4.7.1 Prima Facie Case for Breeding of the New Variety

Also in this Chapter:

• 4.7.2 Prima Face Case for Distinctiveness of the New Variety

• 4.7.3 Breeding Process of the New Variety

Key Legislation

Plant Breeder's Rights Act 1994:

• s26 Form of application for PBR

   

International Union for the Protection of New Varieties of Plants (UPOV):

• TG/1/3 s4.2.1 General introduction to the examination of distinctness, uniformity and stability and the development of harmonized descriptions of new varieties of plants

On this Page

• Overview

• Examination of the prima facie case for breeding

Overview

To establish a prima facie case for breeding, Question 18(i) of the PBR Part 1 Application Form requires the applicant to list the characteristics or combination of characteristics which make the candidate variety clearly distinguishable from its parents or source materials. Such characteristics must be capable of precise definition to establish a prima facie case for breeding. A photograph of the candidate variety showing its distinguishing features is also required for Question 18 of the PBR Part 1 Application Form.

Examination of the prima facie case for breeding

The examiner must match the name of the parents in Question 18(i) with the name of the parents provided in Question 17(iii), wherein the applicant provides information on the parental or source material. If the parental name(s) are not in agreement, then the concerned examiner must raise this issue in the first report.

When the names of the parents in Question 17(iii) and Question 18(i) are consistent, the examiner will assess the prima facie case for breeding. 

In a plant breeding program the resulting candidate variety must differ from its maternal or seed parent (female parent) or source parent in one or more characteristics. Breeding methods may vary widely. However, irrespective of the breeding methods, the resulting variety cannot be identical to its female parent or source parent if there has been some breeding activity. 

The rationale is that the candidate variety must be different from its parents. If this is the case, then the prima facie case for breeding is established. 

In controlled pollinations, both seed and pollen parents should be named and the characteristics in which the candidate variety differs from the seed parent must be listed. It is desirable that the differences from the pollen parent should also be listed. However, when the pollen parent is not a variety of common knowledge, i.e. a breeding line within the breeding program, then it is not necessary to list the differences from the pollen parent. 

In open pollinations, where only the seed parent is known and the exact pollen parent is not determined, the characteristics in which the candidate variety differs from the seed parent must be listed. To show differences from the pollen parent is not necessary.

Similarly, for spontaneous or induced mutations where only one single parent is involved, the difference between that original parent and the candidate variety must be listed. The same process is expected for genetic manipulation and selection from a source germplasm, where only one parent is involved in the breeding program.

The characteristics in which the difference(s) are claimed must be capable of precise definition and fulfil the basic requirements of a characteristic (UPOV TG/1/3: Section 4.2.1):

(a) results from a given genotype or combination of genotypes;

(b) is sufficiently consistent and repeatable in a particular environment;

(c) exhibits sufficient variation between varieties to be able to establish distinctness;

(d) is capable of precise definition and recognition;

(e) allows uniformity requirements to be fulfilled;

(f) allows stability requirements to be fulfilled.

If the listed characteristics are not precise and do not fulfil the above requirements (such as taste, yield, or any vague characteristics) then the concerned examiner must raise this issue in the first report and request precise characteristics to establish the prima facie case for breeding.

In some breeding programs, the breeders collect a mixture of open-pollinated seeds from a number of parental varieties and then follow the selection process. In those cases, breeders may be unsure about the name of the exact seed parent and may list “unknown” as the name of the seed parent. The examiner must request that the breeder disclose the names of all putative parents used in the breeding program and then systematically list them as plausible parents to differentiate them from the candidate variety.

The examiners should examine the claimed differences of the candidate variety from its respective parent(s) and be satisfied that they are clearly distinguishable by one or more characteristics. If the differences are not clear enough to distinguish the candidate variety then the concerned examiner should raise the issue in the first report that the prima facie case for breeding has not been established.