b'EDV: A PROTECTION MECHANISM,NOT PLAGIARISM PREVENTION T he main purpose of the principle of Essentiallyences result only from the act(s) of derivation as Derived Varieties (EDV) in the UPOV 1991 Actin recurrent backcrossing, this will typically result is to provide effective protection to original gen- in an EDV. If differences result from the random otypes, i.e., Initial Varieties (IV), resulting fromrecombination via regular crossing and selection, crossing and selection. At the time of the adop- usually the resulting variety will not be an EDV.tion of the UPOV 1991 Act, the EDV principle wasAlthough a close phenotypic similarity meant to include mutants, GMOs and varietiesbetween an EDV and its IV isnt a statutory require-resulting from repeated backcrossing in the scopement, an EDV will typically retain at least some of protection of their IV1. essential characteristics of its IV, simply because Among EDVs, mutants represent the largestthese characteristics are the reason why the IV group, joined recently by varieties resulting fromwas chosen for the EDV development.New Breeding Technologies (NBT). With the helpStill, some believe that the main purpose of NBT, multiple modifications can be quicklyof the EDV principle is to prevent plagiarism5introduced in an IV in one or more acts of deri- a narrow interpretation that allows for only one Dr. Edgar Krieger vation. If not deemed EDVs, such varieties wouldor very few differences between an EDV and its undermine the protection of the IV. IV. This is an erroneous approach. A red or white To determine the level of conformity thatmutant of a pink cut rose is not plagiaristic, and exists between an EDV and its IV we need to takea scab-resistant6 apple developed by NBT is not a a look at 2 out of the 3 requirements for a variety tocopycat variety of its IV. be deemed an EDV. According to Article 14 (5) (b),The main plagiarism prevention tool, in the these include distinctness from and conformity toUPOV 1991 Act, is not the EDV principle but the the IV in the expression of essential characteris- provision about varieties, which are not clearly dis-tics2, except for those differences resulting fromtinguishable from the protected variety (Art.14 (5) act(s) of derivation.(a) (ii)). Such varieties are slightly different from An EDV must be distinct from the IV. Thisthe pre-existing reference variety but are not dif-should imply that an EDV is clearly distinguishableferent enough to be considered clearly distinguish-from the IV and expresses a clear difference in aable. According to the law, for such varieties no DUS3 characteristic. PBR protection shall be granted. Additionally, they An EDV shall also conform to the IV in thefall into the scope of protection of the protected expression of essential characteristics, exceptvariety, irrespective of whether they are derived for those differences resulting from act(s) of der- from the protected variety. Unfortunately, this ivation. Such differences shall not be taken intoprinciple is not commonly applied in UPOVs cur-account when assessing whether a predominantlyrent daily practice. Due to a very small minimum derived variety is an EDV4 . distance requirement, even varieties with minor In mono-parental varieties, all differencesbotanical differences from the reference variety result necessarily from one or several acts of der- often pass the distinctness test, with the unfortu-ivation, so that there is no limit in the number ofnate result that the scope of PBR protection covers differences between the EDV and its IV. The con- only the protected variety itself and not plagiaristic clusion is that mono-parental varieties are typi- varieties. This is a unique situation in IP laws7. cally EDVs.The situation is slightly different in multi-pa- Editors Note: Dr. Edgar Krieger is Secretary-rental varieties, where the differences may resultGeneral of the International Community of from either a random recombination of genotypes,Breeders of Asexually Reproduced Horticultural or from one or more acts of derivation. If all differ- Plants (CIOPORA).1. The examples in Article 14 (5) (c) of the UPOV 1991 Act refer to the methods which lead to such varieties.2.The essential characteristics of a variety will differ from one species to another and may evolve over time. They may be of different nature (e.g phenotypic, agronomic or end user focused), but must be useful for users of the plant material. Purely cosmetic characteristics are not considered essential.3. Distinctness, Uniformity and Stability4. See Regional Court of Dsseldorf, Germany, 4a O 70/17, no 110.5. Or, in plant breeding terms cosmetic breeding or copy breeding.6. A resistance is a phenotypic characteristic, although not visible at first glance.7.Other IP systems include a tool to prevent plagiarism/blunt imitation, e.g., the inventive step/non-obviousness-test and the doctrine of equivalents-test in Patent law and the confusingly similar test in Trademark law.EUROPEAN-SEED.COMIEUROPEAN SEED I 17'