Chapter I online
Essentially derived varieties
Protection systems set up according to the UPOV Convention are determined by the Principle of Independence. According to this principle, anybody may use material of the protected variety for the purpose of creating new other varieties. The reason is that when creating a new variety one needs plant material of known varieties. The breeding progress is only achieved if varieties available may be used to improve the same.
This involves the risk of plagiarism, in particular, in relation to varieties which tend to mutate. An exclusive right is justified only if the breeder of a new variety has contributed sufficient to the creation of a new variety. This is doubtful in cases in which the breeding result of somebody else has been the essential basis to create a new variety. In order to avoid that breeder may “ride” on the success of the breeding activities of another person, the legal institute “essentially derived variety” had been introduced into the UPOV 1991 Convention. This makes an essentially derived variety dependent from the protected variety it has been derived from as far as its exploitation (marketing) is concerned. Essentially derived varieties are given if
- it is predominately derived from a protected variety or from a variety that is itself predominately derived from a protected variety;
- it is distinct from the protected variety it has been derived from; and
- except for the differences which result from the act of derivation, it conforms essentially to the initial variety in the expression of the characteristics that result from the genotype or combination of genotypes of the protected variety it has been derived from.
At the moment UPOV is about to prepare a revision of document UPOV/EXN/EDV/2. In this endeavor, UPOV published a preliminary draft text for the revision of the explanatory notes on essentially derived varieties under the 1991 Act of the UPOV Convention (UPOV/WG-EDV/3/2) on 30 March 2021.
Whether a variety has to be regarded as an essentially derived variety in the sense of the UPOV Convention is mainly decided in the interpretation of whether a new variety is “predominantly” derived from the initial protected variety. While for the qualification of a new variety to be predominantly derived from another variety, genetic conformity between the new and the initial variety is a prerequisite – genetic conformity alone does not automatically mean that a variety has been predominantly derived. Otherwise e.g. sister lines from the cross would have to be regarded in any case as essentially derived in case of a high genetic conformity.
While it appears to be self-explanatory that varieties with a single parent resulting, e.g., from mutations, genetic modification or genome editing are per se predominantly derived from their initial variety (UPOV/WG-EDV/3/2 Nr. 5 (a) on page 4), it is not that clear with regard to varieties involving the use of two or more parents (so called “multi-parental” varieties). Depending on the crop-specific genetic conformity, certain threshold of a new variety with one of the parent varieties used may be relevant for determination of a predominant derivation. If the new variety goes beyond the defined threshold of genetic conformity, which would be obtained by normal crossing and selection of the initial variety, a predominantly derived variety would be given.
In determining whether an essentially derived variety is given, the differences in essential characteristics play a major role. While a high number of essential characteristics (inter alia morphological, physiological, agronomic, industrial and/or biochemical characteristics) may help to differentiate between essentially derived or not essentially derived varieties. It is essential to take into account the act of derivation. Differences resulting from act(s) of derivation are disregarded for the purpose of determining the EDV-status of a variety (UPOV Document Nr. 14). In Article 14 (5)(c) of the Convention 1991 examples of methods by which an essential derived variety may be obtained are listed. This list, however, is not-exhaustive.