The American Seed Trade Association has released a position paper on substantially derived varieties, which focuses on the important role and conditions of the substantially derived variety system, especially the scope and limitations of rights, responsibilities, authorizations and authorities.
American Seed Trade Association (ASTA) position paper on the role, responsibilities and conditions of the
Essentially Derived Varieties (EDV) system
Essentially derived varieties (EDVs) are an act passed by the International Convention for the Protection of New Varieties of Plants in 1991 An important new element in the text (UPOV'91) and an important improvement for Plant Breeders' Rights (PBR) and Plant Variety Protection (PVP) in International Union for the Protection of New Varieties of Plants (UPOV) member countries. The 1991 text of the UPOV Convention establishes a balancing mechanism for Plant Breeders' Rights (PBR)/Plant Variety Protection (PVP), allowing breeders who have made inputs and investments to develop protected varieties to substantively derive varieties from Additional benefits may be derived from substantially derived varieties developed by others from the protected original variety (IV).
Over the past thirty years since the 1991 text of the UPOV Convention, the International Union for the Protection of New Varieties of Plants has issued two explanatory notes on substantially derived varieties (published in October 2009 and April 2017 respectively). Both explanatory notes emphasize how many different phenotypic traits must exist between a new variety and an original variety to determine whether the new variety is a substantial derivative. In December 2019, with the encouragement of UPOV members and the plant breeding industry, UPOV decided to start revising the 2017 Interpretative Notes in accordance with its terms of reference and listening to the views and voices of breeders and the plant breeding industry.
The American Seed Trade Association’s position paper on substantially derived varieties focuses on the important role and conditions of the substantially derived variety system, especially the scope and limitations of rights, responsibilities, authorizations and authorities. This position paper identifies existing gaps and existing issues that deserve our attention. We believe that these issues should be addressed in a revised version of the UPOV explanatory notes on substantively derived varieties. The position paper deliberately does not address the issue of basic traits. The American Seed Trade Association strongly believes that the revision of the UPOV Explanatory Statement on substantially derived varieties should take into account the following points to ensure that the measures taken for substantially derived varieties are consistent and effective, thereby protecting the UPOV Convention 1991 Breeders' rights as set out in the text.
1. Each member of UPOV shall:
• Ensure that the Plant Breeders’ Rights (PBR)/Plant Variety Protection (PVP) system is effective and balanced to protect the rights of those who breed, discover and derive new varieties;
• Ensure that the breeder/owner of the original variety (IV) retains his/her title to the original variety and the right to authorize the commercialization of any substantial derivative derived from this original variety.
2. The competent authorities responsible for Plant Breeders’ Rights (PBR) and Plant Variety Protection (PVP) among UPOV members should be responsible for measuring whether a new variety has specificity, uniformity and stability (DUS) without regard to the new variety. economic value or agronomic importance. Responsibility for determining the economic value or agronomic importance of a new variety should rest with other stakeholders, which may include the national or regional authorities responsible for Value in Cultivation and Utilization (VCU) and variety registration.
3. UPOV Members The authorities responsible for Plant Breeders’ Rights (PBR) and Plant Variety Protection (PVP) are only responsible for deciding whether a new variety qualifies for plant variety protection and are not responsible for determining whether a variety is a protected variety. Substantially derived varieties.
4. According to Article 14 of the 1991 Convention of the International Union for the Protection of New Varieties of Plants, the owner of the original variety may assert his/her rights with respect to a new substantially derived variety.If certain textual interpretations of substantially derived varieties would restrict the owner of the original variety from exercising his/her rights as described above, UPOV members shall not take measures based on such interpretation; unless it is in the public interest and the owner of the original variety can Article 17 of the 1991 Act on fair remuneration. For example: a variety that is novel, specific, and is eligible for Plant Breeders’ Rights (PBR)/Plant Variety Protection (PVP) protection. The new variety exhibits traits of economic, agronomic or social value that cannot be Used as a basis by the Plant Breeders’ Rights (PBR)/Plant Variety Protection (PVP) authorities to rule that the new variety is not a substantially derived variety, thereby reducing the Plant Breeders’ Rights (PBR) enjoyed by the owner of the original variety (IV) /Plant Variety Protection (PVP) legitimate rights and deprive the breeder/owner of fair remuneration.
5. The authorities responsible for Plant Breeders’ Rights (PBR)/Plant Variety Protection (PVP) are not responsible for managing and resolving disputes related to substantial derived varieties, such as when the owner of the original variety asserts his/her rights against a substantial Such disputes arise over the commercialization of derived varieties. The 1991 text of the UPOV Convention does not provide or specify that the competent authority responsible for Plant Breeders’ Rights (PBR)/Plant Variety Protection (PVP) should be responsible for arbitrating or settling disputes relating to substantially derived varieties.
6. For varieties protected by Plant Breeders’ Rights (PBR)/Plant Variety Protection (PVP) provisions, it is mainly the responsibility of their breeders/owners to evaluate new varieties commercialized by others and make a preliminary judgment whether the new varieties have Possibly from its own protected breed.
7. The original variety owner may compare the traits used by the Plant Breeders’ Rights (PBR)/Plant Variety Protection (PVP) authorities to determine specificity, by evaluating any other morphological and physiological traits, and/or by Genetic analysis to determine the main derivation of a new variety.
8. To determine the major derivation of a new variety, the most meaningful measure is to use DNA-based genetic analysis with adequate genome coverage and demonstrated discriminatory power to distinguish cultivars, including those that are closely related pedigrees, or to distinguish breeds that differ by only a few or a few phenotypic traits that are used to determine the specificity of the breed.
9. Assuming that a specific variety exhibits above-average genetic identity, DNA-based genetic analysis can be used to compare the variety to those protected under Plant Breeders’ Rights (PBR)/Plant Variety Protection (PVP) provisions. Variety comparison, even if the two are different in multiple traits, it is likely to be considered that the variety is mainly derived from varieties protected by Plant Breeders’ Rights (PBR)/Plant Variety Protection (PVP) provisions.
10. According to the 1991 text of the UPOV Convention: The owner of an original variety protected by a new plant variety has the right to prevent the owner of a substantially derived variety derived from the original variety from taking any commercialization action, regardless of the substantial derivation. Whether the variety is protected under Plant Breeders’ Rights (PBR)/Plant Variety Protection (PVP) provisions.
11. The explanatory document for a substantially derived variety should provide clear guidance so that the owner of the original variety can follow the rules in selecting procedures and methods when asserting his rights against the owner of the substantially derived variety.
12. If a plant breeder's right (PBR)/plant variety protection (PVP) variety owner determines that a new variety is mainly derived from his/her variety, that is, the new variety is likely to be a substantially derived variety, Then the owner of the original variety has the right to decide whether to inform the recognized owner of the substantially derived variety: there is a strong indication that the new variety is substantially derived, and can discuss with the owner of the substantially derived variety whether it is necessary and possible to obtain commercial license. If the two parties fail to reach an agreement, the owner of the original variety may choose one or more of the following methods to assert his/her rights against the owner of the substantially derived variety.
• The owner of the original variety may certify that a new variety is a substantial derivative by applying to an independent technical panel for a formal review and decision in accordance with the framework and standards established by national seed laws and/or seed associations.
• When a dispute arises between the owner of the original variety and the owner of the substantively derived variety, he or she may request the national or international seed industry association to convene an arbitration committee for mediation and resolution.
• Original breed owners may submit their findings, claims and appeals to the appropriate judicial authority for review and determination.
13. When resolving disputes regarding substantially derived varieties, DNA-based genetic analysis must be a universally accepted standard in all these avenues of enforcement to assess genetic identity and demonstrate the primary source of derivation.
14. The revised explanatory note for substantially derived varieties should be:
• Calls for continued education and training to be promoted by the International Union for the Protection of New Varieties of Plants and breeding industry associations to provide companies and breeders with the operation and technology of substantially derived varieties systems information; • Support breeders to work collaboratively to develop industry-accepted methods and standards to determine the standards for substantive derived varieties of each crop according to different crops;
• Confirm and recognize that the breeding industry has developed and is developing standards Standards for determining substantively derived varieties.
Source: National Academy of Agricultural Sciences . The copyright belongs to the original author and is not used for any commercial purposes. If there are any copyright issues, please contact us in time.
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