Abstract
Plant breeders’ rights (PBRs) are an important IP right, and as plant breeding has a crucial role to play in sustainability, it is vital that innovations in plant breeding receive the appropriate innovation incentives. The full breeders’ exemption ensures that there is always free access to the plant variety protected by a PBR for developing new varieties. The price to pay for this exemption is that PBR holders cannot prevent third parties from taking advantage of their efforts and investments in developing a new variety. This invites free-riding, at the detriment of the PBR holder. The concept of “essentially derived varieties” (EDV), introduced in 1991, provided a “fix” for this problem. It allows PBR holders to extend, at least to some extent, the scope of protection of their PBR to those varieties which use all or most essential characteristics of the initial protection variety. Decades have passed, but no adequate interpretation of the complex EDV concept has been found. The advent of new breeding techniques (NBTs) has made the discussion about a fair scope of protection of PBRs all the more relevant. This necessitates a modernization of the EDV concept, if the PBR system is to remain relevant and continue to be an innovation-incentivizing mechanism. I argue that a broader scope for the EDV concept is essential and fair. Determining what essential derivation is will remain a difficult task also in the future. This is why I have additionally proposed a collaborative reward model, which will facilitate the functioning of the EDV system and is capable of providing more legal certainty in this area.
Highlights
Intellectual property rights (IPRs) form an inseparable part of plant breeding.The foundational concept underlying all IPRs is that, in return for the disclosure of the innovation, and the understanding that this will have been at the expense of financial and/or intellectual effort, a time-limited exclusionary right is granted, allowing the IPR holder to exert some type of exclusionary and, where applicable, exclusive power over the subject matter protected by the IPR
The advent of new breeding technologies (NBTs) such as molecular technologies, genetic engineering, and genome editing technologies has made the requirement to obtain a fair scope of protection even more important and meaningful, as new breeding techniques (NBTs) allow the relatively swift introduction of mutations, which can outcompete the variety of the initial variety (IV) Plant breeders’ rights (PBRs) holder, whilst the new variety is predominantly derived from this IV
Considering that the narrow interpretation was rejected during the negotiations, and accepting the factually correct aim of the revision of the UPOV to strengthen the rights of breeders, it is logical to conclude therefrom that the aim of the legislature was to provide a more extensive scope of protection to the right holders compared to what existed in the absence of the essentially derived varieties” (EDV) concept
Summary
Intellectual property rights (IPRs) form an inseparable part of plant breeding. The foundational concept underlying all IPRs is that, in return for the disclosure of the innovation, and the understanding that this will have been at the expense of (much) financial and/or intellectual effort, a time-limited exclusionary right is granted, allowing the IPR holder to exert some type of exclusionary and, where applicable, exclusive power over the subject matter protected by the IPR. Whilst chemically induced mutagenesis is the least precise, and is more akin to a hoping that the chemical process will produce the/a desired result, and whilst the introduction of exogenous DNA via transgenesis lacks the precision to ensure that the desired effect is being achieved, one of the claimed major advantages of CRISPR-Cas is that the genetic modification in the plant genome by means of the genome editing complex is much more precise This is important, as much of the PBR system seems to be looked at through the prism of technological development in a world of traditional breeding methods, whilst this is obviously disconnected from the reality of technological (r)evolution. This paper will provide a reward model, which should lead to the more effective and fair implementation of the EDV concept, whilst respecting the foundational principle underlying the PBR system of access
Sign-in/Register to view highlights & summary Sign-in/Register to access full text options 
Free) 
Talk to us
Join us for a 30 min session where you can share your feedback and ask us any queries you have
Schedule a call
