CAN WE STILL TAKE THE BREEDERS EXEMPTION FOR GRANTED?

Abstract

Breeding material can be protected by specific forms of Intellectual Property Protection. That can be by patents, but also by special plant breeding rights. The main difference between the two systems is the possibility to legally use protected material for creating new varieties. The definition of where the protection of plants by patent law ends is disputed. The broader the protection is interpreted, the lesser possibilities for further crossing will be left for breeders. By using plant breeding rights based on the agreements of the UPOV conventions, the breeders' exemption will be granted. The UPOV Convention chose the principle of independence between varieties. In the 1991 Convention an exception to this principle was introduced, known as Essentially Derived Varieties, shortened as EDV. The definition of EDV gives space to interpretation and the discussions of how to interpret the definition is conducted. The use of genetic distance is the main point of discussion. The phenotypic resemblance can be leading, but also be neglected if the genetic resemblance exceeds a certain limit. This limit can be set in advance, but can also be determined in case there is a suspicion of infringement. Especially in ornamental crops there is not enough knowledge about the genetic conformity within crops or populations to define a standard threshold for a shift of the burden of proof of independence. The proof of independence is hard and depending of the interpretation of the Judiciary. If the threshold is too low, it will be very difficult to create new independent varieties by using the genetics of existing varieties on a legally base as intended by the breeders' exemption.