4.4.1 Essential Characteristics

The basis of Distinctness is an objective comparison of the variety with the most similar variety(ies) of common knowledge. Quantitative and qualitative differences between the new and existing varieties must be established and recorded. These are "the Essential characteristics" that are used to distinguish the new variety from all other varieties of common knowledge.

Morphological characteristics, especially those least affected by environmental factors are preferred. However, tests such as comparative DNA or protein profiles are acceptable as supporting evidence. Clear repeatable varietal differences must be demonstrated.

Performance attributes can also be included as distinguishing characteristics provided they are clear and consistent.

There is no simple statement that covers all situations of when a variety is sufficiently distinct to justify protection. As a general rule of thumb a registrable variety has to be clearly distinct from all varieties of common knowledge by the expression of at least one characteristic that is genetically determined. In practice, varieties are considered on a case-by-case basis.

As an additional test of distinctness, applicants for Plant Breeder's Rights on varieties of Australian species are required to provide a herbarium specimen to the Australian Cultivar Registration Authority (ACRA) using form HERB1.

DNA testing alone is not used for determining distinctness because, in the view of UPOV, insufficient DNA categorisation work has been undertaken. Nevertheless some courts have been prepared to rule on the basis of DNA test results in regard to infringement actions.

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