The Plant Variety Protection System: General Presentation and Focus on the Essentially Derived Variety Concept

Abstract

Abstract The plant variety system is a very technical field quite close from patent law, but with substantial differences. It is especially known for its exceptions, the breeder's privilege and the farmer's privilege, made with the aim to balance the interests of breeders and farmers. These exceptions were originally conceived to adapt the monopoly granted by this special intellectual property right to the specificity of the "living" on the one hand and of the agricultural sector on the other hand. The breeder's privilege allows everyone to freely use a protected variety for further breeding. The result of the breeding can be distributed without the original breeder's authorisation. The farmer's privilege allows farmers to use a part of their harvest obtained with a protected plant to sow their fields the following year without breeder's authorisation. However, the UPOV Convention evolved with successive revisions. The extent of the plant variety right was originally quite limited. The scope of the plant variety certificate became much broader, and at the same time, its exceptions were weakeded. In this regard, the concept of essentially derived variety was adopted, which framed the extent of the breeder's privilege. This blurry notion is nowadays the cause of many conflicts.