10 February 2021
Please join us for a webinar on Tuesday the 16th of February 2021 at 13:00 Athens time. The speaker is Viola Prifti, HTW Berlin. The title of the talk is "The concept of “essentially derived variety”. How do EU courts decide?".
The moderator is Dr. Andreas Panagopoulos. To join us follow this link: https://hello.freeconference.com/conf/call/3011249
This webinar is free and open to all.
Abstract: This paper analyzes decisions of European Union (EU) courts on the concept of ‘essentially derived variety’ (EDV). The EDV is a legal fiction introduced into the text of the 1991 version of the International Convention for the Protection of New Varieties of Plants (UPOV) with the aim of extending the scope of breeder’s rights to ‘essentially derived varieties’. This was deemed necessary in view of genome modification developments which allowed competitors reduce breeding times and easily commercialize ‘cosmetic’ variations of the protected variety.
The understanding of the EDV concept is far from clear. Art. 14 (5) of the UPOV Convention refers to ‘the expression of the essential characteristics that result from the genotype or combination of genotypes of the initial variety’ while defining an EDV from an initial variety. This provision has proven to be difficult in practice because there is no agreement on the coefficient for measuring genetic similarity and its threshold value. In addition, different laboratories use different molecular markers which can provide different results with respect to EDVs. Several breeders’ associations have published guidelines on the determination of an EDV for some types of plant varieties. This is insufficient to provide clarity not only because specific guidelines are needed for each plant type but most importantly, biotechnology is in constant progress and it is not easy to measure living material. In contrast to the legal provision on genotypic features, most breeders prefer to rely on phenotypic characteristics. It goes without saying that this situation creates legal uncertainty. The International Union for the Protection of New Varieties of Plants itself called for a modification of the EDV provisions in 2019.
Due to challenges in measuring the genetic distance between different varieties and, often due to the lack of specialized courts on the matter, breeders solve controversies privately. Only a few EDV cases have been decided by EU courts. This paper examines these decisions and discusses their impact in different breeding sectors. The final aim is to provide more clarity for defining plant breeders’ rights.