Plant Breeder's Rights and Essentially Derived Varieties: Still Searching for Workable Solutions

32 European Intellectual Property Review 499

Griffith University Law School Research Paper No. 16-17

37 Pages Posted: 28 Nov 2016

See all articles by Charles Lawson

Charles Lawson

Griffith University - Griffith Law School

Date Written: November 27, 2016

Abstract

The 1991 International Convention for the Protection of New Varieties of Plants (UPOV Convention) introduced the concept of “essentially derived varieties” (EDVs) expanding the scope of the plant breeder’s right. The purpose of EDVs was to limit “plagiarism”, “copycat breeding”, “mimic”, “imitation” or “cosmetic” varieties, and an unfair free riding on the original plant breeder’s time and investment. This article addresses the meaning and threshold of EDVs in the context of the 1991 UPOV Convention and the technicality issues that have been considered in trying to identify and establish a suitable threshold. The article concludes that the threshold of EDVs is more than a mere quantitative technical question requiring a technical answer, such as a statistical index or a DNA sequence, and includes qualitative elements. Further work is required by the Members of the 1991 UPOV Convention to articulate these quantitative and qualitative aspects of the EDV thresholds, and especially the likely standard of “essential characteristics”.

Keywords: 1991 UPOV, Essentially Derived Varieties, EDV

JEL Classification: O34, K33

Suggested Citation

Lawson, Charles, Plant Breeder's Rights and Essentially Derived Varieties: Still Searching for Workable Solutions (November 27, 2016). 32 European Intellectual Property Review 499, Griffith University Law School Research Paper No. 16-17, Available at SSRN: https://ssrn.com/abstract=2876387

Charles Lawson (Contact Author)

Griffith University - Griffith Law School ( email )

Gold Coast Campus, GU
Gold Coast 4222
Australia

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