What is protected?
The licence protects seed, not varieties. It is a material-transfer agreement that confers use rights together with the material object. When the material is transferred, a contract is entered into that ensures the mutual, reciprocal rights and duties associated with the material in question, as well as all future developments to that material, in perpetuity. As such, the licence implicitly also pertains to the genetic information contained within the given material.
The term “variety”, however, denotes something immaterial and cannot be subject to a material transfer agreement. The open-source licence is fundamentally different from a plant variety protection regime. Rights to a variety – i.e. something immaterial – can only be held by someone owning its intellectual property rights. Such variety protection may be granted by the state, but a variety (which is immaterial) can only be transferred as seeds (which are material).
Independently from this, breeders may also register open-source licensed varieties in Germany according to the criteria of the Seed Marketing Act. Seed that is registered in the catalogue of the German Federal Office of Plant Varieties may be marketed.