UPOV discussions of the definition of essentially derived varieties (EDV)

Issue summary

Protection of essentially derived varieties (EDVs) in the Plant Breeder’s Rights Act (PBR Act) aims to balance the interests of the breeder of an initial variety with the interests of the breeder of a new variety that is predominantly derived from the initial variety. EDV protection recognises the contributions each breeder has made to developing the essential characteristics of the new variety.

The Australian approach assesses whether a new variety differs from the initial variety only in unimportant ways but still retains the commercially useful characteristics of that initial variety. If so, the breeder of the initial variety can still get some reward for their effort in developing those useful features.

In recent years concerns have been raised in Australia, in other countries, and at the international level about the effectiveness of existing EDV schemes. As a result, the International Union for the Protection of New Varieties of Plants (UPOV), which Australia is a member of, agreed to review their explanatory notes on the EDVs. The work reviewing the guidance material is ongoing.  

History

• Identified for action 24 June 2021 to 1 July 2021
• Consultation 1 July 2021 to 6 August 2021
• Policy Development 7 August 2021

Comments

From 1 July to 6 August 2021, IP Australia sought stakeholder’s views in a target consultation on if Australia should adopt the approach in the proposed explanatory notes, should they be adopted by UPOV. Non-confidential submissions are published on our consultation hub.

Most submissions were in favour of Australia aligning our approach to EDVs with the approach in the proposed explanatory notes and indicated that doing so will incentivise ongoing investment in the plant breeding industry in Australia. Many stakeholders raised concerns that new breeding technologies may be allowing a degree of free riding on the efforts of breeders of initial varieties.

Concerns were raised by some stakeholders that the proposed explanatory notes would reduce the incentives for investing in new breeding technologies. This issue will be considered in any further policy development. However, in many cases, varieties produced by genetic modification or other genome editing techniques may be eligible for patent protection. This may provide sufficient incentive for ongoing innovation in the field.

In 2022, IP Australia commissioned an independent research report from the University of Queensland on essentially derived varieties and the proposed changes to the UPOV explanatory notes.  
 
IP Australia is currently considering the recommendations made by UQ. The Government has not taken any decision on possible PBR reform. 
 
You can give us feedback on the recommendations via our consultation hub.