Plant Breeder's Rights and Essentially Derived Varieties: Still Searching for Workable Solutions
32 European Intellectual Property Review 499
37 Pages Posted: 28 Nov 2016
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: Suggested Citation