According to the General Introduction, further developed in UPOV document TGP/9 “Examining Distinctness” (see here UPOV TGP/9/2), the determination of the differences between two varieties depends on a variety of factors in particular the types of characteristics being assessed:
. qualitative characteristics: characteristics which are expressed in a discontinuous state (e.g. male or female, diploid or tetraploid, susceptible or resistant);
. quantitative characteristics: characteristics which cover the full range of variations of one extreme to the other; they are expressed in a continuous way, e.g. by figures whereby one stands for a certain length or habitude whereas higher figures stand for further lengths or different habitudes;
. pseudo-qualitative characteristics: characteristics which are partly continuous but vary in more than one dimension (e.g. colour, characteristics or the shape of fruits).
The relevant directives for the DUS examination are defined in so-called technical protocols (TP) for individual species or other variety groupings. Such technical protocols are based on the UPOV Document Guidelines for the conduct of tests for distinctness, uniformity and stability (see here UPOV TG/1/3). Such test guidelines elaborate certain of the principles to give guidance for the harmonized examination of DUS and, in particular, to identify appropriate characteristics for the examination of DUS and to produce harmonized variety descriptions, while they have no binding character.
Each TP lists the characteristics which are relevant for the examination. However, breeding activities may lead to new characteristics for a trait as the law constitutes a right for the PVR granted. If it fulfills the DUS requirements, a new characteristic not encompassed in the list of relevant characteristics within the applicable technical protocol may lead to the grant of a PVR. The same should in any case be mentioned in the technical questionnaires (regarding the CPVR system see here – CPVO Technical Questionnaires; also regarding the CPVR system, see here – Decision in case CJEU, C-625/15 P, Gala Schnitzer, concerning the power of the President of the CPVO to insert additional characteristics not yet mentioned in the applicable TP).
Published on May 15, 2021