Law & practice on EDVs in the Netherlands

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Information about Law & practice on EDVs in the Netherlands

Published on March 4, 2014

Author: TjeerdOverdijk



Overview of legal developments related to Essentially Derived Varieties in the Netherlands, practical examples and some connected observations


Outline  Introduction;  Three published cases;  Which level of conformity for finding EDVs?  genetically;  phenotypically?  Other views on “predominant derivation”;  Conclusions.

Open questions on assessment of EDVs  What is “derived”?  When is a variety “predominantly” derived?  When is there conformity in (the expression of) the essential characteristics?;  How do we know whether the expression of characteristics results from the genotype of the INV?

Published NL court rulings on EDVs  the Freesia case (2008);  the Blancanieves case (2002 - 2009);  The Bambino case (2007 – 2010).

The Freesia case (2008):     INV: Ricastor; EDV: Mercurius; DNA (AFLP): no genetic difference; Phenotypical comparison: identical in 38 out of 39 characteristics (slightly rougher stem); difference in flower size: not listed;  Prov. Judge: infringement & injunction upon Hofland to further market its variety.

Gypsophila II: Bambino (2007 – 2010) Dangypmini(P) Million Stars®: Bambino:

Bambino – facts & claims: Danziger (owner of Dangypmini(P)):  AFLP test – Similarity 0.91 Jaccard;  High phenotypic similarity in essential characteristics; differences caused by act of derivation (possibly radiation); Biological Industries (Bambino):  Counter-AFLP (only later): genetic difference is 13% +;  Clear morphological differences in at least 9 of the relevant characteristics mentioned in the UPOV DUS Guidelines.

P.I. Judge DC The Hague (07-09-07): - Expert opinion that treatment with radioactive radiation may lead to 3,5% genetic difference (8 out of 228 markers); - Reference to threshold Jaccard values below 0.90 for other crops (cotton - 0.82; corn – 0.875); - Claimed non-use of plaintiff‟s variety was deemed to lack credibility; - Morphological differences considered irrelevant and/or insignificant because not part of DUS Protocol.

Blancanieves: the case Blancanieves: Dangypmini (P) Million Stars®:

Blancanieves – facts & claims: Danziger:  AFLPs – Similarity 0.944 Jaccard and 0.937 Jaccard;  High phenotypic similarity in essential characteristics; differences caused by act of derivation (polyploidization); Astée Flowers:  Counter-AFLP: 0.822 Jaccard;  Substantial phenotypic differences: differences in 17 out of 21 of the characteristics mentioned in the UPOV DUS Guidelines. Final ruling: Court of Appeal The Hague 29-12-09:

Required level of genetic conformity - UPOV art. 14 (b) I (as referred to in doc IOM/6/2):  “Derived” means that genetic materials of the INV have been used in the creation of the later variety;  “The examples of essential derivation given in Article 14(5)(c) make clear that the differences which result from the act of derivation should be one or very few.” (also: ISF RED) - Determination of genetic conformity: - The use of AFLP markers is “open to objections”; - (reliable) determination of genetic conformity by means of DNA markers requires use of multi-allelic markers and reliable and representative sampling of the entire genome (230 to 260 markers considered insufficient).

Assessment of phenotypic similarity Court of Appeal‟s general remarks on phenotypic similarity: - the alleged EDV and the initial variety must also be phenotypically similar to such a high degree that the one variety differs from the other variety only in one or a few inheritable characteristics; - the determination of distinctiveness focuses on the differences in essential characteristics, whereas the determination of derivation focuses on the similarities of essential characteristics in which the genome is expressed; - DUS test showed 17 morphological differences with Dangypmini, of which 9 characteristics are related to plant architecture and flower morphology; these are specifically characteristics which are relevant for the cultural and practical value of a cut flower such as Gypsophila; - 9 differences is more than only in one or a few inheritable characteristics -> therefore no EDV;

CIOPORA on predominant derivation: CIOPORA Position:  Monoparentals – totally derived;  Varieties “(…) destined for circumventing the exclusive right (…) (plagiarism or me-too-varieties)”: if they retain all essential characteristics of INV and only show changes in insignificant characteristics these should be deemed “predominantly derived” and therefore EDVs;  General genetic threshold for reversal of burden of proof for all ornamental crops (0,90 Jaccard) – open to debate;  Note: this view brings crosses into the realm of EDV: Is at odds with “one or very few”. Is this desirable?

Conclusions: - Prevailing view of court rulings in the Netherlands: For a variety to be qualified an EDV the differences with the INV should not be more than one or very few inheritable characteristics (both in terms of genetics and phenotype); - The use of AFLP-fingerprinting is open tot criticism; - Breeders need clear guidance on: - Definition of ‘derived’: whether or not physical use of the INV is a condition? - Definition of the term „predominantly derived‟ (only “one or very few” or could it be more?); - whether or not crosses (except repeated back-crossing) are inside or outside the scope of EDV by definition; - the meaning of ‘essential’ in essential characteristics.

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