2013 CIOPORA Chronicle
CIOPORA annual magazine on Intellectual Property protection for plant innovations 2013. Produced in cooperation with FloraCulture International. Read in the 2013 issue: - PBR topsy-turvy. How UPOV and its members turn the system upside down - Breeding industry ‘manifesto’ reflects strong visions and daily practice - Marketability of innovation – the power of ideas in horticulture - Contemporary marketing solutions for horticultural businesses - Hydrangeas in a PVR squeeze - Clearly or just about distinguishable? and more...
CIOPORA annual magazine on Intellectual Property protection for plant innovations 2013. Produced in cooperation with FloraCulture International.
Read in the 2013 issue:
- PBR topsy-turvy. How UPOV and its members turn the system upside down
- Breeding industry ‘manifesto’ reflects strong visions and daily practice
- Marketability of innovation – the power of ideas in horticulture
- Contemporary marketing solutions for horticultural businesses
- Hydrangeas in a PVR squeeze
- Clearly or just about distinguishable?
and more...
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made between characteristics that<br />
are important or unimportant for<br />
the exploitation of a variety. As a<br />
consequence, even a difference in<br />
one irrelevant characteristic can<br />
make a variety clearly distinguishable<br />
from another variety in the eyes<br />
of the examination officers. This<br />
narrowing of the distance between<br />
varieties is supported by UPOV,<br />
by allowing e.g. random blind tests<br />
if doubts exist over the distinctness<br />
of two varieties.<br />
This pure botanical approach runs<br />
contrary to the legal character of<br />
Intellectual Property protection<br />
and devaluates the requirement of<br />
“clearly distinguishable” to a sole<br />
measurement of a difference in the<br />
meaning of Article 1 (vi) of the<br />
UPOV 1991 Act (definition<br />
of variety). As a result, the initial<br />
improvement of the UPOV 1991<br />
Act compared to the UPOV 1961<br />
and 1978 Act, aiming at a better<br />
control of “varieties that are not<br />
clearly distinguishable from the<br />
protected variety” has been impeded<br />
by this botanical approach.<br />
If there is ‘doubt’,<br />
there is no clarity<br />
In order to revitalise the protection<br />
against cosmetic breeding, the<br />
requirement “clearly distinguishable”<br />
should be seen as an evaluative<br />
requirement in the future and<br />
should not end in a simple search<br />
of a botanical difference. Additionally,<br />
the requirement “clearly<br />
distinguishable” should be assessed<br />
on characteristics important for<br />
the crop concerned and the testguidelines<br />
should determine for<br />
each characteristic whether it is<br />
considered “important” for the determination<br />
of “clearly distinguishable”.<br />
Differences in unimportant<br />
characteristics should not lead to<br />
a “clearly distinguishable” variety.<br />
The details should be discussed and<br />
agreed upon by breeders. In order<br />
to be “clearly distinguishable”, the<br />
distance between two varieties in<br />
regard to their important characteristics<br />
should be sufficiently broad.<br />
Varieties with the same note in the<br />
UPOV test-guideline for a given<br />
characteristic should not be considered<br />
to be clearly distinguishable<br />
with respect to that characteristic.<br />
The possibility to search for a difference<br />
in a subsequent growing trial,<br />
as it is foreseen in chapter 5.2.3.2.4<br />
of UPOV TGP/9 in my opinion<br />
should be eliminated. Also, the possibility<br />
of random “blind” testing<br />
according to chapter 6.4 of UPOV<br />
TGP/9 in case of doubts over the<br />
distinctness of a candidate variety<br />
must in my view be eliminated.<br />
Common sense already says that in<br />
case of doubt over distinctness, the<br />
candidate variety cannot be considered<br />
to be clearly distinguishable<br />
from the reference variety. ‘Doubt’<br />
and ‘clearly’ just do not fit together.<br />
Essentially<br />
Derived Varieties<br />
Although already in place for 20<br />
years, the EDV concept still causes<br />
disputes and discussions about its<br />
meaning and purpose and about its<br />
scope. The main reason is the unclear<br />
language of the EDV provision<br />
and the erroneous entanglement of<br />
dependency and plagiarism.<br />
Mutants and GMO – if clearly<br />
distinguishable from the Initial<br />
Variety – need to be considered to<br />
be EDV irrespective of the number<br />
of phenotypic differences in<br />
comparison to the Initial Variety,<br />
because they are completely derived<br />
from their Initial Variety and all<br />
differences to the Initial Variety<br />
result from the act of derivation.<br />
However, there are some that want<br />
to limit the EDV concept to varieties,<br />
which can be distinguished<br />
from the Initial Variety by a very<br />
limited number of characteristics<br />
(“typically by one”). Such interpretation<br />
limits the EDV concept<br />
as far as even possible. Taking into<br />
consideration that an EDV by definition<br />
must be clearly distinguishable<br />
from the Initial Variety, which<br />
requires at least a difference in<br />
one characteristic (even under the<br />
infinitesimal minimum distances<br />
currently applied by UPOV and the<br />
examination offices of its member<br />
countries) under such interpretation<br />
only varieties which have exactly<br />
one difference compared to their<br />
Initial Variety could be considered<br />
to be an EDV – a contradictory and<br />
useless approach.<br />
In fact, the entanglement of dependency<br />
and plagiarism was and<br />
is a mistake in the conception – or<br />
interpretation – of the EDV provision.<br />
Plagiarism is not a question<br />
Illustration by Néstor Morales Flores<br />
<strong>CIOPORA</strong> <strong>Chronicle</strong> April <strong>2013</strong> | www.FloraCultureInternational.com 27