b'THE EDV CONCEPT AND THE BREEDERS EXEMPTIONO ver the past 30 years, the EDV concept,To facilitate the assessment of what level of giving the right to the breeder of the initialgenetic conformity is higher than the typical level variety (IV) to define the conditions under whichreferred to above, breeders have developed genetic the commercialization of an EDV bred from hissimilarity thresholds for some species. The typical protected IV can take place, became a principle oflevel of genetic conformity that one can obtain by PBR protection and an important tool for ensuringregular crossing and selection varies from crop to balanced and efficient protection for plant varie- crop. Therefore, these thresholds have to be devel-ties. It has been subject to many discussions andoped on a crop-by-crop basis. But even with a high the emergence of new breeding techniques repre- or higher than average genetic similarity present sents yet another challenge for its efficient inter- in the putative EDV, it is possible that no act of pretation and implementation.predominant derivation from the IV took place. The thresholds therefore can be used to establish THE EDV PRINCIPLE AND THE BREEDERSthe likelihood of predominant derivation and to EXEMPTION trigger the reversal of the burden of proof allowing Szonja Csrg One can say that the EDV principle is a way tothe breeder of the putative EDV to show that his compensate the breeder of the protected IV for thevariety was not predominantly derived from the IV.predominant use of his variety by another breeder.In the assessment of conformity1, one will Under the breeders exemptionwhich is a keyhave to consider where the differences that are cornerstone of the UPOV PBR systema breederpresent in the putative EDV come from and will is free to use or reuse all the characteristics of ahave to disregard the ones resulting from the protected variety, as a source of initial variation,act(s) of derivation. Where two or more genomes in a new combination. In comparison, in the caseare combined, the differences may result from of an EDV, the specific combination of character- the random recombination of the different geno-istics of the protected IV is being used and essen- types used (regular crossing and selection), and tially maintained, and therefore the IV is not usedthe resulting variety is typically not an EDV. The as a source of initial variation but is specificallydifferences, however, may also result from one or chosen with the view of retaining the expressionseveral acts of derivation only, where it is to be of its essential characteristics. Therefore, in orderexpected that apart from these differences, there to avoid the misuse of the breeders exemption, thewill be conformity in the essential characteristics breeder of the protected IV deserves a benefit fromof the IV as these characteristics are the reason the EDV. However, it is crucial where to draw thewhy the developer of the putative EDV has specif-line to make sure that the extension of the scope ofically chosen this particular protected IV. In such the PBR from a protected IV to an EDV effectivelya scenario the resulting variety is typically an EDV.prevents the undermining of the IP right of the breeder of the IV while not disturbing the breedersCONCLUSIONexemption and its purpose.The EDV principle is very important to provide for an effective protection for plant breeders and HOW TO MAINTAIN THE BALANCE? requires an interpretation and implementation that Looking at the requirements that an EDV needs tocan accommodate current and future technologi-fulfill, one can state that predominant derivationcal developments. At the same time, breeders need (characterized by a high genetic conformity) is areassurance that the use of protected varieties, as prerequisite. Predominant derivation implies thatinitial sources of variation, for further breeding more of the IV is retained in the derived varietywill not be jeopardized and the results of their than what would normally be retained of a parentclassical breeding efforts will not be considered variety by regular crossing and selection. ThisEDVs. The EDV Task Force developed a careful 1.The Convention statesmeans that the predominant derivation must leadwording to reflect this important balance. This that except for the differences which resultto a genetic conformity which is higher than thewording will be offered to the UPOV EDV Working from the act of deriva- genetic conformity typically obtained by regularGroup for consideration in the revision process of tion, the EDV conformscrossing and selection with the IV. In cases wherethe UPOV explanatory notes on EDV. to the initial variety in thetwo or more genomes are combined, predominant expression of the essen- derivation may result from selectively retaining theEditors Note: Szonja Csrgis Director tial characteristics that result from the genotypegenome of the IV such as, for instance, repeatedIntellectual Property and Legal Affairs at of the initial variety. backcrossing with the IV. Euroseeds.16IEUROPEAN SEEDIEUROPEAN-SEED.COM'