Essentially derived varieties

Abstract

This chapter explores the International Union for the Protection of New Varieties of Plants (UPOV) 1991 delimitation of essentially derived varieties (EDVs) in detail. It highlights the scope of the terms ‘predominantly derived,’ ‘essential characteristics,’ ‘clearly distinguishable’ and ‘conforms to the initial variety,’ as explicated in official UPOV documents. The chapter analyses some of the legal cases that have litigated the conceptualisation of EDVs in different countries whose domestic plant breeders’ rights laws are based on UPOV 1991. It argues that while many of the legal issues about EDVs remain unresolved, the practical effect of the EDV provisions in UPOV 1991 has been to limit free riding by minor advances in plant breeding on previous breeding efforts. A key feature of the UPOV 1991 framework of intellectual property for plant varieties, and a key difference from other similar schemes such as patenting, is that the breeder’s right does not limit acts done for the purpose of breeding other varieties.