Essentially derived varieties in the age of genome editing: Striking a balance between innovation and protection

Abstract

The concept of Essentially Derived Varieties (EDV) presents a critical challenge in plant variety protection, requiring a delicate balance between the Breeder's Exception (BE) and the rights of both initial variety developers and subsequent breeders who introduce genuine innovation. A balanced approach requires a transparent, flexible and science-based framework that considers genetic, phenotypic, and economic distinctiveness while mitigating risks, both those that may slow breeding progress and those that may compromise breeder rights. It is in this context that the UPOV explanatory note on EDV (EXP 2023) constitutes a potential further risk since all mono-parental varieties are classified as essentially derived and so the adoption of genome editing, and other new breeding technologies, would be restrictive. This risk would impede agricultural innovation and sustainability. The diverse proposals examined herein highlight different aspects—some emphasize economic and phenotypic mechanisms of differentiation while others call for a more organized and enforceable framework consistent with the pace of technological development. A significant issue relates to how we accurately define the so-called essential characteristics in scientific terms while ensuring that these remain flexible enough in the face of dynamic agricultural conditions and market demands. This calls for a classification system that is specific enough to hold threshold, counter-party and new technology accountable, but is flexible on the margins to address concerns with threshold clarity, perverse incentives, and technological disruptions. The suggested enhancements are either adjustment to existing criteria (Smith, Lawson, Kock, Van Lookeren et al. and Bostyn.) to the redefinition of the basic terms of plant variety protection (Rapela). In conclusion, a practical EDV framework must have a scientific basis in the genetics and physiology of the plant varieties involved while also possessing a sound legal footing to ensure that varietal protection mechanisms are proportionate and promote innovation, sustainability, and industry development in an ever-changing genetic and phenotypic environment. Based on these premises, the paper introduces a new functional-dependence model to clarify EDV status in modern breeding scenarios.