b"8. The decision on whether a certain variety is (or not) anproof would be triggered. Such thresholds should not be set at EDV should be the competence of the judiciary power, givenan excessively low level to avoid that derivation is deemed too that the EDV notion is a matter of scope and enforcement ofeasily, since this could lead to an increased number of unjusti-rights. Therefore, decisions on EDVs should not lay in the handsfied EDV court cases. This could eventually translate in greater of national plant variety rights authorities, which are respon- reluctance of breeders in the use of germplasm of their competi-sible for deciding on the grant of plant variety right titles.tors varieties and thereby to a factual limitation of the breeders' Nonetheless, examination offices can play an important roleexemption. Another important aspect about scientific thresholds as independent experts to legal proceedings. First, the staff ofis that their validity should be regularly reviewed in the light of examination offices is highly specialised and trained in plantthe most recent technical developments affecting the species variety rights. Second, the employees that conduct the exam- at stake. By way of example, it is reminded that Euroseeds has ination of a certain variety have a sound knowledge about thedeveloped a specific position on EDVs in potatoes,where the reference collection concerned, what proves important whencited threshold for the reversal of the burden of proof has been establishing whether the initial variety and the EDV are moreset at 92% of the genetic similarity coefficient. The threshold conform than the normal variation in a given species.is based upon a studyin which three genetically closely related 9. The burden of proof should be reversed to be in favourvarieties have been crossed with each other and as selfings to of the holder of the plant breeders right of the initial variety.see what the highest possible genetic similarity will be as long In practice, two stages would take place before the court: oneas the varieties are not used in acts of predominant derivation.where the title holder of the initial variety raises suspicion asThe European seed industry now looks forward to the to the possible existence of an EDV by showing that there is aSeminar on the impact of policy on essentially derived varieties certain degree of genotypic similarity between its variety and(EDVs) on breeding strategy that will be held on 30 October the alleged EDV; and another where, based on such presumption,2019 at the UPOV premises in Geneva, Switzerland. This semi-the breeder of the alleged EDV opens its breeding records tonar constitutes an excellent opportunity for breeders to present prove the contrary. The rationale behind the reversal of the onushow they deal with EDVs in practice, as well as for UPOV mem-of proof in EDV cases lays in the principle that the breeder of abers to voice how they interpret the EDV concept. certain variety is in a better position to show how the variety itFinally, to learn more about the position of the European developed was obtained and to demonstrate that the develop- Seed Industry on EDVs, you may wish to consult the Euroseeds ment of its EDV was independent from the initial variety.position paper on the concept of EDVas currently standing on 10. A scientific threshold that serves to signalise whetherthe Euroseeds official website.an act of predominant derivation has taken place needs to be determined for each species or group of species. When exceed- Editors Note: ngela Martnez Lpez is Manager of ing this threshold, the above cited reversal of the burden ofIntellectual Property & Legal Affairs at EuroseedsEUROPEAN-SEED.COMIEUROPEAN SEED I 23"