The Concept of an Essential

Derived Variety (EDV) was introduced by the UPOV in 1991 and was aimed at broadening the scope of protection for breeders on parent varieties by way of creating dependency between parent and their EDV. The traditional plant breeding is cumbersome and time consuming but with the advances in biotechnology, it is possible to breed a new variety based on another variety relatively quick, for example by introducing minor mutations and retaining most of the genotype of the mother variety. Therefore, the EDV was aimed strengthening a breeder’s right on a variety by extending his right to a variety which is essentially derived from his variety and may otherwise qualify for a Plant Breeders’ right. The concept of EDV means that the breeder’s right to an EDV, which resembles the parent variety may be dependent on the rights over the parent variety.

As a matter of law under the EDV concept, an EDV cannot be exploited without falling within the scope of protection of another variety (referred hereinafter as “the parent variety”). South African Plant Breeders’ Right (PBR) Act, in line with the UPOV convention Act, defines an EDV in Section 23(4)(b) of the Act as follows:

Section 23(4) (d) …. a variety shall be deemed to be essentially derived from another variety if:

• it is predominantly derived from that other variety, or from a variety that is itself predominantly derived from that other variety, while retaining the essential characteristics of that other variety; and
• it is clearly distinguishable from that other variety; and
• except for the differences which result from the process of derivation, it conforms to that other variety in respect of the essential characteristics.

From this definition, it is clear that an EDV must be “clearly distinguishable from the parent variety” (s23(4)(d)(ii)), therefore an EDV may qualify for a PBR. For a variety to qualify for a PBR. For a variety to be granted a PBR, it needs to be Novel, Distinct, Uniform and Stable. It is important to note that the Registrar of PBR is not mandated to test whether a variety is an EDV or not, but whether the variety to which an application for a PBR relates to meets the requirements as set out by the PBR Act. Those being, amongst others, that the variety is novel, distinct, uniform and stable; and that the variety has an approved denomination and all the required fees have been paid. The implication of this is that a proprietor of an EDV may obtain a PBR but under the EDV concept, the use/exploitation of the EDV will constitute infringement of the parent variety, if the parent variety is protected. Therefore, the proprietor of the EDV must obtain consent from the proprietor of the parent variety in order to exploit his/her EDV.

A variety referred to in subsection (1) shall be deemed to be:

• new if propagating material or harvested material thereof has not been sold or otherwise disposed of by, or with the consent of, the breeder for purposes of exploitation of the variety—
• in the Republic, not more than one year; and
• in a convention country or an agreement country, in the case of—
• varieties of vines and trees, not more than six years; or
• other varieties, not more than four years, prior to the date of filing of the application for a plant breeder’s right;
• distinct if, at the date of filing of the application for a plant breeder’s right, it is clearly distinguishable from any other variety of the same kind of plant of which the existence on that date is a matter of common knowledge;
• uniform if, subject to the variation that may be expected from the particular features of the propagation thereof, it is sufficiently uniform with regard to the characteristics of the variety in question;
• stable if the characteristics thereof remain unchanged after repeated propagation or, in the case of a particular cycle of propagation, at the end of each such cycle.