With a public UPOV Seminar coming up in Oct 2019 about essentially derived varieties (EDV’s), it becomes apparent that the views among UPOV members are not always fully aligned. To bring the various viewpoints and interpretations to light, European Seed went to speak with several UPOV member states and UPOV observer organisations. I sat down with Nik Hulse, Chief of Plant Breeders Rights at IP Australia.
Nik Hulse (NH): First off, I’d like to say that response to the questions below are my views on interpreting and deciding on EDV. They are based on the current limited experience in dealing with claims of EDV in Australia and the perception of possible or theoretical circumstances. They do not necessarily represent how a future claim of EDV in Australia will be decided as, ultimately, the policy interpretation of the PBR Act itself and specific circumstances of the case will determine the outcome.
European Seed (ES): What is your view on what are essential characteristics?
NH: The definition of “essential characteristics” is in the Australian PBR Act.
“essential characteristics, in relation to a plant variety, means heritable traits that are determined by the expression of one or more genes, or other heritable determinants, that contribute to the principal features, performance or value of the variety.”
Whilst this definition leaves room for some interpretation it does at least give some guidance as to which characteristics may be considered as “essential”.
ES: Should UPOV make a distinction between more important and less important characteristics? And why?
NH: No. The importance of a characteristic is not relevant to determining whether a variety is clearly distinguishable from another variety. The level of importance of a characteristic can be subjective. A characteristic that is not considered important today may be important tomorrow due to new breeding/use/marketing. Also, what may be considered important in one country may not be in another (eg resistance to a particular disease that is prevalent in one country but not another).
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ES: If an essential characteristic was changed due to an act of derivation, can a variety still be an EDV?
NH: No. Under the Australian PBR Act, a variety cannot be an EDV if it does not “retain the essential characteristics” of the variety from which it was derived.
ES: Is a mutant or GMO-variety in all cases an EDV? And why?
NH: No. To be an essentially derived variety, the second variety must fulfil three requirements: (i) be predominately derived from the initial variety, and (ii) retain its essential characteristics, and (iii) not exhibit any important features that differentiate it from the initial variety. Whilst a mutant or GMO would always satisfy requirement (i) it may not satisfy requirements (ii) or (iii).
ES: Where do you feel should a decision lie on whether a variety is an EDV or not? With the national (PBR) authorities, or with a judge or arbitrator? And why?
NH: A decision on EDV can be made by the national authority, a judge or an arbitrator. It should be up to the authority to decide the approach that is most appropriate for their jurisdiction. In Australia, decisions on EDV are made by the authority. However, a decision to declare or not declare EDV can be appealed to the Administrative Appeals Tribunal.
ES: What will be the impact of plant breeding innovation techniques on EDV?
NH: In my opinion the possible impact of new breeding techniques on EDV, such as gene editing, remains to be seen. It may not change the current situation significantly if the time to bring a new variety to market is about the same as currently for a GM variety. If gene editing brings new varieties to market much quicker than existing conventionally bred or GM varieties then it may disincentivise breeders from obtaining PBR as the opportunity (time) to obtain a return on their investment is less. The impact is likely to vary depending on crop type.
ES: Is there a need to revise the current UPOV Explanatory Note on EDV?
NH: No.
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ES: Is there a need to revise the EDV provisions in the UPOV Convention?
NH: Not currently. However, if it were to be considered then adding some further clarity around what is meant by “essential characteristics” might be useful.
