Essential Derivation, Law and the Limits of Science

This article focuses on the concept of ‘essential derivation’ which refers to the situation where the breeder of one variety – the ‘initial variety’ – claims that another breeder has developed a second variety – the ‘putative essentially derived variety’ – that is virtually the same as the initial variety. Clarity is necessary to ensure the effectiveness of essen­tial derivation as a legal concept and, more broadly, to enable the plant breeders’ rights scheme to remain relevant. In examining the concept of essential derivation, this article first looks at the general trends in plant breeding techniques. It then considers the concept of ‘essential derivation’ in light of the breeder’s exemption, the low threshold of dis­tinctiveness and the limited infringement provisions in plant breeders’ rights schemes. This is followed by a discussion of the scientific (quan­ti­tative) approach to determining whether a variety is essentially derived and outlines the limits of such an approach. The article argues that the judiciary and legislature have imported notions of quality into the assessment of essential derivation. This has a number of advan­tages, including the ability to meet the needs of developments in plant breeding techniques and providing plant breeders with greater certainty in relation to whether new varieties are essentially derived