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.
Australia is participating in a UPOV international working group on changes to Explanatory Notes on Essentially Derived Varieties under the UPOV Convention (the 'proposed explanatory notes'). The UPOV Convention is the International Convention for the Protection of New Varieties of Plants. It set up an international system for the protection of new plant varieties. The meeting documents of the working group are published on the UPOV website.
The proposed changes drafted by the UPOV Office at the request of the working group would change the guidance on the provisions of the UPOV Convention concerning EDVs.
IP Australia is currently considering how Australia’s plant breeding industries could be affected by proposed changes to guidance on the UPOV Convention.
Identified for action 24 June 2021 to 01 Jul-2021
Consultation 01-Jul-2021 to 06-Aug-2021
Policy Development 07-Aug-2021
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.
Subject to government approval, Australia’s approach to EDVs will be considered further as part of IP Australia's forward legislative agenda. The current practice will be maintained until such amendments are made.
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