Essential Derivation, Law and the Limits of Science

Law in Context, Vol. 24, No. 1, pp. 34-53, 2006

Griffith Socio-Legal Research Centre, Research Paper No. 09-17

18 Pages Posted: 17 Aug 2009

See all articles by Jay Sanderson

Jay Sanderson

Griffith University - Griffith Law School

Date Written: 2006

Abstract

This article focuses on the concept of ‘essential derivation’ which refers to the situation where the breeder of one variety – the ‘initial variety’ – claims that another breeder has developed a second variety – the ‘putative essentially derived variety’ – that is virtually the same as the initial variety. Clarity is necessary to ensure the effectiveness of essential derivation as a legal concept and, more broadly, to enable the plant breeders’ rights scheme to remain relevant. In examining the concept of essential derivation, this article first looks at the general trends in plant breeding techniques. It then considers the concept of ‘essential derivation’ in light of the breeder’s exemption, the low threshold of distinctiveness and the limited infringement provisions in plant breeders’ rights schemes. This is followed by a discussion of the scientific (quantitative) approach to determining whether a variety is essentially derived and outlines the limits of such an approach. The article argues that the judiciary and legislature have imported notions of quality into the assessment of essential derivation. This has a number of advantages, including the ability to meet the needs of developments in plant breeding techniques and providing plant breeders with greater certainty in relation to whether new varieties are essentially derived.

Keywords: essential derivation, breeders' rights, initial variety, plant intellectual property

Suggested Citation

Sanderson, Jay, Essential Derivation, Law and the Limits of Science (2006). Law in Context, Vol. 24, No. 1, pp. 34-53, 2006, Griffith Socio-Legal Research Centre, Research Paper No. 09-17, Available at SSRN: https://ssrn.com/abstract=1455463

Jay Sanderson (Contact Author)

Griffith University - Griffith Law School ( email )

Nathan Campus, GU
Nathan 4111
Australia

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