New crop varieties require years of research, testing and commercialization. Seeds Canada argues stronger breeder protections are needed to ensure innovators see a return on investment and continue bringing new genetics to market.

Research with the goal of introducing innovation is hard work and there needs to be a return on that investment.

On average, it takes more than a decade to get a new variety to farmers – from first cross to the sale of certified seed. While the process to commercialize wheat, pulses, soybeans or canola may differ slightly, the key cost drivers are similar, including crossing nurseries and large-scale, multilocation field trials. All in all, estimates suggest it costs between $5 million and $50 million to launch a new variety.

Canadian agriculture needs that investment in innovation to remain competitive. And to ensure we attract innovators to our country, we must create the conditions necessary for them to achieve a return on that $5-50 million investment.

When it comes to creating the conditions for a return on investment (ROI), there are several pathways to success.

Intellectual Property Protection

First, we need legal intellectual property (IP) protections supported by federal legislation. For seed, the most used tools are patents and Plant Breeder’s Rights (PBR). In Canada, higher life forms, including plants, cannot be patented but genes and genetic constructs may be. On one hand, patents prohibit farm saved seed use or use for further variety development by other parties. PBR, on the other hand, is a framework specially designed for plants, which recognizes that breeding is constantly improving on previous varieties. In addition to providing exceptions for research and further breeding purposes, PBR in Canada also allows for “Farmer’s Privilege,” or the saving of seed by a farmer to be replanted on their own operation. While both patents and PBR can be used on their own, they can also be combined.

Contractual Agreements

Second, breeders and seed distributors use contractual tools to complement the protection provided by statute (patent and PBR). And there are options available. Many patents are reinforced by technology use agreements or other on-package agreements. By using the seed, a farmer agrees to the terms and conditions, which vary based on situation, including restrictions on saving and replanting, as well as resale. Agreements supporting seed protected by PBR may require the user to commit to planting only certified seed. By purchasing and using the seed, a farmer is agreeing NOT to exercise the Farmer’s Privilege.

These agreements may also include a requirement to sell the harvested grain to a specific authorized party.

Variety Use Agreement

Since 2020, PBR protected seed can also be covered under a Variety Use Agreement (VUA). Seeds Canada administers the contract-based VUA program which facilitates royalty collection on farm-saved seed. When farmers divert harvested grain of a VUA variety for farm-saved seed, they are invoiced a Variety Use Fee based on seeded acreage. This operates as a voluntary, contract-based system where farmers sign an agreement, declare their saved seed acreage, and pay a royalty to the plant breeder. The VUA platform is still in early days, but it has undergone several iterations of improvement focused on user experience to ensure minimal administrative burden.

Enforcing Intellectual Property Rights

Seeds Canada supports and encourages protection of intellectual property, to ensure there is a level playing field for those following the rules, and to ensure innovators see the return on investment. Beyond administering the VUA, Seeds Canada also advocates to ensure the Canadian policy environment supports innovation, has strong, fit-for-purpose tools to protect it, regardless of the tool used, and whether they are supported by statute or contract.

Canada’s IP protection framework still includes weaknesses that limit these returns. While a PBR regulatory amendment package which will increase the protection period of certain plant types and carve out certain exclusions to the Farmer’s Privilege, is currently under consideration, more work is needed. Competitive jurisdictions with robust innovation systems include a legislative requirement to compensate the breeder for the use of saved seed and report this use. Such requirements allow for balance between farmer choice and breeder ROI.

Overall, a strong breeding ecosystem provides choice, and Seeds Canada works hard to ensure these choices are available to both our members and their customers.