56 I EUROPEAN SEED I EUROPEAN-SEED.COM GIANT VIEWS BY: JEAN DONNENWIRTH A s agriculture is going to face during the 21st century a series of unprec- edented challenges to provide high quality and diverse food in sufficient quantities to the growing world popula- tion, while simultaneously combatting the negative effects of global warming and the emergence of new diseases and pests and needing to reduce its environmental foot print and water dependency, the success of plant breeding innovations is more crit- ical than it has ever been. Investment in plant breeding will greatly depend on the incentives provided by society to invest in research and development to create new improved varieties. Intellectual property rights are the most effective catalyst to generate inno- vation in all fields of technology. Hence it is critical to ensure that the current UPOV system evolves and is commensu- rate to stimulate the necessary invest- ments in plant breeding that will allow agriculture to cope with the huge chal- lenges ahead of us for the 21st century. At the end of the 50s breeders requested the creation of a sui generis system of protection for their new vari- eties after they realized that neither the trademark nor the patent systems could protect their new varieties which were key to ensure the development of agriculture. The UPOV Convention, first estab- lished in 1961, defined a set of well adapted criteria for obtaining a plant vari- Jean Donnenwirth IS THE UPOV SYSTEM READY FOR THE 21ST CENTURY? ety protection (PVP) right namely, nov- elty, distinction, uniformity and stability while conferring exclusive rights compris- ing production and sales. At that time the scope of the plant breeders right granted was regarded as sufficient to allow a breeder the time necessary to recoup his research investments, while the breed- er’s exemption allowed other breeders to benefit from the previous improvements to create new and better varieties. During nearly three decades, the UPOV system was progressively enacted by the OECD member States and the debate about the UPOV system was mainly focused on the question of the distinction criteria. What is the minimum distance required to declare that a candidate vari- ety is distinct from an existing one? This question remains an open one. At the end of the 80s, transgenesis appeared and breeders were concerned that because of the breeder’s exemption and due to the lack of clarity regarding the minimum distances under UPOV 1961, those having access to this new technology could freely and easily take full advantage of decades of incremental variety improvement by inserting one or more transgenes into PVP protected elite varieties and thereby claim sole owner- ship of the resulting varieties together with freedom to operate. This was the main reason why UPOV was revised in 1991 and the concept of essentially derived variety (EDV) intro- duced thereby establishing the principle that the commercial exploitation of an EDV depends on the authorization of the breeder of the protected initial variety from which it essentially derives. While the EDV concept seemed to be well adapted to the new situation, its effectiveness has shown its limits when it comes to enforcing the PVP rights against an alleged EDV. The difficulty of meeting the burden of proof regarding an act of essential der- ivation, which lies with the PVP owner, has already been rendered more difficult in the last decade with the progress of marker assisted selection and will be gain- ing even greater significance going forward with the development of new plant breed- ing innovations. The main issue presently fueling debates at UPOV and within the seed industry is the lack of clarity about the key definition for what constitutes the essential characteristics resulting from the genotype that an EDV must retain after the act of derivation. Meanwhile other international con- ventions have been introduced which aim at regulating access to in situ and ex situ plant genetic resources. The Convention on Biological Diversity and the FAO International Treaty on Plant Genetic Resources for Food and Agriculture have drastically changed the freedom that breed- ers had to access and use such plant genetic resources. Those resources are no longer accessible and usable freely but require the prior informed consent from Member States which have sovereignty over them and the perpetual sharing of the benefits resulting from any use. Last but not least, over the last 20 years, the commercial life cycle of varieties for many crops has been drastically reduced allowing less time for breeders to recoup their investments. With the plant breeding innovation technologies that have surfaced during the last 5 years, such as gene editing, the breeding cycles will accelerate even fur- ther together with the obsolescence of new varieties and it is possible that, despite the EDV concept, a situation similar to the one that led to the revision of 1991 will occur. It seems that, in light of these new technical and legal developments, the UPOV system deserves an in-depth review, including its conditions of grant, scope, exemptions, duration and enforcement mechanisms, to ensure that it will fully play its intended role for most part of the 21st century. Jean Donnenwirth is the Global PVP & EMEA Germplasm Security Lead for DowDupont