b'Notorious, complex and fascinating at the same time INTRODUCTION TO THE NOTION OF ESSENTIALLY DERIVED VARIETIES.BY: NGELA MARTNEZ LPEZ T he notorious concept of the Essentially Derived Variety (EDV) is one of the most complex yet fascinating legal constructions in the plant breeding rights arena. Historically, the legal construct of the EDV was adopted at the occasion of the revision of the UPOV Convention leading to the UPOV 1991 Act and its legislative bedrock is accordingly found in Article 14(5) of the UPOV Convention. First, pursuant to Article 14(5)(a)(i) of the UPOV Convention, the scope of protection recognised to the title holder of a plant variety extends to varieties which are essen-tially derived from the protected variety (where the protected variety is not itself an essentially derived variety). Second, an EDV must fulfil a triple-fold criterion to be regarded as such within the meaning of Article 14(5)(b) of the UPOV Convention. In accordance with said provision, a variety shall be deemed to be essentially derived from another variety (the initial variety) when: ngela Martnez Lpez(i) I t is predominantly derived from the initial variety, or from a variety that is itself predominantly derived from the initial variety, while retaining the expres- plant variety rights in the same manner as for any variety, pro-sion of the essential characteristics that result fromvided they fulfil the conditions established in Article 5 of the the genotype or combination of genotypes of the ini- UPOV Convention. Hence, where both the initial variety and the tial variety [predominant derivation], EDV are covered by plant variety protection, the authorisation (ii)It is clearly distinguishable from the initial varietyof both respective titleholders is required for the commerciali-[clear distinctness] and sation of the EDV. (iii)Except for the differences which result from the actRegarding the application of the EDV notion, both legal and of derivation, it conforms to the initial variety in thetechnical experts have faced difficulties when handling it in expression of the essential characteristics that resultpractice. Indeed, this notion may lend itself to diverging inter-from the genotype or combination of genotypes of thepretations that could hamper its uniform application in the UPOV initial variety [high level of conformity]. Contracting States. UPOV, aware of the complexity of the issue, Third, a non-exhaustive list of examples of methods byorganised a seminar exclusively dedicated to EDVs (UPOV/SEM/means of which EDVs can be obtained is presented in ArticleGE/13) on 22 October 2013. During this session, the historical 14(5)(c) of the UPOV Convention, namely, the selection ofbackground and the purpose of the EDV were revisited. a natural or induced mutant, or of a somaclonal variant, theBearing in mind past lessons, UPOV then adopted an selection of a variant individual from plants of the initial variety,Explanatory Note on Essentially Derived Varieties (EXN/EDV/2) backcrossing, or transformation by genetic engineering. Thisin April 2017 with the aim of shedding light on the described list corresponds to the technologies that were known in 1991,conundrum. EXN/EDV/2 is divided into two sections: the first but it should be regarded as a sort of living-provision that maysection delves into the main intricacies relating to the EDV potentially embrace new breeding techniques.concept, whereas the second section provides guidance on The EDV notion as embodied in the international legislativethe assessment of EDVs. Despite not deploying legally binding framework of UPOV was latter incorporated into the Europeaneffects, UPOV Explanatory notes provide valuable ad hoc guid-Union legislation on plant variety protection and, more pre- ance to UPOV members, stakeholders and judges who may have cisely, in Article 13(6) of the Regulation (EC) No 2100/94 onto decide EDV disputes.Community plant variety rights. At national scale, most EUUPOV now intends to get straight into the heart of the matter Member States have also accommodated the EDV concept inof EDVs by organising the upcoming Seminar on the impact of their respective plant variety protection legislation.policy on essentially derived varieties (EDVs) on breeding strat-From a retrospective perspective, it can be held that theegy that will be held on 30 October at the UPOV premises in UPOV legislator conceived EDVs as a tool to balance the interestsGeneva, Switzerland. With all the relevant actors in the plant of both the breeder of the initial variety and that of the EDV. Thevariety field gathering around the table, this seminar will prove underlying concept is that the breeder of the EDV can commer- an excellent opportunity to address all the above-mentioned cialise its variety, subject nonetheless to the authorisation andaspects and, overall, to attain a better understanding of the EDV conditions of the breeder of the initial variety if it is protected,notion from both the legal and the technical/practical prism.what in turn compensates the latter for the predominant contri-bution of the IV breeders variety to the essential characteristicsEditors Note: ngela Martnez Lpez is Manager Intellectual of the EDV. It must also be stressed that EDVs are eligible forProperty and Legal Affairs at Euroseeds in Brussels.20IEUROPEAN SEEDIEUROPEAN-SEED.COM'