Essential derivation of Varieties and the imminent challenges to Indian Plant Breeders

To get the protection for essentially derived variety, the initial variety must be a protected first, because the dependence can only exist in relation to protected variety. While determining whether a variety is EDV or not, it is to be noted that, an EDV can be directly derived from the initial variety or from any variety that itself is predominantly derived from the initial variety. Hence there can be "cascade" of derivations. In determining the cascade of derivation, it should be noted that each EDV shall only be dependent on one, the protected initial variety; a cascade of dependence shall not exist. This principle of dependence has been introduced to better protect the breeder of the initial variety and not those having made just derivations. More recently, based on the general opinion of its members, ISF moved to the definition of only one threshold that would divide the scale of conformity into two parts: below the threshold there would be no presumption of essential derivation, above the threshold there would be presumption of essential derivation and the burden of proof of non predominant derivation would fall on the breeder of the putative essentially derived variety. The threshold will certainly vary from species to species, depending on the existing genetic variability within the species and the established breeding procedures. To eliminate the ‘copycat breeding’ or ‘cosmetic breeding’, the concept of ‘essential derivation’ was included in the revised UPOV convention Act (UPOV, 1991).This paper therefore focuses on the imminent challenges to the breeders and the responsibilities they need to shoulder to respect and promote the IP and plant variety protection in India to usher in an era of incentives and benefit sharing for the plant breeders.