4.7.2 Prima Facie Case for Distinctness of the New Variety

Also in this Chapter:

• 4.7.1 Prima Face Case for Breeding of the New Variety

• 4.7.3 Breeding Process of the New Variety

Key Legislation

Plant Breeder's Rights Act 1994:

• s30 Acceptance or rejection of applications

   

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 distinctiveness

Overview

To establish a prima facie case for distinctness, Question 18(ii) 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 the “most similar varieties of common knowledge” (the comparators). 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 distinctiveness

The examiner must ensure that the varieties nominated by the applicant as the “most similar varieties of common knowledge” are within the same taxon as the candidate variety. This can be done by searching the name of the comparator varieties in the PBR database. If they are not available in the PBR database then the examiner should consult the UPOV PLUTO Plant Variety Database.

In most cases, the relevant information is readily available by a Google search of the comparator variety names. Examiners are required to search for readily available information on the nominated comparator varieties from the internet and where possible download image(s) and descriptions for further reference. The main purpose of this search is to ensure that the nominated comparators are indeed “similar” to the candidate variety to warrant them as comparable varieties.

It should be noted that the purpose of Question 18(ii) is to establish only a prima facie case for distinctness. The applicant's response to Question 18(ii) is not equivalent to or a replacement for a DUS test growing per se. The choice of comparators will be further tested by the use of grouping characteristics in the detailed description.

However, when conducting examination with respect to the completed Part 1 Application Form, examiners must ensure that the nominated comparators are within the same taxon and close enough to the candidate variety. Examiners must also be satisfied that the nominated differences are sufficient to establish an apparent nature of their distinctness. If the examiner is aware of any other similar varieties from their previous experience, then the concerned examiner should raise this issue in the first report.

Where the candidate is the “first variety” of a species and there are no other known varieties of the same species to compare to the candidate variety, then the source population from which the candidate variety has been developed (i.e. the source or parental material) must be included as the comparator.

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 distinctness.

The following points may be considered for further guidance to examiners:

• Where varieties are selected for a characteristic such as flower colour, foliage colour, growth habit or plant size, the variety or varieties of common knowledge (VCK) should resemble the candidate variety in most, if not all, of the characteristics for which they have been selected by the breeder. For example, if a variety is selected by the breeder as a candidate variety because it produces pink flowers, then the selected VCK(s) should also have pink flowers, not white, yellow, red, etc.

• Where varieties are being selected for a combination of characteristics (for example growth habit and maturity), VCKs should resemble the candidate variety in most, if not all, of the characteristics for which they have been selected by the breeder. In such circumstances, it may be necessary for several VCKs to be included; one which is most similar to the candidate variety with regards to maturity; one which is most similar to the candidate variety with regards to growth habit, etc.

• Where the candidate variety is the progeny of crosses made by a breeder to develop a product line (e.g. plants developed to have the same plant form and growth habit but with variations in flower colour), those varieties from the product line which are most similar to the candidate variety should also be considered as possible VCKs. Even so, similar varieties outside the product line as well as those from other breeding programs should be considered for inclusion.