b'THE IP PUZZLE OF NGTS IN EUROPE: UNLOCKING INNOVATION, ACCESS AND FAIR PLAYFACTS ON HOW PATENTS AND PLANT VARIETY PROTECTION CAN CO-EXIST IN A FUNCTIONAL SYSTEMBY: HERV MONCONDUITS ince the publication by the Europeanwill become a granted patent is, however, Commission of the Proposal forfar from true. As reported in the CLE a Regulation on plants obtainedstudy, not everything is patentable, and by certain New Genomic Techniquesthere are exceptions to patentability.(NGTs) in July 2023 (the Proposal), theIn the field of plants, one exception EU institutions have engaged in demo- which has always existed is the exclusion cratic political debate, involving both theof essentially biological processes to pro-European Parliament and the Council ofduce plants (or animals). This exclusion is the EU. Even though the intention of theenshrined in the World Trade Organization Commissions Proposal was to address the(WTO) agreement on Trade related aspects regulatory status determination of plantsof IP rights, TRIPS. The European Patent obtained by NGTs, the topic of intellectualOffice (EPO) includes it in its Article property (IP) entered the scene through53(b). This exclusion is expressly directed the backdoor and has dominated almosttowards avoiding that conventional breed-all debates. Political debates on IP are alsoing methods, consisting essentially in cross-echoed in the seed sector and Seed Worlding of plants and selecting the ones bearing Europe reported several times on the diver- useful characteristics, be protected by pat-sity of positions. ents, because these methods are deemed In an attempt to shed light on thenot technical and the traits selected would various claims made about IP and NGTs,be native. The EPOs Enlarged Board of CropLife Europe (CLE) contracted inde- Appeal has even clarified that the use of pendent experts to compile factual datagenetic markers in the selection process from publicly available sources helpingHerv Monconduit is the Head of Patents,does not make an essentially biological understand what patents actually are andBayer SAS, France, European and French patentprocess patentable. More recently, in July attorney, and Chair of the IP expert group of do, and whether the concerns are justified.CropLife International. 2017, the EPO has also excluded the plants This article summarises the results of theirobtained by such essentially biological pro-findings (CLE Study) 1 . cesses, i.e. plants that would essentially con-tain native traits.COULD PLANT VARIETYvarieties would not be protected by the PVPThe main criterion for an invention PROTECTION BE SUFFICIENT TOon the initial variety. being considered patentable subject-mat-PROTECT NGT TRAITS? The only IP tool available to protectter is that it has been obtained by technical The CLE study reveals that Plant Varietya technically created element of a plant,means. Plant traits obtained by technical Protection (PVP) rights in the frame oflike an NGT trait, is the patent. PVP andmeans such as random or targeted mutagen-the UPOV Convention are effectively thepatents are therefore complementary - notesis techniques (e.g. NGT) can be con-tool adapted to protect new plant varietiesmutually exclusive - because they have asidered patentable and enter the field of in Europe.different scope and protect different typesinventions for which a patent may possibly This does not mean that all plantof innovation, and plant breeders will eitherbe granted.breeding innovations can be protected byuse one or the other, or both, depending onIt is however not because a patent PVP. For example, a plant trait developedthe type and nature of R&D they invest in.application can be filed for a technical through NGT is not protected under PVP,invention that this invention will satisfy which only covers the variety as a whole, notWOULD THE NUMBERthe criteria for obtaining a granted patent.individual traits. Once the PVP protectedOF PATENTS INCREASEThe first criterion is that of Novelty. variety is commercialised, every breederDRAMATICALLY WITH NGT? Nothing that was already known or existing can use it in their breeding programs toSome stakeholders are worried that therecan be patented. Regarding plant traits, a integrate certain traits of that variety intowill be a huge wave of patents rolling overspecific mutation in a gene responsible for a their own ones and create new varieties con- the European market with NGTs. Thecertain trait may not satisfy the Novelty cri-taining the NGT trait. Those derived newassumption that every patent applied forterion if that mutation was already known1 Data on file from a study performed by Altius law firm, De Clercq & Partners IP law firm and Acutifolius Consultancy Firm are available upon request to CLE (croplife@croplifeeurope.eu)26ISEED WORLD EUROPEISEEDWORLD.COM/EUROPE | MAY 2025'