Expectations
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.
Reality
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.
Consequences
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.
Further information:
Patent report
No Patents on Seeds (2021): Patent report