I would like to report on the discussions about EDV in the last UPOV meeting.
I have participated for 18 years in UPOV meetings now, but never saw such a controversy and disappointment, both on the side of the breeders and most UPOV members. Reason was that the Explanatory Notes (EXN) on Essentially Derived Varieties (EDV) Draft 3 was not adopted in the UPOV Consultative Committee (CC) and the Council.
The revision of the current Explanatory Notes on EDV, that started at the UPOV Administrative and Legal Committee (CAJ) meeting in 2019 with the strong support of the breeders and UPOV members such as the USA and Canada, abruptly stopped at the last UPOV CC and Council meeting, with uncompromising opposition of the USA, which was supported by Turkey and Belarus. Switzerland expressed moderate opposition, too, and some other countries had questions.
Instead of the adoption of the new Draft 3 of the EXN on EDV, a new Working Group has been established. While the previous Working Group was composed of UPOV members and observers as agreed by the CAJ, the new Working Group is composed only of members of the Union. Breeders might be invited occasionally.
The request of the breeders to repeal in the meantime the current EXN of 2017 was blocked by the USA, mainly, too.
Instead, a “Seminar on the interaction between plant variety protection and the use of plant breeding technologies” will be held on 22. March 2023, as a hybrid. Experts shall be invited to explain the impact of New Breeding Techniques on conventional breeding.
The matter then will be discussed at the next UPOV CC and Council meetings in October 2023, where it is intended to either replace or repeal the EXN of 2017. However, also this is not sure, because the UPOV members could not even reach an agreement on the wording of the report of the CC meeting, and thus adopted a very vague text.
Of course, the alliance of the breeders won´t give up and will continue to work for the adoption of Draft 3 in its current form or with slight changes, which do not change the main content of the EXN.
The report of the UPOV Council on this topic reads:
Explanatory Notes
UPOV/EXN/EDV: Explanatory Notes on Essentially Derived Varieties under the 1991 Act of the UPOV Convention (Revision) (documents C/56/9 and UPOV/EXN/EDV/3 Draft 3)
31. The Council noted that document C/56/9 provides information to assist the Council in its consideration of the revision of document UPOV/EXN/EDV2 (UPOV/EXN/EDV/3 Draft 3).
Explanatory Notes on Essentially Derived Varieties under the 1991 Act of the UPOV Convention (document C/56/9)
32. The Council noted the developments concerning the consideration of document UPOV/EXN/EDV/3 Draft 3 by correspondence, reported in document C/56/9.
33. The Council noted that the Consultative Committee had agreed to establish the Consultative Committee Working Group on Essentially Derived Varieties (CC/WG-EDV) with the following terms of reference (ToR):
PURPOSE:
The purpose of the CC/WG-EDV is to draft a revision of the “Explanatory Notes on Essentially Derived Varieties under the 1991 Act of the UPOV Convention” for consideration by the Consultative Committee and the Council in October 2023.
COMPOSITION:
(a) members of the Union that express an interest to be part of the CC/WG-EDV in reply to a Circular to be issued after the ninety-ninth session of the Consultative Committee;
(b) other members of the Union would be free to participate at any meeting of the CC/WG-EDV; and
(c) meetings to be chaired by the Vice Secretary-General.
MODUS OPERANDI:
(a) The CC/WG-EDV to
(I) use document UPOV/EXN/EDV/3 Draft 3 as the basis for preparing an agreed draft revision of the “Explanatory Notes on Essentially Derived Varieties under the 1991 Act of the UPOV Convention”;
(ii) consider the concerns that have been raised (policy, legal or technical) with regard to document UPOV/EXN/EDV/3 Draft 3 (see document C/56/9) and, as appropriate, invite members, relevant stakeholders and/or experts to elaborate their perspectives on the matters raised; and
(iii) prepare an agreed draft revision of the “Explanatory Notes on Essentially Derived Varieties under the 1991 Act of the UPOV Convention” (document UPOV/EXN/EDV/3 Draft 4) by July 31, 2023.
(b) the CC/WG-EDV to meet at a time and frequency to address its mandate, by physical and/or virtual means, as agreed by the CC/WG-EDV; and
(c) the documents of the CC/WG-EDV to be made available to members of the Union.
34. The Council noted that the Consultative Committee had agreed to consider at its one hundred and first session the outcome of the CC/WG-EDV and a recommendation to the Council, at its fifty-seventh ordinary session, on replacing or repealing the 2017 version of the “Explanatory Notes on Essentially Derived Varieties under the 1991 Act of the UPOV Convention”.
35. The Council noted that the Consultative Committee was committed to work expeditiously on a new explanatory note to be recommended to the Council.
36. The representative of CIOPORA, on behalf all the breeders’ organizations, expressed its disappointment concerning the decision not to adopt document UPOV/EXN/EDV/3 Draft 3 and considered that the decision would harm breeders. He requested that breeders’ organizations be part of the composition of the new working Group (CC/WG-EDV).
37. The President of the Council recalled that the terms of reference of the Working Group on Essentially Derived Varieties under section “MODUS OPERANDI”, paragraph (2)(ii) provided as follows:
“(ii) consider the concerns that have been raised (policy, legal or technical) with regard to document UPOV/EXN/EDV/3 Draft 3 (see document C/56/9) and, as appropriate, invite members, relevant stakeholders and/or experts to elaborate their perspectives on the matters raised; and”
38. The representative of the APBREBES expressed its support for the decision of the Consultative Committee regarding document UPOV/EXN/EDV/3 Draft 3. He suggested an expert examination on the compatibility between the wording of UPOV/EXN/EDV/3 Draft 3 and the text of the UPOV Convention and on the impact of innovation in plant breeding.
39. The President explained that the ToR of the CC/WG-EDV provided for the possibility to consult experts, if appropriate, and that the proposal for the “Seminar on the interaction between plant variety protection and the use of plant breeding technologies” was aimed at providing information on impact of plant variety protection matters.
40. In accordance with the recommendation of the Consultative Committee, the Council agreed to organize a “Seminar on the interaction between plant variety protection and the use of plant breeding technologies” in hybrid format, to be held on March 22, 2023.