- Home
- 1. Recent Changes
- 2. About this Manual, Quality, and Customer Engagement
- 2.1. Using This Manual
- 2.2 Customer Engagement, Quality Management and Timeliness
- 2.3 Procedures for Updating This Manual
- 3. PBR Process Maps
- 4. Part 1 - Application for PBR and Acceptance
- 4.1 Scope and Nature of Plant Breeder's Rights
- 4.2 Roles in a PBR Application
- 4.3 Form an application must take
- 4.4 Variety Denomination
- 4.5 Prior Sales
- 4.6 Priority
- 4.7 Acceptance or Rejection of PBR Application
- 4.7.1 Prima Facie Case for Breeding of the New Variety
- 4.7.2 Prima Facie Case for Distinctness of the New Variety
- 4.7.3 Breeding Process of the New Variety
- 4.8 Provisional Protection
- 5. Part 2 - Dealing With the Application After its Acceptance
- 5.1 DUS Test Growing in Australia
- 5.1.1 Centralised Testing Centres (CTC)
- 5.1.2 Pre-Examination Trial Agreement (PETA)
- 5.1.3 What to Expect During Field Examination
- 5.2 Overseas DUS Test Reports
- 5.3 Detailed Variety Description
- 5.3.1 IVDS Submissions
- 5.3.2 Further Period to Submit Detailed Description
- 5.3.3 Part 2 Forms and ACRA, GRC Submission
- 5.3.4 Ceasing of Provisional Protection
- 5.4 Public Comments
- 5.5 Withdrawals
- 5.6 Grant or Refusal
- 5.7 Revocation of PBR
- 5.8 Offer to Surrender
- 5.9 Expiry of Plant Breeder's Rights
- 6. Register of Plant Varieties
- 7. Essentially Derived Varieties (EDVs)
- 8. Qualified Persons (QPs)
- 9. Variations and Prescribed Fees
- 10. PBR System User Guides
7. Essentially Derived Varieties (EDVs)
Overview
A person can lodge an application for the declaration of an EDV using the Declaration of Essential Derivation form.
Extending the scope of plant breeder's rights to include essentially derived (ED) varieties is intended to limit plagiarism and possibly increase the duration of varieties in the market place. However, ED will also promote innovation and broaden the genetic base of crops by requiring that a new cultivar be clearly distinguishable, and where sole commercial rights are sought, not ‘essentially derived' from other varieties. Consequently, successive steps in genetic improvement will tend to be larger than under previous legislation.
Definition of ED
A new plant variety (the so called ‘second variety’) is taken to be an essentially derived variety of another plant variety (the so called ‘initial variety’) if:
it is predominantly derived from the initial variety; and
it retains the essential characteristics that result from the genotype or combination of genotypes of the initial variety; and
it does not exhibit any important (as distinct from cosmetic) features that differentiate it from the initial variety.
This definition, while in general accordance with the 1991 UPOV Convention, places greater emphasis on the important characteristics of each variety and less on the overall genetic similarity between the varieties.
Interpretation of ED
Estimating the genetic similarity of varieties ultimately relies on DNA profiling and will include both expressed and non-expressed portions of the genome. Consistently judging when similar varieties are sufficiently different in their genetic makeup to no longer warrant ED, even though they may have almost the same physical appearance (phenotype), may be impossible.
Consequently, it is the third part of the definition, the ‘important features’ that holds the best opportunity for interpreting ED.
Important features are features that change the performance or value of a cultivar. Performance or value will vary depending upon the use(s) to which the varieties are put.
Thus, if the second variety differs in performance or value from the initial variety, then it is unlikely to be declared as ED. Alternatively, a second variety, which may have considerable differences in the unexpressed portion of the genome, could be declared ED if its performance or value was no different from the initial variety.
In accordance with reciprocity under the 1991 UPOV Convention, declarations of ED made in other member states will be recognised in Australia.
Claims for ED do not influence the decision to grant rights in the second variety. ED can only be declared once the application for the second variety has been successfully been completed.
Operation of claims for ED
The PBR Act has provisions for the orderly administration of disputes arising from claims of ED that may follow the granting of rights to a new variety.
The grantee of rights to the initial variety must provide the Registrar with a prima facie case that the second variety satisfies the definition of ED and request the Registrar to declare the second variety essentially derived from the initial variety.
The onus is placed on the breeder of the second variety to rebut the claim. The reversal of the onus of proof is based on the fact that only the breeder of the second variety would be expected to have the knowledge of the breeding history of the second variety to rebut the claim. If the claim cannot be successfully rebutted, the Registrar will declare the second variety essentially derived. If the case is rebutted the Registrar will declare the second variety not essentially derived.
Application may be made by either party to the Administrative Review Tribunal to review the Registrar's decision.
Rights to the ED variety fall within the scope of rights to the initial variety. Thus, two persons may have rights to the second variety; and neither can exploit the rights without infringement. The rightsholders are thus forced to agree to conditions of commercialisation, such as royalty sharing arrangements.
Amended Reasons
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