b'THE TEN PILLARS THE POSITION OF THE EUROPEAN SEED INDUSTRY ON THE INTERPRETATION AND PRACTICAL APPLICATION OF THE EDV CONCEPT.BY: NGELA MARTNEZ LPEZ T he understanding of the European Seed Industry of the5. The principle of "cascade" of derivation enshrined in the EDV notion boils down to the following 10 main elements:UPOV Explanatory Note on EDVs (2017) ensures that further 1. The conditions that an EDV must fulfil, as listed inEDVs down the chain having been developed either from the indents (i) to (iii) of Article 14(5)(b) UPOV 1991 Act, shouldinitial variety or from another EDV of the initial variety are sub-be regarded as cumulative criterions [predominant derivation,ject to the authorisation of the title holder of such initial variety. clear distinctness, conformity in the essential characteristics].Consequently, each EDV shall only be made dependent on the A case-by-case approach should apply for examining whetherprotected initial variety.the alleged EDV at hand meets all three listed requirements. 6. The enumeration of methods exposed in Article 14 (5)2. In assessing whether a variety is an EDV, the focus should(c) UPOV 1991 Act should be regarded as a non-exhaustive list. fall on both the genotype and the phenotype of such variety inThe wording may be obtained for example constitutes a clear relation to the concerned initial variety. The wording expressionindication that this was the intention of the legislator, where the of the essential characteristics that result from the genotype orlatter opted for using the words may be in connection with for combination of genotypes of the initial variety in Article 14(5) example to reinforce such intention. From this reading it cannot (b) UPOV 1991 Act reflects this double-fold component.thus be excluded that other methods besides the listed ones may 3. The term essential characteristics in Article 14 (5)(b)as well result in EDVs, provided that such methods include in any indents (i) and (iii) UPOV 1991 Act should be interpreted ascase the physical use of the initial variety. Likewise, despite the encompassing any relevant characteristic for the considered spe- listed methods do indeed very often lead to EDVs, such likeli-cies such as, for example, inheritable morphological, physiologi- hood should not translate into automatically inferring that varie-cal, agronomic or industrial characteristics. The UPOV legislatorties obtained by means of these methods are all EDVs. The focus did not define the expression essential characteristics, so thisof the examination should be the resulting variety as fulfilling expression should accordingly not be restricted to a limited sub- the above cited triple-fold criteria (p. 1), not the method itself. set of characteristics that are relevant for marketing of the vari- In sum, an individual evaluation of each case should proceed in ety. Further, it is noted that in the UPOV 1991 Act the adjectivesthe light of the applicable legislation. essential, important and relevant are used interchangeably7. The difference in wording between Article 13(6) EU in relation to variety characteristics, so these terms should beRegulation 2100/94 and Article 14(5) UPOV 1991 Act should not regarded as synonyms. In assessing if the initial variety and thebe attached substantive weight, in so far it does not derive from putative EDV present the same essential characteristics, thoseit that under the EU regime other requirements different from which have been modified by the act(s) of essential derivationthose of the UPOV system apply. It seems that both wordings, should be set aside and disregarded. The comparison should thennamely, conform essentially [in the EU Regulation] and con-be based on the remaining essential characteristics. forms in the expression of the essential characteristics [in the 4. If a variety shows only a difference in one essential char- UPOV 1991 Act]) is merely meant to clarify that the conformity acteristic compared to the original variety, it could still qualifyshould be assessed between the two varieties as a whole. as an EDV.22IEUROPEAN SEEDIEUROPEAN-SEED.COM'