‘Seminar on the interaction between plant variety protection and the use of plant breeding technologies’

Outcomes of UPOV Seminar on 22 March 2023

By Mia Buma

UPOV’s EDV working group discussions on the Principle of Essentially Derived Varieties are unlikely to reach a solution soon.

As you might remember, the discussion in the working group on the Explanatory Note (EXN) on EDV stalled. Therefore, the discussion was continued in UPOV’s Consultative Committee (CC), in which only member states participate and not the observers of UPOV. Additionally, the Seminar on the interaction between plant variety protection and the use of plant breeding technologies was organised and scheduled for 22nd March 22. UPOV hoped to collect more insight and information in this seminar to move the discussions forward in the CC. Although the seminar provided some insights, it became clear that some member countries strongly lobby for a narrow interpretation of the EDV principle due to biotech firms’ interests in their territories.

Just to refresh the discussion: New Breeding or Genetic Technologies (NGT) currently enable both single and multiple modifications of an initial variety in one act of derivation in a short period. This has the potential to undermine the protection of the initial variety, which is why it is desirable that a sufficiently broad interpretation of the UPOV Essentially Derived Variety (EDV) Principle is agreed upon between UPOV members.

More and more companies are focusing on biotech in agricultural and horticultural industries, making traditional breeding less attractive. However, ignoring traditional breeding is a dangerous development for the future. Conventional breeding should be a necessary and important focus alongside the application of biotech/new breeding methods.

Another reason that discussions in the CC stalled is that members and parties involved have difficulty fully appreciating the intention behind creating and establishing the EDV article in the UPOV Convention 1991. This means that they are losing sight of the meaning and purpose of the UPOV article 14, sub 5, Convention 1991. This meaning is: if a variety is essentially derived from a protected variety, the owner of the right of the protected variety may exercise his rights on the essentially derived variety.

This means whether the EDV is more valuable than the initial variety or whether the added trait (such as an important resistance) has a high economic value does not make a difference. This conclusion is based on the records of the diplomatic conferences held in the years 1987-1991 that led to the establishment of the UPOV Convention 1991.

Despite these records, some UPOV member states say it does make a difference. In their view, the example of using an NGT on an existing initial variety means that the owner of the initial variety can no longer exercise plant breeders’ rights on the initial variety. Consequently, the owner of the PBR is left empty-handed, and this interpretation of the EDV principle obviously undermines the practice of conventional breeding.

AIPH contributed to the seminar with a presentation from
Mr Huib Ghijsen on ‘Origin and Goal of EDV’

Mr Huib studied Plant Breeding (Wageningen University) and Law (Nijmegen University) and worked as a plant breeder and an expert in DUS testing for PBR. He participated in various Intellectual Property and UPOV working groups on behalf of the International Seed Federation (ISF).

As a veteran of PBR, Huib is well-informed about the diplomatic conferences of the UPOV Convention 1991.

Click here to read the text of the presentation.

‘In AIPH’s opinion, it would be important and relevant to focus on these matters at the NBT seminar and to emphasise that a clearly defined EDV principle creates the necessary balance between the PBR system on a plant variety on the one hand and a patent on a biotechnical feature on the other hand.’

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