The intersection between plant sciences and intellectual property (IP) rights (patents and plant variety rights) has been a thorny area for a number of years, particularly in Europe with respect to genetically-modified (GM) plants. However, growing populations and climate change have been strong drivers for innovation in agriculture to ensure the food supply chain is robust to the challenges faced by this industry (and planet). There is an expectation that productivity and quality will increase but also pressure for this to be achieved sustainably and cost-effectively. While it is inarguable that innovation will be critical to meeting these demands, and biotechnology represents an area with the potential to generate solutions rapidly, there are differing views on how to foster and reward innovation in an industry that is critical to everyone’s well-being.
There has always been a need to balance systems to promote innovation with the needs of end users of innovative products. The patent system exists to promote and spread innovation to the benefit of the public. However, when it comes to innovations in plant sciences, the route (root?) to secure protection in Europe has been rather tangled.
The broccoli battles (G2/07, G2/13) and tomato tussles (G1/08, G2/12) at the European Patent Office (EPO) shaped the plant patent landscape in Europe in the first two decades of the century, before the 2020 decision on peppers (G3/19) ploughed a metaphorical furrow that more clearly delineated the scene. While these pivotal decisions created uncertainty for a number of years, the law in Europe now feels more settled and the EPO’s Guidelines for Examination provide detailed examples that help applicants to navigate this complex area of law.
It was therefore disheartening to many when, in February 2024, the European Parliament proposed to amend the European Commission’s proposed Regulation on plants obtained by new genomic techniques (NGTs) to include a full ban on patents for plants generated using NGTs. The primary objective of the new Regulation is to align the EU regulatory landscape with the recent technological developments in plant breeding. Whilst it is important to evaluate the full reach of the Regulation across different industries, the Parliament’s proposal to interfere radically with now established patent law was unwelcome for many and, understandably, disagreements between member states on this issue blossomed.
Following a prolonged deadlock between member states, the European Council circulated a revised proposal that received majority support in March 2025. In a welcome development, the proposals on patent bans have been pruned. Specifically, the revised proposal advocates transparency with respect to patents, requiring that patent information relating to NGT plants be listed in a publicly available database maintained by the European Commission. Thus, under the revised proposals patent protection would remain possible for NGT plants. Although the proposed database registration represents a further burden for innovators in this field, it may be an acceptable compromise to ensure that some protection for innovations is retained in an increasingly competitive industry.
The “trialogue” between the European Council, Commission and Parliament will continue over the coming months, with the finalization and implementation of the NGT Regulation coming only when the Council and Parliament reach a majority agreement. Thus, as negotiations continue, we can hope that positions from all areas will be represented. In this respect, the impact on IP rights is just one factor that must be considered in this complex area and, even within IP law, there are many aspects that need to be evaluated. The recent position paper from AIPPI (the International Association for the Protection of Intellectual Property) provides an illuminating and balanced discussion of the key issues in play; hopefully it will help to inform those taking part in the negotiations.
Thus, whether you are bananas about biotech or cucumber cool about the impacts of GM plants entering the food chain, the Regulation is likely to lead to changes across the industry, irrespective of the final position on patents. In the meantime one thing is clear – uncertainty can be a huge drag on innovation and the sooner we have certitude about the reaches of this Regulation, the sooner researchers and investors will have the confidence to proceed with the commercialisation of these vital innovations. I, for one, am hoping for a prolonged period of re-growth (one plant pun too many?)
We will be keeping a keen eye on developments in this area.