Monopolising breeding by patenting biodiversity
In Europe, the breeders’ privilege guarantees free access to biodiversity and freedom to breed under the plant variety protection system. In plant breeding, this privilege allows the use of all existing plant varieties to breed new varieties. Breeders select plants both on the basis of breeding characteristics (phenotype) and genetic characteristics (marker-assisted selection). Free access to natural genetic resources is therefore essential in conventional breeding. However, applications of new genetic engineering (new GE or new genomic techniques, NGT) in plant breeding also rely on access to natural genetic diversity, which is needed for the 'programming' of, for example, the CRISPR/Cas gene scissors. This applies to both the target sites in the genome of the plants and the insertion of additional gene variants originating, for example, from other plants.
In some patent applications filed by Syngenta thousands of gene variants are claimed for the breeding of arable plants such as soybeans, to strengthen plant resistance to diseases. In most cases, the respective gene variants were discovered in wild relatives of the bred varieties. The scope of these patents also covers the use of these gene variants in the context of conventional breeding.
Such patent applications result in considerable legal uncertainties for conventional breeders. It may be almost impossible to find out, for example, whether a particular soybean plant with increased resistance to Asian soybean rust carries in its genome some of the approximately 5.000 gene variants listed in the Syngenta patent application, WO2021154632. If these patents are granted, breeders will no longer be able to use all conventionally-bred varieties for further breeding. They cannot even switch to wild relatives for breeding, as any use of the gene variants for breeding purposes falls under the scope of the patents. As a result, this practice creates an impenetrable patent thicket for breeders.
Patents are being used to create a monopoly on the economic exploitation of the claimed 'inventions'. If patents are granted on specific genetic variants, all other breeders can be excluded from using them for the production and marketing of new varieties, or made dependent on patent holders through licensing agreements. The application of new genetic engineering makes genetic resources patentable, thus making them a major driver of this development. If patents are granted on specific gene variants and their use, this can also hinder or block conventional breeders.
In regard to current patent law, it must be made clear that only technical processes can be patented, but not conventional breeding or adventitious genetic modifications.
Patents on NGTs create new dependencies for breeders
Lower costs and ease of use of NGTs will facilitate the development of new products, especially for small to medium-sized companies and public research organisations. One of the most frequently heard arguments in the debate on EU NGT regulation is that it will increase the competitiveness of small to medium-sized companies in relation to large corporations.
NGT methods can be patented in exactly the same way as the resulting NGT plants, animals and microorganisms. In addition to the 'inventors' of the CRISPR/Cas technology (such as the University of California and the Broad Institute), the large agricultural companies are particularly dominant in this field. Corteva (the former agricultural division of DowDuPont) is outstanding in respect to the number of patent applications it has filed and the number of patents it has been assigned. The US-based company has already applied for around 100 patents, which, if granted, will also be legally effective in Europe. Corteva held around 30 such patents in Europe at the end of 2022 - more than any other company in this sector. In addition to its own patent applications, Corteva has also secured access to dozens of basic patents on CRISPR/Cas technology. Other large corporations, such as Bayer, BASF and Syngenta (Sinochem), are also applying for more and more patents to cover new genetic engineering applications.
As a consequence, many small and medium-sized European breeding companies may have to sign contracts with these large corporations if they want access to the new technologies. This will create new dependencies, as they will be obliged to pay licence fees, adhere to corporate guidelines, comply with confidentiality agreements and, if required, disclose their breeding objectives. Large corporations will have far-reaching control over their competitors and will further expand their dominant market position.
The biotech industry is campaigning in the EU to abolish mandatory risk assessment and labelling requirements for plants obtained from new genetic engineering. At the same time, they are filing more and more patent applications for NGT plants, while also trying to extend patent claims to cover conventional breeding. The argumentation that accelerated authorisation of NGT plants will also strengthen small and medium-sized plant breeding companies is generally incorrect. Instead, this will result in disruptive processes and further concentrate the market power of large corporations. Plant breeding and agriculture could lose out to the over-patenting of seeds and the deregulation of NGTs, as could food producers and consumers. In practice, this will create a situation as follows: those who grow NGT plants will ‘reap’ patents.