Plant Variety Rights Protection and Essentially Derived Varieties: A Fresh Proposal to Untie the Gordian Knot

The concept of essentially derived varieties (EDVs) under the UPOV Convention 1991 has presented many challenges both to the UPOV and users of the system. The concept of EDVs is not only framed in rather difficult language in the statute, it has proven equally difficult to apply. Moreover, gaining consensus on the exact interpretation of the concept, left to be implemented later on by courts and/or guidelines, has been an equally challenging task due to a lack of clarity in the provisions of the UPOV 1991 Convention. This article constitutes a novel and original contribution to the research that has been carried out in the area of EDVs. Novel approaches are necessary to untie the EDV knot. The approaches presented here are inspired by other areas of (intellectual property) law. A careful study of the solutions presented herein demonstrate that at least some of them can effectively put an end to at least some of the deadlock and legal uncertainty surrounding the EDV concept. It is hoped that this contribution and the approaches it puts forward can be the catalyst for a new debate, which is not only necessary but also long overdue.