Christian Ebner
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No patent protection in Europe for plants obtained by CRISPR and related technologies?

First published 22 February 2024 by Christian Ebner

The Members of the EU Parliament have agreed to adapt the rules for NGT plants (New Genomic Techniques, i.e. plants which have been obtained by genetic engineering tools, such as CRISPR/Cas). In their proposal, the MEPs aim to introduce a complete exclusion from patentability for all NGT plants. The intention behind seems to be to avoid legal uncertainties and dependencies for farmers and breeders.

While this intention is to some extent understandable (a farmer next door should be protected from inappropriate infringement claims), it may not be the right way to go.

Farmers/breeders are in many national patent law systems protected against unjust claims by clear legal limitations of the patent. In Switzerland for example, a patent cannot be enforced against a farmer if the protected biological material crosses into their original plants by coincidence (e.g. pollen carried by the wind). In addition, many national laws provide for a research privilege – or, for example in Switzerland, a specific breeder’s privilege which allows the use of patent protected biological material for the purposes of research and breeding of new varieties. A similar provision exists in the Agreement on the Unified Patent Court, which applies to Unitary Patents in many European countries. Therefore, access for breeders to develop new species is secured. Finally, farmers also benefit from the farmer’s privilege, as it is for example provided in Switzerland. When farmers legally acquire patent protected seeds, they can reproduce the product from material they have grown on their own farm for their own use (i.e. use today’s seed for next year’s harvest).

It is true that farmer’s rights, in particular the rights of small farmers, must be protected against unjust claims of patent infringement. Also research should be allowed to further advance technology. However, this can be achieved through legal exemptions of the patent’s effect.

Banning patents for such NGTs deprives researchers of the ability to protect their inventions and investments from their competitors.
An avocado plant which requires less water and can therefore help to save drinking water in European areas suffering from drought, is not developed in a few days. It requires significant research investments, long trials and safety assays. Companies will be much less inclined to commit their resources to such research programs if they cannot ensure that their investments are protected and competitors cannot act as mere copycats reaping their investment. Also European biotech start-ups developing such technologies will find it difficult to convince investors if their technology can simply be copied by larger players in the field.
A balance therefore needs to be struck between the understandable concerns of farmers and the interests of biotech research companies.


Picture by Eddie Pipocas via Unsplash

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