No Patent on Seeds

In 2016, the European Commission released a statement to underline that life – specifically conventionally-bred (i.e. non-GMO) plants and animals as well as the conventional breeding techniques themselves (such as crossing) – are not patentable under EU. This statement was made to remind the European Patent Organization (EPOrg) of the current EU ban on patenting life, since the EPOrg started to violate this law and granted about 80 patents on conventional plants in recent years (e.g. three patents on barley). This became possible as the EPOrg interpreted current patent legislation in favour of corporations that used cunning formulations to exploit loopholes in the law. As part of the international alliance “No Patents on Seeds!”, ARCHE NOAH demonstrated great commitment to obtain the statement of the Commission, which we thus celebrated as a great success. The Commission’s clear position was a significant step towards the goal of banning patents on plants and animals.

Furthermore, the Commission called on the EPOrg to adapt its Implementation Regulations to prevent further violations of EU law. However, the EPOrg was not bound by this statement, as it is an independent organisation sitting outside the EU (it has 38 Contracting States).

On the 28^th and 29^th of June 2017, the Administrative Board of the EPOrg – consisting of representatives of its 38 Contracting States – met to decide on changes to the Implementation Regulations. At this meeting, the members agreed on a proposal put forward by the European Patent Office (EPO). This proposal inserted new text into the Implementation Regulations limiting the patentability of plants and animals obtained exclusively by essentially biological breeding processes. However, it failed to address significant loopholes in the Regulations, which means the EPO will be able to continue granting patents on life.

In the run-up to the decision of the Administrative Board, ARCHE NOAH strongly engaged in highlighting the legal loopholes and the negative consequences of patenting plants and seeds for consumers, farmers, small seed producers and, of course, diversity. The success of our work became obvious, as Austria was the only country rejecting the EPO’s inadequate proposal. Yet as one dissenting vote is not enough to change the resolution, the decision of the Administrative Board has now green light to the continued improper granting of patents on conventionally bred plants and animals.

However, Austria’s vote sent an important political signal to the EPO and the other Contracting States that further measures are necessary to put an end to patents on life and to bring the EPO’s practice in line with EU law. Austria thereby represented the interests of civil society and not the wishes of industries and the EPOrg, who are the only ones to profit from the privatisation of our nature. We feel reinforced in our work through Austria’s position and will continue to enlarge the political will to defy improper patent decisions on plants and animals.

Since 2023, there has been an additional layer in the European patent law system: The European Unitary Patent, which applies in 17 EU member states, has come into force. You can find a factsheet on this in the download section below.

A change to the Austrian Patent Law in 2016 was a big success at the national level, as it confirmed in legislation that conventionally bred plants and animals are not patentable. This was an important first step! However, to protect (as far as possible at national level) farmers and breeders from the patents on life granted by the EPO, it was necessary to further strengthen the national provisions. This was achieved in 2023: A stricter Patent Law entered into force, meaning that Austria became Europe’s pioneer in creating provisions that close the legal loopholes and achieve the intention of EU law: to stop patents on life.

The EPO missed its chance at the end of June 2017 to enforce precise and effective definitions in the Implementation Regulations. Instead of agreeing on real change, the EPO ensured that granting patents on plants and seed will still be possible in the future. Our work and commitment is thus required on both national and international level to break down the non-transparent, undemocratic and self-serving structures and conventions of the EPO.

Since 2023, there has been an additional layer in the European patent law system: The European Unitary Patent, which applies in 17 EU member states, has come into force. You can find a factsheet on this in the download section below.

In the past, the European Patent Office (EPOrg) already granted about 80 patents on conventional plants, obtained by conventional breeding techniques. EU-law forbids this actually and only allows patents on genetically modified organisms (GMOs). But the EPOrg is an independent organisation that sits outside of the EU structures, and has not faced any consequences for its improper practices yet.

ARCHE NOAH is part of the international alliance “No Patents on Seeds!”. Over 300 NGOs and farmers’ organisations have joined forces to change this absurd patent policy and ensure a functional patent law in Europe. Thereby, “No patents on Seeds!” has to compete with big players from the industry, such as Monsanto, Syngenta, or Carlsberg and Heineken. Those companies already hold huge market shares but nevertheless invest in expensive patent applications, since they require patents to reach their ultimate goal of a monopoly position on the market.

We need a real solution at European level that unequivocally outlaws patents on conventionally bred plants and animals without leaving any loopholes, no matter how much money companies are willing to pay to push their interests.

ARCHE NOAH will continue to fight for such a change!

A patent is a commercial property right, thus it creates a monopoly on intellectual products and processes. Products and processes are considered as patentable if they fulfil the following criteria: novelty, inventiveness and industrial applicability. When a patent is granted, the holder of the patent owns the right to exclude others from the reproduction, utilisation, sale and distribution of the invention for 20 years. Yet they may grant others the utilisation of the invention with their consent, usually in exchange for the payment of license fees. In recent years, patents have increasingly been used in plant innovation, even though there is an existing system to protect research and investment in breeding (the plant variety system). Growers who wish to use patented seeds for the development of new varieties cannot do this without asking – there is no “breeder’s privilege” in patent law (in contrast to the plant variety system). With certain restrictions, farmers in Austria are, however, allowed to reproduce and use crops in their own agricultural holdings. This is not the case in all EU Member States.

The European Patent (EP) is a bundle of national patents. It is granted by the European Patent Office (EPO) on the legal basis of the European Patent Convention (EPC). The EPC is a multilateral agreement between 38 States: all EU member states as well as Norway, Iceland, Switzerland, Liechtenstein, San Marino, Turkey, Macedonia, Albania and Serbia are amongst them. The core of the EPC is the establishment of a unified and central patent granting procedure. When applying for a patent at the EPO, the applicant has to name the signatories where the protection is asked for. The indication “European Patent” might be misleading here, as no unified European patent is generated by the granting of a patent by the EPO but only a bundle of national patents. This means that their impact and enforcement in patent infringement proceedings is still subject to national statutory provisions and jurisdictions.

Since 2023, there has been an additional layer in the European patent law system: The European Unitary Patent, which applies in 17 EU member states, has come into force. You can find a factsheet on this in the download section below.

According to the European Patent Convention (EPC), patents on conventionally bred plants are predominantly prohibited in Europe: Article 53(b) of the EPC states that European patents may not be granted for “plant or animal varieties or essentially biological processes for the production of plants or animals”. New interpretations of the EPC have nevertheless allowed for such patents. In 1999, following to the adoption of the so-called EU Biotech Directive 98/44/EC, the European Patent Office (EPO) has included a rule in the regulations of the EPC which allows patents if they are not technically restricted to one variety but can be applied to a multitude of varieties. (In this regard, the Austrian Patent Act follows the text of the EPC.)

In March 2015 the Enlarged Board of Appeal of the EPO came to the conflicting decision that procedures of conventional breeding may not be patented but that plants (and animals) originating from such breeding efforts may be patented nevertheless. In June 2017, the Administrative Council of the EPO amended the Implementing Regulations to the EPC to state that “plants or animals obtained exclusively from essentially biological processes” are excluded from patentability. While this is positive in principle, there remains significant loopholes in the Implementing Regulation that mean, in practice, the EPO will be able to continue granting patents on plants. For example, random mutations in plants and single plants cells are still considered by the EPO to be patentable.

The impediment of innovations in plant breeding through patents as well as the subsequent monopolisation of the seed market both put a lot of pressure on crop diversity. The consequence is an increasing depletion of diversity (or “more of the same”). If a small number of seed corporations decide which patented variations are grown and thus available on the market, the freedom of choice of breeders, farmers, food producers and consumers will be limited drastically. Therefore, the decline of crop and biodiversity not only endangers the sustainability of eco- and agro-systems, but presents a serious threat to global food security and regional food sovereignty.

The diversity of cultivated and wild plants is the starting point for all conventional breeding and thus for the development of new varieties. When patents are granted on conventional plants and seeds, they massively restrict the breeders’ access to crop diversity as they may not be able to use the patented seeds for free, but at most after conclusion of a contract and against payment of license fees. This presents an obstacle for innovation as well as competition. Furthermore, patents support the concentration of the seed market to a few companies, as in general only big corporations have the financial means to file for patents and enforce the property rights stemming from such titles. Small and medium-sized seed companies are thus excluded from competition and may finally be forced out of the market. Furthermore, there is no information on patents on seeds packages, and if one tries to make its own research, patents are very complicated to read and understand. Thus, there is not enough transparency on the property rights that may apply to seeds. This leads to huge legal uncertainty for breeders and in the worst case even high costs due to unintentional patent infringement.

The situation is similarly problematic for farmers, as unintentional patent infringement can cause big financial burden. There is not enough transparency on the exclusive rights that may cover a plant variety (either patent or variety protection). Furthermore, the danger of genetic contamination of conventional plants by plants with patented characteristics, caused by natural pollination, is significant. In this case, patent claims in Austria as well as in most European countries cannot be asserted according to patent law, since there is a lack of regulatory clarity.

To patent a single variety is forbidden by EU law, yet companies found the following loophole: they claim patents on specific characteristics of plants, rather than a specific variety. This means patents on plants have a shockingly large scope: a patent on a characteristic ensures its holder the right on every plant which showing this characteristic. A single patent can therefore capture multiple plants and even species. If certain characteristics of an old variety which are interesting for a company are patented in accordance with the requirements for the granting procedure, all old varieties which feature the patented characteristics will fall into the scope of the relevant patent. In short, this means that without exception any variety can be affected by patents.

According to the European Patent Office (EPO), 1,960 European patents on transgenic plants have been granted, while 6,750 have been applied for since the foundation of the EPO up until November 2015. At the moment, around 80 patents on plants of conventional breeding have already been granted in Europe. For some months, the EPO had to pause their patent grants due to the political debate on patents on life. However, following the adoption of changes to the Implementing Regulations by the Administrative Council of the European Patent Organisation that fail to close all loophole, the EPO will be able to continue granting patents on plants from 1 July 2017.

To stop the patenting of conventionally bred plants and animals, all procedures, breeding material and products used or produced by conventional breeders need to be classified as not patentable. This requires more detailed definitions in patents law. The changes to the Implementing Regulations agreed by the European Patent Organisation in June 2017 failed to provide this legal detail, meaning it will remain possible to circumvent the patent prohibition. Further legal provisions are also necessary to prevent patents granted on genetically modified plants (GMOs) from also capture natural and conventionally bred plants that also contain the patented characteristics.