Europe has one of the most diverse seed industries in the world. In Germany, the Netherlands and France alone, hundreds of small growers are creating new varieties of grains, vegetables and legumes.
They rely on decades of careful selection to improve desirable traits such as yield, disease resistance and taste, and adapt seeds to local environments through methods such as crossbreeding.
This legion of plant breeders help to preserve Europe’s biodiversity and ensure that our food supplies remain plentiful. But their work is increasingly under threat from the patent industry.
Although it is illegal to patent plants in the EU, plants created using technological means are considered a technical innovation and can therefore be patented.
This means that small-scale growers can no longer freely plant or use these seeds for research purposes without paying licensing fees.
There are approximately 1200 seed varieties that can be grown naturally affected by patents across Europe, as agrochemical companies claim to create them through technical innovations.
These patents are granted by the little-known European Patent Office (EPO). It is a body that is completely independent of Brussels and is funded by patent fees from companies. EU member states abide by the Office’s decisions.
European plant breeders must ‘fight against patents’
Frans Carree, a biotech breeder at Dutch company De Bolster, is trying to develop a tomato resistant to the brown rugose fruit virus, which can destroy entire crops. But his efforts are being hampered by more than a dozen patent applications for this resistance from multinationals such as BASF, Bayer and Syngenta.
Although the patents have not yet been granted, they create legal uncertainty and there is a real risk that his investment will not pay off.
To develop his own virus-resistant tomato, Carree would have to read all the patent applications to understand what properties the companies have filed for. However, the patent applications are written in such complicated language that he sometimes has trouble understanding them.
He would then have to ask a lab to sequence all of his plants to make sure the patented trait is not in his varieties, a time-consuming and expensive task.
“It takes so much work to fight patents, I do that in addition to my job. I am a grower, I like to be with my plants,” says Carree.
What are new genomic techniques and can NGT seeds be patented?
In recent years there has been a development of new processing techniques, known as New genomic techniques NGTs allow scientists to be even more surgical in editing the genetics of seeds.
NGTs allow specialists to improve the existing functions of specific genes or add new ones without affecting other parts of the genome. Proponents of NGTs see great potential in them: fewer pesticides and fertilizers, disease- and drought-resistant plants, even corn fields irrigated by the sea are conceivable.
Currently, all plants derived from NGTs are regulated as strictly as genetically modified organisms (GMOs) – these are created by implanting genes from one organism into another.
But given their potential, agrochemical companies and scientists have pressured the EU to deregulate NGTs. In February of this year, the European Parliament voted to deregulate NGTs on the market, with some even being considered equivalent to conventionally bred plants.
The number of patents on seeds could increase with the possible deregulation of NGTs at EU level, a study proposed by the European Commission.
Michael Kock, former head of Intellectual Property at Syngenta, predicts a future where “the majority of new varieties coming to market will be influenced by patents.” To address concerns about increased costs and new dependencies for farmers and breeders, Parliament has also proposed a ban on patents on NGTs.
A final decision on NGTs is not expected soon. Parliament is currently negotiating with member states, many of which, including Austria, France and Hungary, oppose genetic engineering in agriculture in general.
But even if EU heads of member states eventually agree to a patent ban, it could prove ineffective. Martin Häusling, the German Green MEP who co-authors the NGT rules, warns that such a ban would be “worthless.”
This is because the EPO effectively determines what can and cannot be patented in Europe, thereby violating EU law.
What is the European Patent Office and why is it important?
The EPO’s reach extends beyond the 27 EU Member States to 39 Member States, including the United Kingdom, Turkey and Switzerland.
Instead of each EU Member State examining patent applications separately, the EPO – an organisation that calls itself a ‘public service organisation’ – manages the approval of European patents through a centralised process.
The implications of this patent regime are far-reaching. With concentrated corporate control over seeds comes less genetic diversity, as small and medium-sized breeders have less genetic material to work with. This could lead to less resilience during climate disasters and food supply disruptions.
As Europe balances market-driven growth against environmental and food security, the growing number of seed patents poses an existential threat to the continent’s agriculture.
Major loopholes in seed patenting
This story could have ended in 2017. For years, small breeders, farming groups and environmental organizations have been sounding the alarm, as more and more biological material is being privatized through patents.
In response, the European Commission issued a interpretative notice in its 1998 Biotech Directive, which stated that “products obtained by essentially biological processes” cannot be patented.
The EPO followed the Commission’s interpretation and banned patents on conventionally bred plants. This decision was welcomed by breeders and farmers.
But they soon realised that critical loopholes remained. The EPO Administrative Council did not make a clear distinction between naturally occurring gene variants and random mutations on the one hand, and technical interventions generated by genetic engineering on the other.
This could allow companies to use NGT tools to apply for patents on conventionally bred plants, the No Patents on Seeds coalition warns.
“If the patent is granted, patent holders will be able to control access to plants, regardless of whether genetic engineering is used or not,” warns Christoph Then, spokesperson for No Patents on Seeds.
There is already a worrying precedent. In 2022, the EPO a patent granted to the German company KWS for corn with improved digestibility (allowing consumers to absorb more nutrients). According to the patent description, the gene variants were originally found in corn plants from conventional breeding.
This decision enables KWS to to check the production of plants with these genes, whether they are the result of random mutations or genetic engineering, which may prevent other breeders from using them. It was the first patent granted for an application filed after 2017.
Examiners at the EPO assess each patent application and check whether an invention is actually technical, new and inventive and therefore patentable.
The EPO declined to comment on how it ensures that technical methods are not used to reinvent traits that occur in nature. A spokesperson for KWS said that “for legal reasons” it cannot comment on individual patents and that it is “in discussions with No Patents on Seeds”.
A forbidden environment for European plant breeders
Since the changes to the Patent Act in 2017, every claim must explicitly state that the patent does not cover plants produced by biological means. On the other hand, this seemingly protective measure has also created a significant burden for breeders.
If a breeder develops a plant with a similar resistance to a patented variety, the burden is on him to prove that he has not infringed the patent.
Sjoerd Hoekstra, former director of a biotech department at the European Patent Office (EPO) with 33 years of experience, explains: “The breeder has to demonstrate that a certain characteristic has been selected naturally. Then his plant is not affected by the patent. One problem is that legal action can be taken at any time. That can be difficult for small breeders.”
Unlike multinationals, small and medium-sized breeders cannot afford to pay patent lawyers. A lawsuit could mean financial ruin.
Is the European Patent Office granting too many patents?
The EPO is under fire from small breeders, environmental groups, politicians and even industry.
Critics say the EPO has an incentive to grant patents, as its staggering €2.5 billion budget comes entirely from user fees from filing to examination, raising concerns about potential conflicts of interest.
“From the beginning, this was a problematic institution, supposedly running its own business with its own clients,” Then says, “despite the fact that patent law was primarily intended to benefit society as a whole, not just specific groups.”
Even agrochemical companies are criticising the EPO for handing out patents like candy, but in less candid terms.
Filip De Corte, Head of IP Crop Protection at Syngenta, said in a interview with the EPO that “patent quality” was an issue. “We are not asking the Patent Office to grant us patents, we are asking the Patent Office to examine and actually refuse the patents that do not meet the patentability requirements,” he said.
The reason for that? “When we spend so much money – we invest about $1.5 billion (€1.4 billion) a year in discovering and developing new products – we want to be confident that when the European Patent Office tells us we have a valid patent,” he said, adding that Syngenta needs “enforceable patents.”
De Corte even had a message for the EPO examiners: “Be skeptical and be critical.”
This research was developed with the support of:
