b'register a variety as an EDV in the registernew assessment methodologies and breed- argue that a definition of which charac-if a court has established that the varietying developments in the crops themselves.teristics are essential or not would be is an EDV. It is considered that register- Even if the method may not be suitable inneeded in the EU PVP Regulation. To ing an EDV under the described circum- all cases it should remain as an importantdefine specific essential characteristics stances contributes to transparency. example of a way to solve disputes. would add another layer of complexity to An EDV must be distinct, predom- Certain methods of breeding willan already complex matter. This could inantly derived from and remain essen- in my opinion always lead to the con- have been the reason why a more general tially conform to the IV. The exerciseclusion that the new variety is pre- wording was introduced. However, the aims at a delicate balance, which maydominantly derived from the IV, suchmere fact of using a different wording in even seem to be a conundrum: theas mutants, GMOs, CRISPR. In fact,the EU PVP Regulation than in the UPOV derived variety, all while being clearlymutants are already mentioned in theConvention without explaining why has distinct, must reproduce the essentialUPOV Convention and the EXN as exam- added to the element of uncertainty. genotype-based characteristics of theple of a breeding technique that may leadContinuing to speculate, I do however not initial one, other than the differencesto an EDV. However, in addition to beingbelieve that the idea of the EU legislator created by derivation.predominantly derived, the condition ofwas to deviate from the UPOV Convention The issue of distinctness will not beconformity must be fulfilled in order foron the substance. addressed in this paper since the tools,the variety to be considered an EDV. Emphasis should in my opinion be to establish that condition, are less con- In regard to the degree of con- made to the fact that the EDV should troversial in the UPOV world. As regardsformity required between the IV andconform essentially to the initial vari-the question if a variety is predominantlythe EDV, opinions differ. In the UPOVety. This is clear under EU law as well derived from the IV, industry has forConvention reference is made to con- as under the UPOV Convention. To draw certain species agreed on thresholds asformity to essential characters. The EUa line on how many differences and how regards genetic similarity. If the thresholdPVP Regulation refers to the fact that theimportant such differences are for the is reached, the burden of proof to demon- EDV must conform essentially to the IVEDV to remain sufficiently conform to the strate that the variety is not an EDV isin the expression of the characteristicsIV, would be quite a challenge. This may passed on to the breeder of the allegedthat results from the genotype or combi- vary depending on factors such as the EDV. This methodology seems pragmaticnation of genotypes of the IV, except forcharacteristic in question, the breeding and has been applied amongst breedersthe differences which result from the actmethod used and the species in question.successfully. However, both the methodol- of derivation.To read the article in full, please see ogy and the quantitative benchmarks forThere are no preparatory worksour website.the measurement of genetic similarity mustto the EU legislation as to why the dif-be crop-specific. A one-size-fits-all solu- ference in the EU PVP Regulation wasEditors Note: Martin Ekvad is President tion is not effective. Furthermore, it seemsintroduced. I do not think it is too bold toof the Community Plant Variety Office appropriate that the quantitative bench- assume that the EU legislator wanted to(CPVO)marks should be updated and reviewedavoid introducing the notion of essential regularly, in order to adapt them both tocharacteristics since many would then Clarifications neededTHE US PVPO POSITION ON EDV.BY: JEFF HAYNESI n Oct 2018, UPOV discussed the revisionif different than the owner of the new vari-of its Explanatory Note of Essentiallyety, for infringement. The US PVPO does Derived Varieties (EDVs). Several con- not have authority to decide if a variety tributions for text revisions had come in,is a an EDV. We noticed that a statement and many questions were raised. The UPOVindicating this notion was deleted from the Member States differed on some of theprevious version of the Explanatory Note, main items, and it was agreed to organizeand we would be interested in additional a public seminar in Oct. 2019 with severaldiscussions regarding this statement and speakers to try and get some more clari- whether it is possible to have the statement, fication on this complex topic. Europeanor a similar statement, added back to the Seed wanted to learn more about the var- Explanatory Note on EDV he adds. In ious viewpoints on EDVs, so we sat downaddition, we desire additional clarification with Jeff Haynes, Acting Commissionerfor a recent confusion with EDV character-of the U.S. Plant Variety Protection Officeistics says Haynes. There appears to be (PVPO), to get his take on the matter. an idea concerning a distinction between Haynes shares that when talking aboutJeff Haynes essential and non-essential characteristics Essentially Derived Varieties, the US Plantor important and non-important character-Variety Protection (PVP) Act allows for theistics. We would like to know if UPOV make protection of an Essentially Derived Varietyknown public or protected varieties. Itsuch distinctions. Based on section (b)6 (i) (EDV) if the variety is new, distinct, uni- is important to note that this can be con- (vi) of the Explanatory Notes, we do not form, and stable compared to any othertested by the owner of the parent variety,see such a distinction he underlines.EUROPEAN-SEED.COMIEUROPEAN SEED I 29'