the initial signs are very promising. In the agricultural sector we’ve seen new investments in domestic plant breeding, particularly in the cereal sector. We’ve been seeing some new partnerships forming as well,” Parker says.

“With that stronger intellectual property environment, the reports we’re getting back from domestic seed companies is that foreign breeders are far more willing to test their varieties here in Canada and turn them into commercialization agreements to get those varieties into the marketplace,” he says. “We’ve been hearing that message quite strongly.”

Parker says the news on the potato front has been equally encouraging. “It was really interesting that right away after the Agricultural Growth Act was tabled in parliament, the [potato] sector responded right away,” he says.

“Potatoes are a very significant user of plant breeders’ rights. About seven per cent of all our applications for PBR come from potatoes,” he says, noting his office has seen 667 applications for new potato varieties since it opened back in 1992. That works out to an average of about 26 potato applications per year.

In 2014, when the new legislation was working its way through parliament, potato applications jumped to 59, more than double what the PBR office was seeing on a historical basis. This tailed off to 20 applications in 2015, Parker says, “but we think a lot of the applicants were moving their applications forward in 2014, and that was part of the reason we saw 59 in that year.”

About two-thirds of the way through 2016, the number of potato applications stood at 35. “We did a little bit of projecting; probably if this continues by the end of this year, we’ll see about 50,” Parker says. “Time will tell, but so far it looks quite promising. Certainly this year and 2014 have seen quite substantial highs in the number of applications.

“Overall what we’re seeing is a lot more diversity. So in addition to the table stock and processing types, we’re seeing more specialty varieties such as fingerlings, coloured flesh and small potatoes. We think that’s a real benefit,” he adds.

Parker says about 80 per cent of the new potato varieties registered at the Plant Breeders’ Rights Office normally come from foreign breeders. It’s hoped the enhanced intellectual property framework will also encourage more investment in domestic potato breeding, resulting in more made-in-Canada varieties.

“We’re trying to create an environment here in Canada that will support a greater level of domestic breeding,” he says. “We think there’s a real opportunity. We’re seeing the foreign varieties coming in. What we’re hopeful to see is a greater level of investment domestically.”

Parker says there hasn’t been an appreciable bump up in the number of Canadian registrations at the Plant Breeders’ Rights Office yet but he stresses it’s still early days. “Plant breeding is a long-term activity, but we believe that the environment for investment is much better now than it was before.”

Parker says the PBRA amendments include a specific breeder’s exemption that allows for public and private plant breeders to use protected varieties in the development of new varieties without authorization from the holder of the rights. This, he says, should make it easier for Canadian breeders to take new varieties, whether developed domestically or abroad, and improve upon them.

“The whole point of plant breeders’ rights and even the UPOV 91 framework is that it’s open-ended. You can build on someone else’s work and bring that innovation into the marketplace,” he says.

Notable breeders like Joyce Coffin of the Canadian Private Potato Breeders’ Network and Agriculture and Agri-Food Canada’s Benoit Bizimungu, senior potato breeder at the Fredericton Research and Development Centre, say it’s too early to really assess the effects of the Agricultural Growth Act on domestic breeding programs.

“It hasn’t really impacted so far. There is potential of course, but it’s only been a year in effect,” says Bizimungu. “Plant breeding takes a long time so … I would say five to 10 years would be a reasonable time frame really to see the impact in terms of variety development.

“My expectation is that it will be really quite positive in terms of offering longer protection and probably creating more market potential and accessing more improved varieties for Canada,” he adds. “I would anticipate more breeding activities, better access to foreign germplasm and overall [it’s] probably going to benefit the whole industry.”

Keith Kuhl, president of the Canadian Horticultural Council as well as CEO and president of Manitoba-based Southern Potato Co., maintains the industry is already benefiting from a greater influx of foreign varieties but also believes the impact of PBRA amendments on domestic breeding likely won’t be felt for another two to three years. In the meantime, he says, everybody is excited about what’s coming down the pike.

“I’m sure all of the Canadian potato breeding companies are certainly encouraged by this and more willing to continue to invest in the breeding programs,” Kuhl says. “When Bill C-18 passed, I was in communication with some of the international breeding companies that we deal with. They were ecstatic about the change.”

Kuhl maintains it’s important for the industry to continue to monitor what’s going on with PBR in other countries, particularly European nations with strong potato breeding programs, to enable Canada to keep pace.

Coffin considers the move to extend intellectual property protection to 20 years as “catch-up” and says the impact on domestic potato breeding would be greater if the period was extended to 25 years.

That is something that could happen within a few years.

“What we have been hearing from the sector is that the breeding time, multiplication time and market adoption time for potatoes appears to be much longer than for many other crops,” says Parker. “As such, a potato variety may become truly successful and have significant adoption (and therefore royalties) only towards the last few years of PBR protection. As such, with a shorter period of protection (e.g. 18 years) it can be difficult to recoup initial investments. We think the change to 20 years will help a bit.”

He adds the PBRA amendments include regulation-making authority to increase the duration of protection up to 25 years for specific crop species.

“Potatoes may be an ideal candidate,” Parker says, adding the European Union protects potatoes for 30 years. It’s an important reason why preliminary feedback from producer organizations and public and private potato breeding entities have been largely supportive of increasing PBR protection to 25 years in Canada, he explains.

“We don’t anticipate being able to move regulatory amendments forward in the short term (next one-two years), but there may be an opportunity within a three-five year time frame. When we do have the green light to advance amendments to the PBR regulations, we will conduct comprehensive consultations with all stakeholders served by the intellectual property framework, from breeder to farmer to end user, to solicit their input.”

 

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