CIOPORA Secretary General Dr Edgar Krieger participated in the CPVO Meeting of Examination offices (EOM) contributing a presentation on the issue of variety distinctness.
In CIOPORA's opinion, the EU Regulation 2100/94 (CPVR), discriminates two different degrees of "difference" between plant varieties:
1. a (smaller) botanical degree which simply declares a variety different from an existing variety, irrespective of whether the conditions for the grant of a PVR are fully met. According to Article 5 of the EU Regulation 2100/94, such a variety is:
- Defined by the expression of the characteristics that result from a given genotype or combination of genotypes, distinguished from any other plant grouping by the expression of at least one of the said characteristics, and considered as a unit in regard of its suitability for being propagated unchanged.
2. a (broader) legal degree (“Distinctness”), which qualifies a variety for getting CPVR Protection as provided by Articles 6 and 7 of the Regulation, stating that:
- Community plant variety rights shall be granted for varieties that are: (a) distinct; (b) uniform, (c) stable and (d) new.
- A variety shall be deemed to be distinct if it is clearly distinguishable by reference to the expression of the characteristics that results from a particular genotype or combination of genotypes, from any other variety whose existence is a matter of common knowledge on the date of application determined pursuant to Article 51.
Dr Krieger argued that based on this degree of difference, one should discriminate between a variety "distinguished ... by the expression of at least one ... characteristic..:", and a protectable variety, which, to obtain a PVR title, has to be "clearly distinguishable" from any other existing variety.
This legal mechanism is key for a sufficiently broad minimum distance between plant varieties and the scope of protection, since varieties, which are not clearly distinguishable from the protected variety, fall into the scope of the protected variety and must not be commercialized without authorization of the titleholder of the said variety.
Download the presentation: Distinct or Just Different?
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