Abstract
Do new breeding techniques (NBT) lead to essentially derived varieties (EDV)? It depends! It depends on the definition of EDV in the plant variety right (PVR) laws and their interpretation by the courts. This paper aims at providing an overview of the EDV concept and an analysis of the question whether NBT lead to EDV on the basis of the UPOV 1991 Act, the most recent UPOV Explanatory Notes on EDV of 2017 as well as some selected PVR laws. Almost 30 years ago, the concept of EDV has been incorporated into the UPOV 1991 Act. In order to strengthen the rights of breeders, in particular to provide breeders of original genotypes an additional source of remuneration, a system of “Plant Variety Right specific dependency,” based on “essential derivation,” was developed. Only a very limited number of court cases have been concerned with EDV. However, an escalation in EDV-related conflicts can be expected in the future due to increased competition in the ornamental and fruit breeding business as well as to the application of more sophisticated NBT.
Highlights
Almost 30 years ago, the concept of essentially derived varieties has been incorporated into the UPOV 1991 Act
In this paper we focus on new breeding techniques (NBT), but explicitly not including “grafting” and “agro-infiltration,” as the resulting products of these above defined NBTs are most similar to conventional mutagenesis and genetic modification
Mutants and New Bio-Technologies as the Initial Point for the essentially derived varieties (EDV)-Concept. It was mainly the breeders of vegetatively reproduced crops, namely ornamental and fruit plants, who were dissatisfied with the fact that third parties, due to the limited scope of protection of the preceding UPOV Acts, were allowed to exploit and even acquire plant variety right (PVR) protection for mutants of protected varieties without the original breeder being able to participate in the use and exploitation of these mutants (Kiewiet, 2002)
Summary
Almost 30 years ago, the concept of essentially derived varieties has been incorporated into the UPOV 1991 Act. In order to strengthen the rights of breeders [UPOV (1989), Introduction, chapter B. (iii)], a system of “Plant Variety Right specific dependency (Leßmann, 2000),” based on “essential derivation,” was developed. Incorporating the EDV concept meant a true extension of the breeder’s rights. The right of the breeder to exclude others from specific acts such as producing, selling, exporting, and importing no longer covers only the protected variety itself, and varieties that are essentially derived from the protected variety. The EDV concept has been included in the Plant Variety Right laws of 65 UPOV member states, 7 of them being party only to the UPOV 1978 Act.
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