As genome editing transforms plant breeding, essentially derived varieties are becoming a critical intellectual property issue. From UPOV's EDV rules to the 2026 Nadorcott ruling, this Seed Sector 2045 analysis examines how breeders can balance innovation, genetic ownership and licensing.
The post Seed Sector 2045: Why NGTs Make the EDV Question More Important Than Ever appeared first on Seed World.
As genome editing allows breeders to make precise changes while retaining almost the entire genetic foundation of successful varieties, the boundary between an independent variety and an essentially derived variety is becoming increasingly important.
When I think about Essentially Derived Varieties (EDVs) in 2045, one scenario keeps coming back to me. A breeder has spent perhaps a decade or more creating an outstanding wheat variety. Yield, maturity, quality, standability, adaptation and a package of disease resistances have all been brought together into one successful genetic combination.
Another breeder takes that finished variety and uses genome editing to introduce resistance to one additional disease. The improvement may be important, perhaps extremely important. But apart from that targeted change, virtually the whole genetic platform still comes from the breeder who created the original variety.
So, who should control its commercialisation? The question may sound futuristic, but plant breeders and intellectual property experts are already wrestling with it. It takes us into one of the least understood, but potentially most consequential, parts of plant breeders’ rights: the essentially derived variety, usually shortened to EDV. For anyone coming to the subject for the first time, this 90-second introduction to the EDV concept is a useful starting point.
This Seed Sector 2045 series looks ahead at how today’s technological, regulatory and commercial developments may reshape plant breeding over the next two decades. As genome editing becomes faster and more precise and increasingly allows breeders to improve an existing elite variety without rebuilding it from scratch, I think EDV deserves a prominent place in that discussion.
Why EDV Exists in the First Place
To understand why, we need to go back to one of the foundations of plant variety protection: the breeder’s exemption. A breeder can use a protected variety for further breeding without first obtaining permission from its owner. The relationship between the breeder’s exemption and the EDV concept is fundamental because each generation of plant breeding builds on what came before.
That openness creates enormous innovative value, but it also contains a vulnerability. What happens if somebody does not create a genuinely new genetic combination through normal crossing and selection, but instead takes a successful protected variety, makes a targeted alteration and then competes with the breeder who created virtually its entire genetic foundation? This is why the EDV principle is much more than a plagiarism prevention mechanism.
The EDV concept entered the 1991 Act of the UPOV Convention. Article 14(5) extends the breeder’s right to varieties that are essentially derived from a protected initial variety. The Convention itself identifies natural or induced mutants, somaclonal variants, selection of a variant individual, backcrossing and transformation by genetic engineering among examples of routes through which an EDV may be obtained.
The principle is not that further breeding is prohibited. A second breeder remains free to use the initial variety for breeding and may obtain protection for the resulting variety in its own right. What changes is commercialisation: while the initial variety remains protected, commercial exploitation of an EDV requires authorisation from the holder of the right in the initial variety, because the EDV continues to embody much of the breeding innovation and investment created by the breeder of that initial variety.
That distinction is important. The EDV concept preserves access to germplasm while recognising that commercial dependence can continue beyond the creation of a distinct new variety. Questions around who does what, when dependency arises and how EDV should operate in practice have therefore occupied breeders and PVP specialists for many years.
The Question We Kept Coming Back To
I have spent many hours discussing what sounds like a simple question: when a new variety is developed from only one existing variety, a so called monoparental variety, is it automatically an EDV? When UPOV tackles a particularly difficult issue, it often creates a working group that examines the subject before deciding whether its explanatory guidance needs to be revised.
The EDV debate followed that pattern. Concerns had been building over the way the earlier guidance was being interpreted, particularly as new breeding technologies made it increasingly possible to change an existing genotype without introducing a second parent. The breeding community had already been asking whether the UPOV interpretation of EDV needed to change and discussing how the revision process itself should work.
During that process, the African Seed Trade Association (AFSTA), the Asia and Pacific Seed Association (APSA), Communauté Internationale des Obtenteurs de Plantes Ornementales et Fruitières à Reproduction Asexuée (CIOPORA), CropLife International, Euroseeds, the International Seed Federation (ISF) and the Seed Association of the Americas (SAA) created a joint EDV Task Force with experts from the seven organisations. I was one of its members, and I remember how often we came back to the monoparental question.
We looked at mutation. We looked at genetic modification and genome editing. Most importantly, we kept returning to the precise construction of Article 14(5) and asking whether there was a legally coherent situation in which a genuine monoparental variety could qualify as a new variety and yet fall outside the EDV concept. After approaching the issue from many angles, we kept arriving at the same conclusion: monoparental varieties are per se EDVs.
That conclusion goes further than the wording eventually adopted in the 2023 UPOV Explanatory Note. The revised text says that varieties with a single parent resulting, for example, from mutation, genetic modification or genome editing are per se predominantly derived from their initial variety. The 2023 revision of the Explanatory Note was an important step, but from the perspective of the seven breeder organisations it stopped one logical step short. Why? To understand that, I think we have to put the Explanatory Note aside for a moment and return to the Convention itself.
Let Us Take the Legal Test One Step at a Time
Before dissecting Article 14(5)(b), one point is essential. Paragraphs (i), (ii) and (iii) are cumulative requirements. They are not three alternative tests from which we can choose whichever seems most convenient. All three must apply for a variety to qualify as an EDV, which also means that all three have to be read together.
That becomes particularly important when people focus on the words “retaining the expression of the essential characteristics” in paragraph (i) without simultaneously considering the explicit exception for differences resulting from the act of derivation in paragraph (iii).
What Article 14(5)(b) Actually Says
For a variety to be essentially derived from another variety, the UPOV 1991 Convention states that:
(i) it is “predominantly derived from the initial variety, or from a variety that is itself predominantly derived from the initial variety, while retaining the expression of the essential characteristics that result from the genotype or combination of genotypes of the initial variety”;
(ii) it is “clearly distinguishable from the initial variety”; and
(iii) “except for the differences which result from the act of derivation, it conforms to the initial variety in the expression of the essential characteristics that result from the genotype or combination of genotypes of the initial variety.”
Now let us take those requirements one by one. The first question is whether the new variety is predominantly derived from the initial variety. For a genuine monoparental variety, that seems difficult to dispute. If Variety B is created by mutating Variety A, genome editing Variety A or genetically modifying Variety A without introducing another parental genotype through crossing, its genetic foundation comes from A. There is no second parent whose contribution needs to be disentangled.
The second requirement is that B must be clearly distinguishable from A. Again, if B is going to constitute a separate new variety, that distinction has to exist. Otherwise, we do not have a second variety for the EDV analysis in the first place.
Then comes paragraph (iii), and this is where I believe the wording becomes decisive. The resulting variety must conform to the initial variety in its essential characteristics, except for the differences resulting from the act of derivation.
Imagine that Variety A is genome edited and the edit introduces disease resistance. Where does that difference come from? It comes from the act of derivation. If irradiation creates seedlessness, or mutation alters flowering time or fruit colour, those differences likewise result from the act that created the derivative.
With a genuine monoparental variety, there is no second parental genotype supplying another source of variation. The differences between the initial variety and the derivative necessarily arise through the act or acts of derivation.
Read together, the three requirements kept leading us to the same place. The new variety is predominantly derived from one initial variety. If it is a separate variety, it is clearly distinguishable. And when conformity is assessed under paragraph (iii), the differences created through mutation, genetic modification or genome editing are exactly the differences the Convention tells us to except from that comparison.
This interpretation is now also expressed very clearly in ISF’s publicly available View on Intellectual Property. ISF concludes that in a monoparental derivation all differences necessarily result from one or more acts of derivation and that monoparental derivation therefore inevitably results in an EDV.
The Essential Characteristics Trap
There is nevertheless one phrase that caused us a great deal of discussion. Article 14(5)(b)(i) speaks about retaining the expression of the essential characteristics resulting from the genotype or combination of genotypes of the initial variety. Taken on its own, that phrase might suggest that if an act of derivation changes an essential characteristic, the new variety can no longer be an EDV. But once you start testing that interpretation against practical breeding situations, it creates an odd result.
Suppose I make a relatively insignificant change to a protected variety. The resulting variety might remain an EDV. Now suppose I make an extremely valuable change, perhaps resistance to a devastating new disease. If that characteristic is then considered essential, the very success of my act of derivation could become the reason why I escape EDV dependency.
In other words, the better the derivation works, the easier it could become to fall outside EDV. I have always found that difficult to reconcile with the logic of the provision, particularly because Article 14(5)(c) itself identifies mutation and genetic transformation among the routes through which EDVs may arise. This was already one of the central concerns behind the breeding sector’s practical interpretation of the EDV concept. Paragraph (iii) cannot simply disappear when paragraph (i) is being interpreted.
The 2023 Explanatory Note helped considerably by clarifying that there is no upper limit to the number of differences that can result from an act of derivation and that those differences may include essential characteristics. But again, it stopped at calling monoparental varieties per se predominantly derived.
For the wider breeding community, the conclusion goes further. When (i), (ii) and (iii) are applied cumulatively and read together, the argument is that a genuine monoparental variety falls within the EDV concept itself.
NGTs Change the Scale of the Issue
For many years, all of this could sound like a debate for a small group of PVP lawyers and specialists. New Genomic Techniques (NGTs) are turning it into a much more practical breeding and commercial question.
Traditional crossing creates recombination. Cross two genetically different parents and their genomes are reshuffled. The breeder then selects among offspring over successive generations and gradually builds the genetic combination that will become the new variety.
Genome editing offers a very different possibility. The breeder can start with an already successful genotype and alter precisely the feature that needs improving while retaining essentially everything else. When I looked earlier at how CRISPR, artificial intelligence, genomic prediction and other technologies are hitting fast forward, the emphasis was on how those technologies could accelerate breeding. The other side of that acceleration is that EDV becomes more, not less, important.
The scale of the genetic change can be astonishing. Bread wheat has a genome of about 16 billion base pairs(which is five times larger than the human genome). Researchers have produced robust powdery mildew resistance through a targeted deletion of 304,000 base pairs around the MLO B1 locus, avoiding the growth and yield penalties associated with earlier MLO mutations. Put those two numbers beside each other. A 304,000 base pair deletion in a 16 billion base pair genome represents approximately 0.0019%of the genome. Looked at from the other direction, about 99.9981% lies outside that deletion.
Of course, this is not an EDV calculation. Biological importance cannot be measured simply by dividing the number of edited base pairs by genome size. Some traits involve a single nucleotide, others are polygenic, and a small genomic alteration can have major effects on phenotype. But the example illustrates something fundamental. A minute genetic change can create an agronomically significant improvement while the overwhelming majority of the genetic background remains unchanged.
That is exactly why NGTs change the practical importance of the EDV debate. An elite variety is not one characteristic. It is the accumulated result of thousands of breeding decisions that have brought yield, maturity, disease resistance, quality, plant architecture, stress response, local adaptation and many other characteristics together into one genotype that actually works in farmers’ fields.
If another breeder can take that finished package and change precisely the characteristic that has become its weakness, the new contribution may be genuinely innovative and commercially very valuable. But the second breeder has not recreated the genetic package underneath it.
We were already discussing this tension several years ago when looking at NBTs and EDVs with Edgar Krieger. A conventional breeder may spend ten or twelve years developing the starting variety, while a new breeding technique can make a targeted improvement much more rapidly. That difference in time does not diminish the value of the new improvement, but it does make the question of how value is shared much more visible.
Innovation and Derivation are Different Questions
This distinction is, for me, one of the most important in the entire EDV discussion: a variety can contain genuine innovation and still be an EDV. Calling something essentially derived does not mean that the second breeder has done nothing innovative. It does not mean the new disease resistance, quality trait or other improvement lacks value. Nor does EDV status prevent the resulting variety from qualifying for plant variety protection in its own right.
What an EDV status recognises is that this new innovation may still rest on a protected genetic foundation created by the breeder of the initial variety, which is why commercialisation can remain dependent while that initial variety is protected.
The question is different: where did the genetic foundation on which the new innovation was built come from? That balance between protecting the original breeding investment and enabling further improvement is precisely why EDVs remain an important tool in plant breeding.
This becomes even more significant as multiplex editing develops. Much of today’s public discussion still imagines one edit producing one changed characteristic, but increasingly several targeted changes can be made in parallel. Counting edits therefore cannot be the answer. One genetic alteration may affect several observable characteristics, while numerous precise edits may still leave almost all of the initial genotype intact. For a monoparental variety, the important question remains the pathway of derivation.
If all those changes have been made in one initial variety, without a second parental genotype being introduced through crossing, the position of the breeder organisations is unchanged: the result is an EDV.
Licensing is Not Something Strange
I sometimes think the word “licence” makes the EDV discussion sound more restrictive than it really is. Licensing is an entirely normal part of an innovation economy, even though most of us rarely think about it in daily life. Take a smartphone. The person buying it does not personally negotiate licences for 4G, 5G and the many other protected technologies that make the device work. Behind that product, however, sits a complex licensing ecosystem in which manufacturers obtain access to technologies created by other innovators. Standard essential patent licensing is one familiar example.
Plant breeding is obviously a very different field, but the basic economic principle is not unusual. If an EDV combines an important new improvement with a protected genetic platform created by another breeder, licensing gives both contributions a route to market. The breeder of the EDV may have created something commercially valuable. The breeder of the initial variety may have spent years creating the genotype on which that improvement depends. A licence does not have to deny either contribution; it can recognise both.
Commercial arrangements can also reflect the circumstances. The value of the improvement, the crop, market opportunity, remaining term of protection and other factors can all play a role in negotiations. There is no reason to imagine one rigid EDV licence for every situation.
For me, one of the most important benefits of clear EDV rules is therefore predictability before the investment is made. If both parties can understand at the start of a breeding programme that a resulting variety may remain dependent on the initial variety, they can address the potential commercial relationship before years of development, field testing and market preparation have taken place.
That is a much healthier situation than discovering dependency only when a new variety is ready to launch. It also fits the wider conversation about intellectual property, access and licensing around NGTs, where the central challenge is similarly how to combine access to innovation with a return on the investment behind it.
And where breeders nevertheless disagree about EDV status or the application of a licence, specialised mediation or arbitration can offer another route for resolving the dispute without every disagreement having to become lengthy court litigation. ISF’s current dispute settlement framework expressly covers intellectual property and EDV disputes.
Then Came Nadorcott, and the Logic Was Put to the Test
If this still sounds theoretical, the Nadorcott mandarin provides a remarkably concrete example. The name may already be familiar to readers because Nadorcott was at the centre of earlier European litigation over provisional protection and harvested material. That earlier case prompted calls for UPOV to improve the PVR system and later a broader reconsideration of the cascade provision. The 2026 UK case, however, raised a different question altogether: whether Tang Gold is an EDV of Nadorcott.
In March 2026, the High Court of England and Wales decided Nador Cott Protection SAS v Asda Stores Limited & Anor, involving the protected Nadorcott mandarin and the variety Tang Gold, also marketed in some countries as Tango.
Tang Gold was developed by the University of California Riverside through irradiation of Nadorcott material. No second variety was used in a cross. Tang Gold is therefore a textbook example of a monoparental derivative. The irradiation produced an important difference. Compared with Nadorcott, Tang Gold has greatly reduced pollen viability and remains essentially seedless even when cross pollinated. For growers and the citrus value chain, those differences can have considerable commercial value.
The court nevertheless held that Tang Gold was not an EDV of Nadorcott under the UK Plant Varieties Act. The decisive issue was not whether Tang Gold had been derived from Nadorcott, but whether it retained the expression of Nadorcott’s essential characteristics. The court treated pollen viability and seediness as essential characteristics and concluded that the EDV test had not been met.
This is where I struggle with the outcome. The very act of derivation, irradiation, produced the differences in seediness and pollen viability. Yet those same differences then helped the derivative escape EDV dependency. To me, that is the essential characteristics trap in real life. The more commercially successful the act of derivation becomes, the stronger the possibility that the changed characteristic is considered essential, even though paragraph (iii) explicitly tells us to except differences resulting from the act of derivation when conformity is assessed.
From the perspective developed by the seven breeder organisations, Tang Gold is an EDV of Nadorcott. The court reached a different legal conclusion, but the case shows why the interpretation matters far beyond citrus.
Replace irradiation with genome editing. Replace seedlessness with resistance to a devastating disease, tolerance to an abiotic stress or a major quality improvement. The same legal and economic question immediately reappears.
Multiparental Varieties are the Harder Case
Monoparental varieties are, in my view, the clearer case. Once two or more genetically different parents enter the breeding process, the assessment becomes considerably more difficult. A high degree of genetic similarity does not automatically mean that one variety was predominantly derived from another. Breeders may work from related germplasm, pursue similar breeding goals or independently select towards similar outcomes. A narrow genetic base within a crop can also mean that otherwise independently developed varieties are unusually close.
At the same time, a breeder can deliberately retain an unusually large proportion of one parent’s genome through repeated backcrossing and increasingly precise genomic selection. Somewhere between normal crossing and selection and predominant derivation, a line has to be drawn. This is where genetic similarity can become extremely useful evidence, but it is important not to ask molecular data to answer a question it cannot answer on its own. Similarity can tell us that two varieties are unusually close. It cannot, by itself, tell us how they became that close.
Shared ancestry, a narrow germplasm pool or independently undertaken similar crosses can all produce high similarity without one variety having been essentially derived from the other. Pedigree information, breeding records and the actual process of derivation therefore remain central to the assessment.
There is another principle that I think should become much better understood: there cannot sensibly be one universal similarity threshold for all crops. Reproductive biology, genetic diversity, population structure and normal breeding practice differ too much from one crop to another. Every crop therefore needs its own scientifically justified threshold or, where a simple numerical threshold is not appropriate, its own crop specific methodology.
There is already considerable experience to build on. ISF has developed crop specific approaches for perennial ryegrass, maize, oilseed rape, cotton, lettuce and mushroom, while newer work has examined soybean and wheat. The differences between those crops illustrate the point. Lettuce guidance uses a Jaccard similarity of 0.96 as a trigger point, while perennial ryegrass uses 0.60. Oilseed rape uses another coefficient and another threshold. Cotton proved difficult to address with a straightforward molecular threshold and therefore relied more heavily on parentage information. Those numbers should not be placed side by side and read as if they were scores on a universal scale. Different crop biology, marker systems, genetic structures and statistical approaches sit behind them.
And there is a second layer to crop specificity that deserves more attention. A threshold should reflect the known genetic diversity of the species internationally, rather than being calibrated only against a narrow national set of varieties. A threshold developed from too limited a germplasm pool could become misleading when varieties, breeding material and parental lines move across borders.
In practical terms, that means the quality of the reference population matters almost as much as the number eventually chosen. If an EDV framework is intended to operate in international seed markets, the underlying data need to capture the breadth of diversity breeders may actually encounter. This crop specific logic is already appearing in national implementation. China’s operational EDV framework, for example, started with ten crops and crop specific determination guidance and thresholds rather than trying to impose one number across species.
By 2045, many more crops may have deep genomic datasets and highly sophisticated similarity tools. Measurement will probably become much easier. Interpretation will remain crop specific, and the international representativeness of the data behind those thresholds will matter greatly.
A Threshold is a Trigger, not a Verdict
There is another distinction worth making because EDV discussions can become very numerical very quickly. A crop specific similarity threshold does not mean that every variety above that number is automatically an EDV. The threshold is better understood as an evidentiary and procedural trigger. If similarity exceeds an agreed level, the burden of proof may shift, requiring the breeder of the putative EDV to provide evidence about pedigree, breeding history or the actual development process showing why the variety was independently developed or why one of the EDV requirements is not fulfilled.
That is an important difference. The number helps decide when a relationship looks unusual enough to demand an explanation. It does not replace the legal requirements in Article 14(5). I have found this distinction increasingly useful in EDV discussions because numbers have a seductive clarity. A percentage feels objective and definitive. But the percentage is evidence, not the answer. The real question remains derivation. How did these two varieties become so similar? Was one deliberately and predominantly derived from the other, or did the similarity arise through shared ancestry, a restricted germplasm pool, comparable crosses or independent selection?
By 2045, whole genome sequencing, haplotype analysis, enormous reference databases and other analytical tools may tell us with extraordinary precision how closely two varieties are related. The difficult question will no longer be whether we can measure similarity. It will be what that similarity means in the breeding history and biology of that particular crop.
So, What Should Seed Companies Do?
- Assess EDV questions before the breeding programme starts. If a protected variety is being used as the sole starting point for mutation, genome editing or genetic modification, possible EDV dependency should be part of the initial project assessment. It belongs alongside freedom to operate, PBR strategy and other IP considerations, rather than appearing only when commercial launch approaches.
- Do not confuse innovation with independence. A new disease resistance, quality trait or stress tolerance can be genuinely valuable and can support protection of the resulting variety in its own right. But the importance of the improvement does not answer the separate question of whether the genetic platform remains essentially derived from the initial variety.
- Plan for licensing where appropriate. If an EDV depends on a protected initial variety, authorisation may be needed for commercialisation. The earlier that potential relationship is identified, the easier it is for the parties to negotiate before major investments have been made in development, testing, registration and market launch.
- Keep good pedigree and breeding records. This becomes particularly important for multiparental varieties, because high genetic similarity alone does not explain how that similarity arose. Pedigree information, crossing history, selection records and molecular evidence may all become important if independent development needs to be demonstrated.
- Understand what sits behind the crop specific threshold. Companies should know not only the numerical trigger or methodology for the relevant crop, but also how it was developed and what genetic diversity was represented in the reference population. A threshold based on internationally representative germplasm will be much more meaningful in cross border breeding and seed markets than one calibrated against too narrow a genetic base.
EDV stewardship may therefore increasingly become part of ordinary breeding strategy. I would put it alongside PBR protection, freedom to operate, trait licensing and other decisions that companies already make long before a variety reaches the market.
The Technology Changes, but the Question Remains
When UPOV 1991 introduced the EDV concept, CRISPR did not exist and today’s ability to make precise changes in elite plant genomes would have sounded futuristic. Yet the underlying problem was already understood: how do we keep protected varieties freely available for further breeding while ensuring that somebody cannot capture almost the entire breeding achievement of another breeder through a dependent variety?
NGTs make that question more urgent because they increasingly allow breeders to improve the finished genotype rather than break it apart through crossing and reconstruct it through years of selection. From a breeding perspective, that is enormously exciting. From an IP perspective, it makes the boundary between independent breeding and essential derivation increasingly important.
By 2045, EDV may therefore be far from an obscure corner of plant breeders’ rights. It may become one of the mechanisms through which value is shared between conventional breeders, genome editing companies, trait developers, specialist breeders and technology providers working with one another’s innovations.
As I see it, the challenge is to preserve two things at the same time. We need genuine freedom to breed because plant breeding depends on continued access to germplasm. But we also need incentives for breeders to spend years creating the elite varieties on which increasingly precise follow on innovation can subsequently be built. The legal wording dates from 1991, while the technology around it is changing almost beyond recognition. I do not think that makes EDV outdated. If anything, it makes getting the interpretation right more important.
Perhaps that is the real EDV question for 2045: Can we make sure that the breeder who creates the next improvement is rewarded without allowing the breeder who created the genetic platform underneath it to disappear from the equation?
The post Seed Sector 2045: Why NGTs Make the EDV Question More Important Than Ever appeared first on Seed World.