On the basis of the UPOV treaty and the various national and European regulations on breeders' rights, the protection for a specific plant variety also extends to varieties that are "essentially derived" from that variety.
In a recent case (Danziger "Dan" Flower Farm v Astée Flowers) the Appeal Court of The Hague has established guidelines for determining whether a variety is an essentially derived variety (EDV).
The plant varieties in question were varieties of soap root (Gypsophila). The plaintiff alleged that the variety Blancanieves of the defendant was an EDV of the plaintiff's variety Dangypmini.
The court decided that the criteria for being an EDV are mentioned in Article 6 of the EG Directive 2100/94. These are: a) it should be mainly derived from the original variety; b) it should be discernable from the original variety; and c) it should be identical (except for the above differences) to the original variety for those characteristics that stem from the genotype or the combination of genotypes from the original variety. These requirements are cumulative.
Since, in the present case, Blancanieves was a new variety in itself, it fulfilled requirement b). For requirement c) the plaintiff provided a report showing that on the basis of AFLP analysis there was an identity on DNA level of more than 94% (Jaccard Similarity Coefficient 0 .944). However, the defendant produced two reports showing that the JSC was 0.82 and 0.87. First of all, the court stated that, in contrast to what has been supposed in circles of users, no reversal of the burden of proof would be applicable where the plaintiff shows a JSC of more than 0.90. It is sufficient to allow the defendant to provide counter evidence. Further, the court indicated that there are drawbacks in using AFLP analysis for determining genetic identity, because AFLPs are not multi-allelic and it is questionable if they are representative for the total genome. In this case, the analysis presented by the plaintiff was insufficient to prove derivation.
Derivation can also be proven by phenotypical resemblance. However, in the present case the variety Blancanieves differed in 17 points from the variety Dangypmini, also in features like plant architecture and flower morphology, which are important in ornamental flowers. Accordingly, the court judged that Blancanieves was not an EDV of Dangypmini.
 |
| Bart van Wezenbeek |
Vereenigde Octrooibureaux NV
Johan de Wittlaan 7, 2517 JR The Hague
The Netherlands
Tel: +31 70 416 67 11
Fax: +31 70 416 67 99
patent@vereenigde.com
www.vereenigde.com