scholarly journals Towards a Fair Scope of Protection for Plant Breeders’ Rights in an Era of New Breeding Techniques: Proposals for a Modernization of the Essentially Derived Variety Concept

Agronomy ◽  
2021 ◽  
Vol 11 (8) ◽  
pp. 1511
Author(s):  
Sven J. R. Bostyn
Keyword(s):  
Plant Breeding ◽  
Free Access ◽  
New Variety ◽  
Plant Variety ◽  
Essentially Derived Varieties ◽  
New Varieties ◽  
Scope Of Protection ◽  
New Breeding Techniques ◽  
Breeding Techniques ◽  
Plant Breeders Rights

Plant breeders’ rights (PBRs) are an important IP right, and as plant breeding has a crucial role to play in sustainability, it is vital that innovations in plant breeding receive the appropriate innovation incentives. The full breeders’ exemption ensures that there is always free access to the plant variety protected by a PBR for developing new varieties. The price to pay for this exemption is that PBR holders cannot prevent third parties from taking advantage of their efforts and investments in developing a new variety. This invites free-riding, at the detriment of the PBR holder. The concept of “essentially derived varieties” (EDV), introduced in 1991, provided a “fix” for this problem. It allows PBR holders to extend, at least to some extent, the scope of protection of their PBR to those varieties which use all or most essential characteristics of the initial protection variety. Decades have passed, but no adequate interpretation of the complex EDV concept has been found. The advent of new breeding techniques (NBTs) has made the discussion about a fair scope of protection of PBRs all the more relevant. This necessitates a modernization of the EDV concept, if the PBR system is to remain relevant and continue to be an innovation-incentivizing mechanism. I argue that a broader scope for the EDV concept is essential and fair. Determining what essential derivation is will remain a difficult task also in the future. This is why I have additionally proposed a collaborative reward model, which will facilitate the functioning of the EDV system and is capable of providing more legal certainty in this area.

Essentially Derived Varieties in View of New Breeding Technologies – Plant Breeders’ Rights at a Crossroads

2020 ◽  
Author(s):  
Michael A Kock
Keyword(s):  
Full Potential ◽  
International Convention ◽  
System A ◽  
Essentially Derived Varieties ◽  
New Varieties ◽  
Genetic Conformity ◽  
The Doctrine Of Equivalents ◽  
Scope Of Protection ◽  
New Breeding Technologies ◽  
Plant Breeders Rights

Abstract Plant breeders’ rights (PBR) within the framework of the International Convention for the Protection of New Varieties of Plants (UPOV) are the sui generis intellectual property (IP) system of choice for plant varieties. It achieves a balance between the protection of new varieties and access to protected breeding material for further improvement. The extension of the protection to essentially derived varieties (EDVs) in the UPOV 1991 Convention1 was controversial from the beginning as it creates a tension with the breeders’ exemption. The 2017 UPOV Explanatory Notes on EDVs further fueled the debate as they were seen to limit the EDV extension, while some argue that the EDV scope should extend to all predominantly derived varieties merely on the basis of genetic conformity. With the rise of new breeding technologies (NBTs), legal certainty on the EDV definition is of fundamental importance to avoid a chilling effect on these promising technologies. Not only would a broad EDV definition block critical innovation and restrict the full potential of NBTs to a few multinational companies,2 it would also substantially limit the scope of protection of NBT-derived varieties, as an EDV itself is not entitled to the EDV extension: Valuable NBT-derived varieties would become easy prey for plagiarism. This article shows that the legislative intent of the EDV provision does not limit innovative breeding to conventional crossing and that there is no basis for extending EDV protection to new, innovative varieties which do not retain the essential characteristics of the initial variety (IV) even if there is a high genetic conformity. By analogy with the doctrine of equivalents under the patent system, a derived variety cannot qualify as an EDV if it (i) does not retain all the essential characteristic of the IV and (ii) is ‘non-obvious’ and causes a ‘significant technical progress of considerable economic interest’. The article finally suggests guidelines and processes to overcome the current EDV dilemma.

Essentially derived varieties in the era of new breeding techniques

2021 ◽  
pp. 71-88
Author(s):  
Serena Mariani
Keyword(s):  
Genetic Variation ◽  
High Efficiency ◽  
Ease Of Use ◽  
Plant Variety Protection ◽  
Independence Principle ◽  
Plant Variety ◽  
Essentially Derived Varieties ◽  
Variety Protection ◽  
New Breeding Techniques ◽  
Breeding Techniques

The current study sets out to analyse the concept of "essentially derived variety" (EDV) envisaged by the plant variety protection regime when new breeding techniques (NBTs) are employed in the development of new plant varieties. The use of NBTs to develop new plant varieties has grown rapidly over the last years because of their ease of use and their high efficiency. NBT varieties are mono-parental and retain most of the genome of the initial variety, thus most of its essential characteristics. The problem arises when the initial variety used as the source of genetic variation is a variety protected by a plant variety right. In this case, the question is whether the EDV concept should apply to the second variety obtained by NBTs and what can break the EDV chain. It must be noted that the EDV concept has revolutionised the plant variety protection system since it introduced the principle of "limited dependence" as an exception to the general independence principle governing this system. Therefore, as it is an exception, it should be interpreted rigorously.

scholarly journals Integration of Transformation Technology and Conventional Plant Breeding of Cereal Plants

2002 ◽  
pp. 75-80
Author(s):  
Zoltán Bedő
Keyword(s):  
Plant Breeding ◽  
Genetic Technology ◽  
Fertile Plant ◽  
Transformation Technique ◽  
Donor Genome ◽  
New Variety ◽  
Conventional Breeding ◽  
Plant Variety ◽  
Homozygous Genotype ◽  
Cereal Plants

The integration of plant breeding and plant transformation is needed because we have to create a homozygous genotype of great agronomic value by conventional breeding before the application of genetic technology with which we modify it by using a gene or genome sequence. The aim of integrated plant breeding is to trigger such advantegous changes by genetic technology which can not be achieved via conventional breeding or just with considerably weaker efficacy. By transformation, the plant’s agronomic performance, the efficiency and security of its production will improve and it will enable more versatile uses of the plant. Genetic technology is one sequence of a new plant variety’ breeding. To create a transgenic variety, the isolation of a gene or a sequence of a gene from the donor genome for tranformation, a homozygous plant or target genome that is suitable for transformation and is created via conventional breeding methods, an effective transformation technique and the establishment of the new variety from the transformed, fertile plant are needed. The transgenic plant should be made suitable for establishing a variety by conventional breeding so that it could be produced securely, its growing could contribute to the development of modern, sustainable agriculture, its seed could be produced profitably, it could meet the reqiurements of DUS and that the changes indicated by the transgene could provide such economic advantages compared to the original variety, which have real commercial value.

scholarly journals Perlindungan Hukum Bagi Pemulia Varietas Tanaman (Petani) Pasca lahirnya Undang-Undang Nomor 22 Tahun 2019 tentang Sistem Budi Daya Pertanian Berkelanjutan

2021 ◽  
Vol 8 (3) ◽  
pp. 867-880
Author(s):  
Muhammad Ihsan
Keyword(s):  
Intellectual Property ◽  
Plant Breeding ◽  
Intellectual Property Rights ◽  
Legal Protection ◽  
New Variety ◽  
Legal Rules ◽  
Legal Provisions ◽  
Plant Variety ◽  
The Republic ◽  
The Government

Pemuliaan tanaman menghasilkan sebuah varietas baru tanaman merupakan salah satu bagian dari Hak Kekayaan Intelektual (HKI) yang kemudian diatur sesuai dengan ketentuan akan hukum yang berlaku di Indonesia yang bertitik tolak dari ketentuan GATT/TRIPs. Kemudian bagaimana upaya yang dilakukan oleh Pemerintah Republik Indonesia guna melindungi hak-hak yang di miliki oleh Petani Kecil, lebih lanjut kita juga dapat melihat bagaimana pengaturan yang dilakukan oleh aturan hukum internasional guna melindungi Kepentingan Petani Kecil.Kata kunci : Perlindungan Hukum, Pemuliaan Varietas Tanaman, Pemuliaan, Petani Plant breeding to produce a new variety of plants is one part of the Intellectual Property Rights (IPR) which is regulated in accordance with the applicable legal provisions in Indonesia which start from the provisions of GATT / TRIPs. Then how are the efforts made by the Government of the Republic of Indonesia to protect the rights of Smallholders. Furthermore, we can also see how the arrangements are made by international legal rules to protect the Interests of Smallholders.Keywords: Legal Protection, Plant Variety Breeding, Breeding, Farmers

scholarly journals Legal protection of plant biotechnological inventions

1989 ◽  
Vol 61 (5) ◽  
pp. 405-414
Author(s):  
P. T. Vanhala ◽  
T. Pehu ◽  
H. G. Gyllenberg
Keyword(s):  
Plant Breeding ◽  
Legal Protection ◽  
The United States ◽  
Plant Production ◽  
Breeding Methods ◽  
Industrial Countries ◽  
Plant Variety ◽  
New Varieties ◽  
Variety Protection ◽  
Biotechnological Inventions

Within biotechnology, plant production is regarded as one of the most promising adaptations. New plant breeding methods are considered to better fulfil the requirements set on patentability than the traditional breeding methods. In Europe, a plant variety can be protected by special legislation. The present patent laws in Europe are not applied to plant biotechnological inventions. The United States has three systems under which new varieties of plants may be protected. These include The 1930 Plant Patent Act, The 1970 Plant Variety Protection Act and The 1952 Patent Statute. Companies that have specialized in plant breeding and organizations representing the industrial countries recommend improvements to the legal protection. On the other hand, farmers and the developing countries are against better protection.

scholarly journals Evolution, importance and evaluation of cultivar protection in Brazil: the work of the SNPC

2012 ◽  
Vol 12 (spe) ◽  
pp. 99-110 ◽  
Author(s):  
Fabrício Santana Santos ◽  
Daniela de Moraes Aviani ◽  
José Antônio Fernandes Hidalgo ◽  
Ricardo Zanatta Machado ◽  
Stefânia Palma Araújo
Keyword(s):  
Scientific Community ◽  
Agricultural Sector ◽  
International Affairs ◽  
Plant Variety Protection ◽  
Legal Provisions ◽  
Plant Variety ◽  
New Varieties ◽  
Variety Protection ◽  
Socioeconomic Benefits ◽  
Plant Breeders Rights

Law no. 9.456/97 instituted the Plant Variety Protection Act (Lei de Proteção de Cultivares - LPC) in Brazil, bearing a range of positive aspects for Brazilian agriculture, such as the increase in the number of new varieties in Brazil, both domestic and foreign; incentives for breeding activities in the country; and socioeconomic benefits to the agricultural sector. In 15 years of activity in the sphere of the Ministry of Agriculture, Livestock and Food Supply (Ministério da Agricultura, Pecuária e Abastecimento), the National Plant Variety Protection Service (Serviço Nacional de Proteção de Cultivares - SNPC) has consolidated its activity, not only through its credibility in analysis and granting of plant variety protection (PVP) applications, but also through its proactive stance in technical and legal activities in Brazilian and international affairs, as well as involving the scientific community in a participatory manner in the actions it develops. Nevertheless, in spite of these advances, there is a great deal of discussion regarding the limitations to effective exercise of plant breeders' rights caused by some legal provisions of the LPC that may lack refinement.

Substantive Law

2021 ◽  
pp. 27-58
Author(s):  
Gert Würtenberger ◽  
Paul van der Kooij ◽  
Bart Kiewiet ◽  
Martin Ekvad
Keyword(s):  
Relevant Information ◽  
Breeding Scheme ◽  
International Union ◽  
New Variety ◽  
Plant Variety ◽  
New Varieties ◽  
The Creation ◽  
Substantive Law

This chapter looks at the system laid down in the International Union for the Protection of New Varieties of Plants (UPOV) Convention, which implies that only the breeder of a variety has a claim on a plant breeders' right. It analyses the UPOV definition that qualifies the employer of the person who bred, or discovered and further developed, the variety of plants as the breeder. It also elaborates the responsibility of the Community Plant Variety Office (CPVO) in examining the entitlement to a Community plant variety right. This chapter reviews the technical questionnaire that requires the applicant to indicate 'breeding scheme, parents, other relevant information' for the completion of the form to confirm the credibility of plant breeders. It talks about the practice of the CPVO, which shows that the notion of breeding encompasses all techniques that are aimed at the creation of a new variety.

scholarly journals DUS testing for plant variety protection: Some researchable issues

2019 ◽  
Vol 79 (01S) ◽  
Author(s):  
S. K. Chakrabarty ◽  
Dipal Roy Choudhury
Keyword(s):  
Plant Species ◽  
Genetic Constitution ◽  
Genetic Purity ◽  
Crop Species ◽  
New Variety ◽  
Cross Pollination ◽  
Plant Variety ◽  
Dus Testing ◽  
New Varieties ◽  
Variety Protection

In order to implement effectively Protection of Plant Varieties and Farmers’ Rights Act, 2001 testing of new varieties for Distinctiveness (D), Uniformity (U) and Stability (S) is essential. Based on field and laboratory trials along with the most similar variety a new variety is compared for the characteristics which describe the variety. Distinctiveness assessment of a new variety apparently looks easy but actually it is not so particularly in case of crop species maintained /reproduced through often cross pollination and cross pollination owing to presence of plants with varied expression in some characteristics. Similarly, uniformity assessment of a variety ensures its genetic purity. The crop specific DUS test guideline has been developed and followed for plant variety assessment to register a new variety. Further there is enough scope to comprehend the guidelines for the benefit of plant variety examiners. To make the comparison scientific and valid some statistical procedures are used. Plant varieties differ genetically and the differences are expressed in the form of phenotypes (characteristics). The level of difference depends not only on the genetic constitution of the characteristics but also on the sample size, level of confidence, reject numbers etc. These are required to be studied in each plant species keeping in mind the overall variation available among the varieties in a plant species and easiness in the registration process. In view of influence of growing environment on the quantitative characteristics there is need to identify a separate set of example varieties for proper description and assess distinctiveness of new varieties for its protection.

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