Ruling raises serious questions over the question of uniqueness in horticultural breeding, and could bring cases like the high-profile Nadorcott-Tango dispute to a close
Many of the world’s leading fruit and vegetable breeders have welcomed a landmark decision that gives variety owners extended legal protection for what are known as essentially derived varieties (EDVs).
The decision, issued by the International Union for the Protection of New Varieties of Plants (UPOV), means that the intellectual property rights for so-called single-parent varieties – which can be created as a result of mutations, genetic modification, or genome editing – remain with the owner of the original variety from which they are “predominantly” derived.
The decision was confirmed and put into writing at a UPOV Council meeting in late October. It has taken four years of debate for the group to reach a conclusion.
The question of who EDVs belong to has been at the centre of a number of legal disputes in the fruit business.
One such case involves the production rights for Nadorcott – a mandarin developed in Morocco – and Tango, another mandarin variety discovered by the University of California Riverside and registered in the EU as Tang Gold.
This high-profile dispute centres on whether Tango is essentially derived from Nadorcott or sufficiently different to make its IP eligible for protection under a separate licence.
Whatever the UPOV ruling means for Nadorcott and Tango, it will come as a relief to many fruit breeders around the world. Many of them feared that large swathes of their IP would be rendered useless if a potentially infinite number of derived varieties were effectively treated as unique in terms of their legal status.
During the revision process, they were represented by several key groups, including the International Seed Federation, the International Community of Breeders of Horticultural Varieties (known as Ciopora), Croplife International, Euroseeds, Seed Association of the Americas, the Asia and Pacific Seed Association,. and the African Seed Trade Association.
Crucially, UPOV’s guidance states that there is “no upper limit on the number of differences which may result from the act of derivation”. As such, breeders could potentially retain the rights to a derived variety even if it has significantly different characteristics.
“An important clarification in the adopted document is that the differences which result from the act of derivation may also include essential characteristics,” a spokesperson for Ciopora explained. “This means that in case a predominantly derived variety differs in one or more essential characteristics, it does not fall outside the EDV scope of the initial variety that was used in the creation of the derived variety.”
The breeders have called upon all countries that are members of UPOV to incorporate the updated guidance into national legislation governing plant breeders’ rights.
