Unique Protection for Certain Types of Varieties
In addition to providing a mechanism for protecting varieties arising from plant breeding, the UPOV Convention spells out special considerations for three specific types of varieties, namely:
1) Varieties which are “essentially derived” from a protected variety
2) Varieties which are not clearly distinguishable from a protected variety
3) Varieties whose production requires the repeated use of a protected variety
Essentially derived variety (EDV): Is a plant variety that is predominantly derived from another variety, and retains the expression of the essential characteristics that result from the genotype or combination of genotypes of the initial variety from which it was bred. The EDV must also be clearly distinguishable in the expression of its few changed characteristics when compared to the initial variety from which it was bred. Since EDV’s only differs from the initial variety in a few key characteristics, it is usually the result of selecting natural or induced mutants, a somaclonal variant, or selecting individual variant plants from backcross breeding or genetic transformation. An example of an EDV would be backcrossing a gene for resistance to a specific pathogen from a donor parent into a high performing recurrent parent. This would result in a new variety that retained all the essential characteristics of the initial variety, but was clearly distinguishable in one key difference, the disease resistance.
The purpose of having an EDV provision within UPOV is to ensure that the breeders of successful and innovative plant varieties are acknowledged and fairly compensated when another breeder only makes minor changes to that variety. Any breeder can use a protected initial variety (Variety A) to breed an EDV (Variety B). The breeder of an EDV variety can seek protection of that variety without seeking permission from the breeder of the initial variety. However, if a breeder of an EDV wishes to commercialize and sell that variety that must reach an agreement with the breeder of the initial variety.
Varieties which are not clearly distinguishable: This provision means that if a breeder protects a variety (Variety A) and another variety is identified (protected or not) that is indistinguishable from that variety (Variety B), the breeder’s right extends to also include the variety that is not clearly distinguishable. The intent is to curtail plagiarism or forgery of someone else’s innovation.
Varieties whose production requires the repeated use of a protected variety: Some commercially available varieties, such as hybrids, are the result of crosses made between two or more parental varieties. The UPOV Convention requires that if a protected variety is used repeatedly to produce another variety, then protection is extended to that other variety that is produced (e.g. the hybrid).