Exclusive rights, such as a plant breeder´s right, are only justified if something new has been created. With regard to plant breeding results, this is the case if the same are clearly distinguishable – by reference to the expression of the characteristics that results from a particular genotype or combination of genotypes – from any other variety whose existence has been known on the date which is deemed to be the application date (see here Article 7 of the 1991 Act of the UPOV Convention). This definition makes it clear that characteristics which make the breeding result clearly distinguishable from other known varieties are triggered by the genotype or a combination of genotypes but not by external factors like climatic or cultivation conditions. Simultaneously, this means that characteristics that are not expressed on a phenotypical level can be taken into account as long as they are the result of the genetic condition of the new breeding result.
Published on May 15, 2021