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A. General Aspects 



1. In its principle, the concept of e.d.v. deals with the genotype rather than with 

 the phenotype. Contrary to the principle of "clear distinctness" of Article 7 of 

 the UPOV Convention being judged on the basis of the expression of certain 

 morphological or physiological characteristics, Article 14(5) has to do with the 

 question whether the essence of the genotype of the initial variety (i.v.) 

 has been taken over - that means whether it retains virtually the totality of the 

 genome of the i.v. - retaining the expression of the essential characteristics. In 

 this respect, "...essential characteristics that result from the genotype..." 

 include only inheritable characteristics. Furthermore, depending on the given 

 genetic constitution of a given plant species and established breeding 

 technology the required threshold of the quantity of conformity can be different 

 for different species. 



2. The "genetic distance/conformity" should be judged on a species-by-species 

 or even within-a-species basis. The methods of derivation may be used as a 

 tool to help to establish or to define an e.d.v. 



The given list of examples for methods of derivation [selection of a natural or 

 induced mutant or of a somaclonal variant, selection of variant individual from 

 plants of the i.v., multiple backcrossing, transformation by genetic engineering: 

 see Article 14(5)(c)] is not an exhaustive list. 



3. Whether or not a plant variety is an e.d.v* may need to be based upon 

 scientifically reliable methods. This may start with the judgement of essential 

 characteristics and be completed by methods of genome identification in so 

 far as adequate methods are available. Depending on the given species, this 

 assessment can vary in relation to different methods of derivation used and 

 also by different - genetic distances. Scientific and reliable methods for the 

 proof of genetic distances might be e.g. RFLP (Restricted Fragment Length 

 Polymorphism), RAPD (Random Amplification of Polymorphic DNA), PCR 

 (Polymerase Chain Reaction), combining ability. 



4. This assessment should be made by species specific experts skilled in the art, 

 including breeders, molecular geneticists, etc. 



5. The plant variety offices have only a duty to prove whether a plant variety 

 having been entered for protection fulfills the requirements for protection 

 (DUS-test), regardless of the question of whether it is an e.d.v. or not. Thus for 

 ASSINSEL it is important and obvious that the' determination of the existence 

 of an e.d.v. should not be a part of the procedure for granting plant breeders' 

 rights. However, registration data of the variety based on UPOV guidelines 

 should be available after granting of rights. 



6. The determination as to whether a plant variety is an e.d.v., is mainly a 

 question of whether it has been derived from a given variety (see 2). 

 Where a plant variety has been developed without using that variety there 

 cannot be essential derivation. However, the general rules of burden of proof 

 have to be considered (see C. below). 



