20 



-3- 



7. Essential derivation is a matter of fact whereas dependency resulting 

 herefrom is a possible legal consequence. Therefore, if an e.d.v. has been 

 claimed and proved as such with legal validity it remains an e.d.v. On the 

 other hand, one variety which first has been assumed to be independently 

 developed can be later on claimed and proved to be an e.d.v. with ail the 

 consequences that that proof implies, for the variety itself and for those 

 essentially derived from it. 



An e.d.v. remains an e.d.v. forever. Even if the protection period of the i.v. has 

 been exhausted, a variety derived from the first variety in a chain of essentially 

 derived varieties remains an e.d.v. and the remaining varieties in the chain 

 will still be regarded as essentially derived from the i.v. The reason for this 

 lies in the spirit of the concept of dependency. This very new principle has 

 mainly been introduced to protect more efficiently the initial breeder and not 

 those who make derivations from his work. 



B. Special Interpretations of Article 14(5) 



1 . The principle of dependency only exists in favour "of the protected variety" 

 [see Article 14(5)(a)(i)]. 



This means: 



a) The initial variety must be a protected one. 



b) Dependency can only exist from one protected variety alone. 



c) A dependent variety can be directly derived from the i.v. or from a variety 

 that is itself predominantly derived from the i.v. [see Article 14(5)(b)(i)]. 

 As already mentioned under A.7, dependency only exists in relation to 

 the i.v. 



2. ASSINSEL interprets Article 14(5)(b) ("a variety should be deemed to be 

 essentially derived from i.v.") in that the e.d.v. effectively has to meet the 

 following three requirements in relation to the initial variety while retaining 

 the expression of its essential characteristics: 



a) clear distinction in the sense of Article 7; 



b) predominant derivation; 



c) genetic conformity. 



If one requirement is not fulfilled, there will be no essential derivation. 



3. The methods of breeding which can be regarded as leading to an e.d.v. may 

 differ from species to species, or even within a species. This will result in 

 different thresholds being required to characterize dependency. 



