2013 CIOPORA Chronicle

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