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Aspects on Essentially Derived Varieties in the EU
The European Union plant variety protection system (EU PVP) is based on the UPOV 1991 Convention. The concept of essentially derived varieties (EDV) is found in Art 13 of Council Regulation 2100/94 (the EU PVP Regulation). The text of Article 13 is similar but not identical to Art 14 of the UPOV 1991 Act.
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The CPVO is the EU Agency tasked by the legislator to implement the EU PVP system. The agency processes applications and takes decisions to grant titles valid throughout the 28 EU Member States. However, the CPVO is not mandated to take decisions on whether a variety is an EDV or not. One reason for this is that it is not considered appropriate that an administrative body who grants titles also settles disputes between parties on the scope of a right. Another reason is that PVPs are considered as part of the civil law system, although certain infringements are subject to criminal law, and it is in the first hand up to a holder to defend his intellectual property should it not be respected. This means that if parties cannot agree on whether a variety is an EDV or not, the holder of the initial variety may ask a court to rule on the matter.
In the EU, the holder of the initial variety (IV) and the breeder of the EDV tend in practice to find a business solution on the marketing of the EDV. However, this is not always the case. One reason for this is that the rules on how to define an EDV leaves room for interpretation. In the EU there are very few court cases on EDVs which means that jurisprudence addressing this question has not developed. In the absence of other more binding legal authorities, it is quite probable that the UPOV Explanatory Note (EXN) on EDV will be studied and referred to by judges although the Explanatory Notes are not binding law. For these reasons it is important for the industry and society as a whole that the information in the UPOV Explanatory Note on EDVs give as clear guidelines as possible. The fact that the EU system relies in the first instance on the business to settle their disputes and as the last resort on courts, it may be important to discuss at UPOV level that this model is reflected as an example in the UPOV EXN on EDVs, which is presently not the case.