b'SEEKING CLARITY ON EDV SYSTEM ROLES, ACCOUNTABILITIES AND CONDITIONST he principle of essentially derived varietiesrevised EDV Explanatory Notes. For example, pro-(EDV), as implemented under the 1991 Actvisions of the 1991 Act do not specify a role for the of the UPOV Convention, fortified the scope andPBR authority in determining whether a variety is strength of the Plant Breeders Right (PBR). Theor is not essentially derived from a protected vari-PBR granted to a breeder entitles them to decideety. Therefore, a PBR authority should not be imple-whether an EDV derived from their protected vari- menting EDV-related interpretations to modify or ety can be commercialized. At the same time, thenegate the right of an IVs owner to determine the breeder of the newly derived variety is entitled tocommercial fate of an EDV derived from his pro-seek and receive a PBR for the EDV, subject to sat- tected IV. Such actions would effectively diminish isfying the criteria for novelty, distinctness, uni- the scope of the PBR rights granted and deny equi-formity and stability. This implementation of thetable remuneration to the owner of the IV.EDV principle represented an important balanceThe seed and plant breeding sector believes between the intellectual property right granted tothe owner of a PBR-protected variety should be the breeder of the source or initial variety (IV)solely accountable for evaluating new varieties John H. Duesing used to derive an EDV and the rights conferredcommercialized by others and for determining to the breeder developing or discovering an EDVwhether a new variety has been derived from the under the breeders exemption. breeders protected IV.The owner of the PBR-UPOV has sought to encourage the develop- protected IV has the right to exclude the owner ment of standard guidelines on EDVs and to pro- of an EDV derived from that IV from undertak-mote a common understanding and deploymenting commercial activities or to seek compensation of EDV-related provisions among UPOV Membersfrom the EDV owner, regardless of whether the by issuing Explanatory Notes on EDV in OctoberEDV is granted PBR protection. 2009 and April 2017 and by holding EDV seminarsThe PBR authority should have no accounta-in October 2013 and October 2019.bility to manage, arbitrate or resolve EDV-related International and regional plant breeding anddisputes, including how the owner of an IV chooses seed associations formed the EDV Task Force1 into assert their rights against commercialization of 2019 to serve as the unified voice of the seed andan EDV. The options available for the owner of a plant breeding sector on EDV-related matters. InPBR-protected IV to assert their rights against the response to some recent inconsistencies regardingEDVs owner should include convening an inde-the interpretation of EDV provisions in the UPOVpendent technical panel of experts, appointing an Act of 1991, the EDV Task Force requested UPOVarbitration panel through a national or interna-to undertake the revision of the 2017 Explanatorytional association, and filing a complaint for review Notes on EDV in order to address points lackingand judgment by an appropriate judicial body. clarity and to eliminate confusion regarding cer- The ongoing revision of the UPOV Explanatory tain aspects of EDV, particularly its scope. TheNotes on EDV is a significant opportunity to ensure main purpose of the revision is to ensure a suffi- the EDV principle and EDV provisions under the ciently broad interpretation of the EDV principle1991 Act have a sufficiently broad scope and are and provisions and a uniform implementation andconsistently and effectively deployed, operation-application of the EDV conditions by all UPOValized and administered across UPOV Members. members. The American Seed Trade Association (ASTA) When UPOV met in October 2020, it estab- strongly supports revision of UPOVs Explanatory lished the Working Group EDV (WG-EDV)Notes on EDV and has issued a position paper on to undertake the process to revise the EDVAddressing EDV System Roles, Accountabilities Explanatory Notes. The resulting revised guidanceand Conditions, available with related resources will be critical to ensure EDV provisions are com- at www.betterseed.org/edv. monly deployed and administered across UPOV Members. The revision effort began in DecemberEditors Note: John Duesing is consulting man-2020 and is expected to finish in October 2021.ager for ASTAs EDV project, represents ASTA There are several important points relatingin ISFs engagement in current efforts of the to EDV system roles, accountabilities and condi- EDV Task Force and is a member of the UPOV tions that need to be addressed and clarified in theWorking Group on EDV. 1. Members of the EDV Task Force are International Seed Federation (ISF), International Community of Breeders of Asexually Reproduced Horticultural Plants (CIOPORA), Crop Life International (CLI), Euroseeds, Asia and Pacific Seed Alliance (APSA), African Seed Trade Association (AFSTA), and Seed Association of the Americas (SAA).EUROPEAN-SEED.COMIEUROPEAN SEED I 15'