Growing Smarter – Navigating Patents, Breeders’ Rights, and Equity in Agricultural Innovation in Europe

Plant scientists across the EU rally ahead of a vote in the EU Parliament on NGT's, February 2024

The Context: A turning point in EU agricultural policy

On May 6, 2025, the EU trilogue negotiations began on a proposed regulation to govern the use of New Genomic Techniques (NGTs) in agriculture. In 2023, the European Commission formulated a draft law, which was then commented on by the EU Council and the EU Parliament in accordance with European framework conditions (see structure of the EU). If the representatives within the bodies agree, negotiations between the three institutions, the so-called trilogue, begin. The EU presents the various positions in a column paper at the start of the trilogue negotiations, so that the various committees and stakeholders can easily see which discussion points are still open. The EU trilogue negotiations are intended to serve the final compromise finding.

During the legislative process for the regulation of NGTs, many interest groups have expressed their views and brought their assessments and/or criticisms into the discussion through so-called position papers. The criticisms mainly concerned three areas: labeling, traceability, and especially intellectual property rights such as patents.

Plant variety protection

In plant breeding, plant variety protection plays a central role. With it, breeders can protect their bred varieties for 20-30 years, so that no one can grow and market exactly this variety without a license. The rights to market the propagation material (seeds, scions, cuttings) lie solely with the holder of the plant variety protection. However, protected varieties may also be used for breeding new varieties.

Patents 

In the current debates around new breeding technologies, patent law is contrasted with plant variety protection. Patents and plant variety protection cover different aspects. Patents can be granted on specific traits of plants (i.e., specific DNA segments). Since these traits can and should be used for multiple varieties, for example, to strengthen resistance properties against pathogens, the traits cannot be protected by plant variety protection. A lot of time and money is invested in identifying and generating such traits (i.e., research through genetic modification), which is why research companies have an interest in being able to protect not only varieties but also specific traits through patents.

Plant breeding and patents - A discussion lasting over 100 Years

The debate on intellectual property rights, patents, and plant variety protection has been ongoing in Europe for over 100 years. Due to the lack of adequate protection for seeds, breeders at the beginning of the 20th century resorted to various methods. For example, the names of varieties were registered as trademarks, or attempts were made to contractually oblige buyers of plant material not to use the seeds for propagation. In Germany, both methods had only moderate success, so patent law was also used. Breeders tried to obtain patent protection for their seeds by referring to §2 para. 1 of the Patent Act of 1877, in which biological inventions were not explicitly excluded (Neumeier, 1990). In a decision on June 12, 1914, the patentability of agricultural cultivation methods was rejected, but following a ruling on June 24, 1922, patents on plant breeding methods were again granted (Neumeier, 1990).

Plant variety protection desired 

As breeders increasingly faced inferior seeds or replicas in the market, they increasingly demanded protection for their seeds comparable to patent law. The breeders' demands were summarized in 1927 in the resolution of the Conseil International Scientifique Agricole (International Scientific Council for Agriculture).

It was not enough to protect the names of new varieties; the breeder had the right to compensation against the user of the variety (Neumeier, 1990). However, the demands initially fell on deaf ears, as political representatives did not want to burden agriculture with additional license payments. In 1934, the “Reichsnährstand” issued a regulation on seeds, which also accommodated breeders, as regulations (variety characteristic recording & variety cultivation trials regarding yield and resistance to pathogens) prevented the spread of inferior seeds or unlicensed replicas. However, it was not until 1953 that a protection right for plant varieties was established in Germany, reigniting the discussion on plant variety protection versus patents. After extensive discussions, it was agreed that the Seed Act should take precedence over the Patent Act (Neumeier, 1990).

The new breeding technologies 

With the development of genome editing and new genomic techniques (NGTs) such as the CRISPR/Cas gene scissors and the planned adaptation of the EU council directive of 23 April 1990 on the deliberate release into the environment of genetically modified organisms (Directive 90/220/EEC), many arguments of genetic engineering opponents can be refuted. Horrific images, such as tomatoes or corn being injected with foreign genes via syringes, are no longer relevant because the DNA of NGT plants is altered by plant-specific repair mechanisms. The DNA is broken at a desired location by the gene scissors, and the effects caused by repair errors are then examined. Even very small changes in DNA can have significant impacts on plant properties.

Mutagenesis as non-targeted genetic engineering

A long-used method that yields similar results is mutagenesis. For many decades, plants and seeds in plant breeding have been exposed to stressors such as radioactivity or chemicals, causing DNA damage at many sites and resulting in new traits. In nature, this occurs through UV rays. While mutagenesis leads to many unspecific mutations whose effects cannot all be analyzed, genome editing is a highly precise method because the exact site of DNA breakage is known.

In 2018, the European Court of Justice ruled that mutagenesis is a form of genetic engineering, but due to long experience, no dangers are expected in handling it. Accordingly, no unknown risks are expected with NGTs either, as confirmed by various scientific institutions such as the "National Academy of Sciences Leopoldina" and the "German Research Foundation" in a joint position paper on the draft law regulating NGTs.

Industrial property rights as the last bastion

Therefore, not much remains in the argument against genetic engineering, leading various groups to focus on preventing the patenting of plant traits. The main argument against patenting seeds is that breeders could be hindered in their work, as they would not be able to freely use their breeder's privilege, which allows them to continue breeding with established varieties and freely use the traits of the varieties. If traits are patented, the breeder would need a usage right, which the patent holder is not obliged to grant.

A ban on patents for seeds is difficult for various reasons and could also lead to economic damage. For example, international agreements such as TRIPS (Trade-Related Aspects of Intellectual Property Rights) set the framework for industrial property rights of World Trade Organisation (WTO) member states. Restrictions could also conflict with the EU Biotechnology Directive (98/44/EG), as it is difficult to draw boundaries within biological conditions. Where does a microorganism end and a plant begin? For example, microalgae are plant-like single cells, so they are both microorganisms and plants.

Legal possibilities for changing plant patent protection in Germany, Europe, and international law

Nevertheless, a study was commissioned by the German Bundestag fraction Bündnis 90/Die Grünen (Green Party) to analyze the possibilities of restricting patents on plant traits. The results can be found briefly in English here, and in detail in German here. In January, the Polish EU Council Presidency also proposed that the regulation of genome-edited plants could be made dependent on their patent status: plants with patented traits should be treated like classical GMOs (genetically modified organisms), and only plants without patented traits should be approved like conventional varieties.

Compromise

Since it is legally and economically difficult to prohibit patents on seeds, some stakeholders have developed solution proposals. Licensing platforms should enable all breeders to access a catalog of patented plant traits and acquire usage rights at fair prices. For example, the European seed association Euroseeds has established the platform PINTO (Patent Information and Transparency Online), while other industry representatives have set up the platforms ACLP (Agricultural Crop Licensing Platform, for cereals) and ILP-vegetable (Industrial Licensing Platform Vegetable, for fruits).

WePlanet's position

WePlanet sees the potential of new breeding technologies and supports a quick EU agreement towards a practical use of NGT plants in Europe. WePlanet therefore supports the compromise solution of licensing platforms, which should enable an organized and transparent system for the use of patented plant traits.

Our detailed position with further background information can be found here.