Challenges surrounding confirmation of EDVs

The UPOV Convention (International Union for the Protection of New Varieties of Plants) was changed in 1991 to extend the protection of Plant Breeders' Rights to 'essentially derived varieties', or EDVs. The aim was to ensure that the breeder receives proper compensation for the commercialisation of mutations (sports) of the protected initial variety. However, there is much confusion about how to identify an EDV. How much genetic similarity should exist between the derived and initial variety, considering the varying degree of relatedness between different crops?

'As Dümmen Orange we are fully committed to the EDV regulation. However, it would be useful if a method could be developed to prove unquestionably whether a variety is an EDV or not,' declares Biense Visser, CEO of Dümmen Orange. Dümmen Orange wants to work with other leading players in the ornamental horticulture sector to find a scientifically supported method for determining EDVs.

EDV and genetic relatedness

DNA analysis is an important tool for proving genetic relatedness. The International Community of Breeders of Asexually Reproduced Ornamental and Fruit Varieties (CIOPORA) states that the methods and required level of genetic conformity should be established for on a crop-by-crop basis using modern protocols.

'The Dutch association of plant breeders (Plantum) is basically in favour of crop-specific protocols, but thinks it is only realistic for the bigger ornamental species where the companies are willing to finance such work to obtain greater clarity. Plantum believes an EDV exists when the presumed derived variety looks more like the original variety than would normally be expected, based on variation within that species. Genetic similarity is important, but it is also about the phenotype, i.e. observable characteristics,' explains Judith de Roos, legal expert at Plantum.

UPOV intends to change the rules

The UPOV recently drafted new Explanatory Notes (EXN) on EDVs in an attempt to provide more clarity about the concept, which led to a discussion about the definition of 'essential characteristics'. Hans van den Heuvel, R&D Managing Director at Dümmen Orange: 'The criteria that an EDV is mainly derived from and conforms to the initial variety while retaining the expression of the essential characteristics, seem to have been abandoned and replaced by the presence or absence of at least one different essential characteristic. The presence of single different essential characteristic would then be sufficient for the plant not to be declared an EDV. However, it is still unclear what defines an essential characteristic in our industry, which is problematic for all concerned. Dümmen Orange believes that varieties which occur through spontaneous mutations without technical or human intervention should be treated according to current EDV guidelines, which does not seem to be in line with UPOV’s latest position. However, UPOV’s proposed changes would be easier to understand for varieties that came about through technical intervention.

Opinion Plantum & CIOPORA

CIOPORA does not support the new UPOV Explanatory Notes (EXN) on EDV. 'We are trying to convince UPOV to reconsider the EXN and not to restrict the EDV concept. We preserve that mutants (sports) and GMOs (genetically modified organisms) – as far as they are distinct from the initial variety – are EDVs, provided that they are genetically very similar to the initial variety, because mutants and GMOs by definition are largely derived from the initial variety. Many mutants exist in the ornamental and fruit world, so it important to have an effective EDV system with a broad scope.' Edgar Krieger, Secretary General of CIOPORA, explains.

The UPOV’s explanatory notes have not succeeded in clarifying EDVs, states De Roos of Plantum. 'Like CIOPORA, we don’t support the proposed changes. The EXN is written in such a vague manner that it can be interpreted in both ways. The matter will be further discussed at the upcoming UPOV meeting in October. According to Plantum (as well as ISF and ESA), the concept of EDV is based on the principle that it is fair to compensate the breeder of the initial variety for commercial exploitation of a derived variety that largely holds its essential characteristics. Up to now we haven’t looked at the process – technical intervention of spontaneous mutation – in itself but at the end result (differences). But we will need to see how the UPOV member countries proceed with this discussion', concluded De Roos.