Whether protection can be granted for a breeding achievement depends on whether it complies with the requirements for protection laid down in the relevant legislation. Namely whether the variety is distinct (D) from any other variety whose existence is a matter of common knowledge at the time of the filing of the application and whether it is sufficiently uniform (U) and stable (S), which has to be examined by the granting authority (DUS test). The DUS test is based mainly on growing tests carried out by the authority competent for granting plant breeder’s rights or by independent institutions such as public research institutes acting on behalf of that authority or, in exceptional cases, on the basis of growing tests carried out by the breeder. The examination results in a description of the variety regarding its relevant characteristics (color of flowers, color of the skin of apples, leaf shape, attributes of the plant etc.) by way of which it can be defined as a variety in the terms of the relevant law.
The DUS examination is based on methodological or physiological characteristics of the variety. Despite of the progress in the genetic analysis of breeding material, molecular technics are not yet applied in the DUS decision making process. However, they may play an important role in establishing proof of infringing material or whether a variety has to be regarded as an essentially derived variety.
In the document TG/1/3, UPOV (here) has set up general rules for the examination of distinctness, uniformity and stability and the development of harmonized descriptions of new varieties of plants. It sets out the principles which are to be used in the examination of DUS and should ensure that the examination of new plant varieties is conducted in a harmonized way throughout the Member States of the Union. The rules in the general introduction in the associated documents specifying the test guidelines procedure (TGP, see here) have no binding obligation as the Members States of the Union are only legally bound to the text of the UPOV Convention. It seeks to provide general guidance for the examination of all species in accordance with the UPOV Convention. For the same purpose test guidelines for a number of species or other variety groupings have been developed, elaborating certain of the principles contained in the general introduction, containing detailed practical guidance for the harmonized examination of DUS and, in particular, identifying appropriate characteristics for the examination and production of harmonized variety descriptions (see here the UPOV Test Guidelines).
Published on June 28, 2021