2023 years 10 month, International Union for the Protection of New Varieties of Plants (UPOV) A long-awaited update has been released "Substantial derivative (EDV) Explanatory statement" (For short "Explanatory statement" ) . "International Convention for the Protection of New Varieties of Plants" (For short "UPOV pact" ) of 1961 First enacted in 2000, The Convention Outlines a unique form of intellectual property protection for a popular plant variety. Since the 1991 Since these years, "UPOV pact" right EDV Make provision. however, In practice, It is often difficult to determine what constitutes EDV, Stakeholders have long demanded it UPOV Clarify this, Especially considering modern breeding techniques that may include things like gene editing. This new guide represents UPOV Responses to these questions.

"Substantial derivation" The legal concept of variety effectively expands the rights of new varieties of plants (PVR, Usually with plant breeder rights or PBR synonymity) The scope of, This range is based on 1991 years "UPOV pact" Established by the plant variety Rights Program. therefore, In order to understand EDV The concept of, What is the first thing to know PVR.

PVR A certificate is a form of intellectual property protection independent of a patent, Designed for new plant varieties. PVR Prevents unauthorized commercial activity or the use of protected varieties, Up to 2022 years, Worldwide total more than 15 Ten thousand valid certificates. "UPOV pact" The most common legal frameworks for the protection of new varieties of plants are summarized. each UPOV Member jurisdictions will ultimately provide and implement their signature "UPOV pact" consistent PVR Laws and regulations, but UPOV the "Explanatory statement" (For understanding and implementation "UPOV pact" The various terms or provisions provide non-binding guidance) May affect how members implement and interpret it PVR law.

At present have 1978 Nian Wa 1991 years "UPOV pact" Two versions, They are in PVR There are some differences in requirements and scope of protection. One of the main differences is this, 1991 years "UPOV pact" Introduce into EDV The concept of, It also provides for a certificate of protected varieties that allows owners to protect varieties substantially derived from protected varieties (namely "EDV" ) .

EDV The core definition comes from "UPOV pact" 1991 Annual text regulation 14 article 5 paragraph b item:

In the following cases, One variety should be regarded as primarily derived from another variety ( "Original variety" ) :

(1) It is mainly derived from the original variety, Or from a variety that itself is primarily derived from the original variety, At the same time, the expression of essential characteristics produced by the genotype or combination of genotypes of the original breed is preserved;

(2) It differs markedly from the original variety; and

(3) Except for differences due to derivative behavior, In the expression of essential characteristics resulting from the genotype or combination of genotypes of the original breed, It is consistent with the original variety.

For example, "United States Plant Variety Protection Act" (Administered by the United States Department of Agriculture, with 1991 years "UPOV pact" In agreement) Provided how to make EDV A non-exhaustive list, Which specifies: (1) Select natural mutants or induced mutants or somatic variants; (2) Select variants from the original species of plants; (3) Backcross transfer; (4) By genetic transformation; (5) Other methods.

2023 years 10 month 27 Third portion of the day EDV Explanatory statement, Also the latest instructions released. The note has been prepared to address the following facts: 2017 years 4 The last one published in October EDV Explanatory notes no longer reflect the understanding of plant breeders EDV Aspects of common practice, Nor is it enough to tackle new breeding techniques (For example, gene editing) Development problem of. The updated guidelines are EDV Two key terms used in the definition provide additional guidance: "Primary derivation" and "Substantive characteristics" . Each of these terms is described below.

Primary derivation

"Explanatory statement" explain, "main" Derivation means that more of the genome of the original variety is retained than would be retained through normal hybridization and selection with different parents. This definition emphasizes, Only when a variety retains almost the entire genome of its original variety, It should be considered primarily derived from its original variety. Breeds with a single parent ( "Single parent" breed) Itself is thought to derive primarily from its original variety. Single parent this variety includes variation, Gene editing etc produces varieties. "Explanatory statement" Also point out, There is no upper limit to the number of characteristic differences between the original breed and a breed primarily derived from the original breed. therefore, Primary derivation is defined primarily by the genetic similarity between the derived breed and the original breed, rather than by changes in characteristics.

Substantive characteristics

With regard to "Substantive characteristics" , "Explanatory statement" stress, These characteristics are those that contribute to the breed "Main feature, Performance or value" The feature of. Examples of substantive characteristics include breed morphology, physiology, agriculture, industry, Biochemical and commercial properties. In addition, "Explanatory statement" Also point out, Even though "Primary derivation" The variety does not fully possess the basic characteristics of the original variety, As long as it is due to derivative behavior resulting in the absence of substantial characteristics, It can still be used as the original breed EDV. "Explanatory statement" It also allows substantial characteristics to change over time.

Closing remarks

The third explanatory note seems to have been upgraded EDV The importance of genetic similarity to the original breed, And opened EDV And the original breed may not always be between 100%The possibility of sharing substantive characteristics. therefore, The new guidelines may be creative "Substantive characteristics" Arguments provide greater freedom, But on the other hand, This may also be narrowed "Primary derivation" Range of arguments. On a practical level, These guidelines are likely to affect both traditional breeders of multi-parent varieties and gene editors who make targeted genetic changes to the original protected varieties to produce new varieties. The note appears to add to the consideration of such edited varieties as their original varieties EDV Way to, This means, Although developers who produce such edited plants can still edit for them (Immediate derivation) Breeds seek their own PVR Protection (It is assumed that the variety meets all the requirements for conservation, Such as uniqueness, Uniformity and stability) , However, according to the updated guidelines on the interpretation of technical changes in derivative varieties, Developers of derivative varieties may still be faced with the original variety PVR Issues relating to the freedom of business of the holder. In spite of this, To sum up, this "Explanatory statement" It is a non-binding guide. Use EDV Provisions for each jurisdiction (Examples include the United States and many other jurisdictions) How they will react, And how might these issues be resolved in infringement disputes, All remains to be seen.

On the whole, These updates should enable EDV The concept is more directly applied to varieties produced by new breeding techniques. (Be compiled from www. lexology. com)

TRANSLATORS: Wang Dan　proofread: Liu Peng



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