A silent battle is being waged for control of seeds, the very foundation of our food supply.
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Europe has one of the most diverse seed industries in the world: in Germany, the Netherlands and France alone, hundreds of small breeders are creating new varieties of cereals, vegetables and legumes.
They rely on decades of careful selection to improve desirable traits like yield, disease resistance and flavor, and adapt seeds to local environments through methods such as hybridization.
Legions of plant breeders help maintain Europe's biodiversity and ensure our food supply is plentiful, but their work is under threat from the patent industry.
It is illegal to patent plants in the EU, but anything made by technical means can be patented as it is classified as an innovation.
This means that small breeders will no longer be able to freely plant these seeds or use them for research purposes without paying a license fee.
Around 1,200 naturally hybridising seed varieties are subject to patents across Europe because agrochemical companies claim they have created them through technological innovation.
What many don't know is that the agency that grants these patents is the European Patent Office (EPO), which is totally independent from Brussels, funded by companies' patent royalties, and whose decisions are subject to EU member states.
European plant breeders forced to 'fight patents'
Frans Carré, an organic plant breeder at the Dutch company De Bolster, is working to develop a tomato plant that is resistant to the brown wrinkled fruit virus, which can ruin an entire crop, but his efforts are hampered by more than 10 patent applications for this resistance from multinational companies such as BASF, Bayer and Syngenta.
The patent has yet to be granted, but that creates legal uncertainty and a real risk that his investment will not pay off.
To develop his own virus-resistant tomato, Carey has to read all the patent applications to understand what traits companies have patented, but they are written in highly complex language that can be difficult to understand.
They then have to get a lab to sequence all of their plants to ensure that the patented trait is not in their varieties, a time-consuming and expensive task.
“I do it on the side because fighting patents is a lot of work, and I'm a breeder so I love being with plants,” Carey says.
What is new genomic technology? Can NGT seeds be patented?
In recent years, the development of new editing techniques known as new genomics technologies (NGT) have allowed scientists to edit seeds' genes with even greater precision.
NGT allows experts to improve the existing function of a particular gene or add a new function without affecting the rest of the genome. Proponents of NGT see great potential: reduced use of pesticides and fertilizers, disease- and drought-resistant plants, and even grain fields irrigated with seawater.
Currently, all plants derived from the NGT are heavily regulated, just like genetically modified organisms (GMOs), which are created by inserting genes from one organism into another.
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However, given this possibility, agrochemical companies and scientists have been calling on the EU to deregulate NGTs. In February of this year, the European Parliament passed a resolution to deregulate NGTs in the market, even allowing some NGTs to be considered equivalent to conventionally grown plants.
A European Commission study suggests that further deregulation of the NGT at EU level could lead to an increase in the number of seed patents.
Michael Koch, a former head of intellectual property at Syngenta, sees a future where “the vast majority of new varieties entering the market will be subject to patents.” Addressing concerns about rising costs and new dependencies for farmers and breeders, Congress has also proposed banning patents on NGTs.
A final decision on the NGT is not expected anytime soon. Parliament is currently negotiating with member states, many of which, including Austria, France and Hungary, are opposed to genetic engineering in agriculture in general.
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But even if EU leaders ultimately agree to a patent ban, it may be ineffective: Martin Hausring, a MEP from Germany's Green Party who co-led the NGT regulation, warned that such a ban would “be worthless.”
That's because the European Patent Office has the actual say on what can and can't be patented across Europe, and it doesn't follow EU law.
What is the European Patent Office and why is it important?
The EPO's jurisdiction extends beyond the 27 EU member states to 39 countries, including the UK, Turkey and Switzerland.
Instead of each EU member state examining patent applications individually, the EPO, a self-described “public service authority,” manages the granting of European patents through a centralized process.
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The impact of this patent system is far-reaching: concentrated corporate control over seeds means less genetic material available to small and medium-sized breeders, reducing genetic diversity. This could lead to reduced resilience in the event of climate disasters or disruptions to food supplies.
As Europe balances market-driven growth with environmental and food security, the rise of seed patents poses an existential threat to the continent's agriculture.
Important loopholes in seed patents
This story could have ended in 2017. For years, small breeders, agricultural groups and environmentalists have been sounding the alarm that biological materials are increasingly being privatized through patents.
In response, the European Commission issued a notice of interpretation on the 1998 Biotechnology Directive in 2017, stating that “products obtained by essentially biological processes” cannot be patented.
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The European Patent Office followed the European Commission's interpretation and banned patents on conventionally bred plants, a decision welcomed by plant breeders and farmers.
But they soon realised that a crucial loophole remained: the EPO's Administrative Council had not clearly distinguished between naturally occurring genetic variations and random mutations, on the one hand, and technical interventions produced by genetic engineering, on the other.
This would allow companies to use the NGT tool to apply for patents on conventionally bred plants, the No Patents on Seeds coalition warned.
“If a patent is granted, it gives the patent holder control over access to the plant, regardless of whether it has been genetically engineered or not,” warns Christoph Teng, spokesman for No Patents on Seeds.
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There is already a troubling precedent: In 2022, the European Patent Office granted the German company KWS a patent for corn with improved digestibility (allowing consumers to absorb more nutrients). According to the patent description, the genetic mutation was originally discovered in a corn plant bred through conventional breeding.
The decision gives KWS control over the production of plants that carry these genes, whether they are the result of random mutations or genetic engineering, and may prevent other breeders from using them. This was the first patent granted on an application filed since 2017.
EPO examiners evaluate each patent application to see whether the invention is truly technical, novel and inventive, and therefore patentable.
The EPO declined to comment on how it ensures that technical methods are not used to reinvent traits that exist in nature. A KWS spokesman said it could not comment on individual patents “for legal reasons” and was “in discussions with No Patents on Seeds.”
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Tough environment for European plant breeders
Since the 2017 amendment to the Patent Law, patent claims must state that plants produced by biological means are not patentable. However, this seemingly protective measure also places a heavy burden on plant breeders.
If a breeder develops a plant with similar resistance to a patented variety, the burden is on the breeder to prove that he is not infringing the patent.
Sjord Hoekstra, former director of the biotechnology department at the European Patent Office (EPO) with 33 years of experience, explains: “Breeders have to prove that a particular trait has been naturally selected, so the plant is not affected by the patent. The problem is that legal action can be taken at any time, which can be difficult for small breeders.”
Unlike multinational corporations, small and medium-sized breeders cannot afford to pay patent lawyers: litigation could mean financial ruin.
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Is the European Patent Office granting too many patents?
The EPO has come under fire from small breeders, environmental groups, politicians and even industry.
Critics point out that the EPO's enormous budget of 2.5 billion euros comes entirely from user fees, from application to examination, giving the agency an incentive to grant patents, raising concerns about a potential conflict of interest.
“From the beginning, this was a problematic institution. It was, so to speak, running its own business with its own clientele,” Zeng said. “Even though patent law was originally meant to benefit society as a whole, not just certain groups.”
Even agrochemical companies have criticised the EPO in less than blunt terms, saying it hands out patents like candy.
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In an interview with the EPO, Philippe de Corte, head of intellectual property and crop protection at Syngenta, said it was a matter of “patent quality.” “We're not asking the patent office to grant patents, but to review and actually reject patents that don't meet the patentability requirements,” he said.
The reason? “We have so much money to spend – about $1.5 billion (1.4 billion euros) every year on discovering and developing new products – that when the European Patent Office tells us we have valid patents, we want to be able to rely on that,” he said, adding that Syngenta needs “enforceable patents.”
De Corte even sent a message to EPO examiners: “Be skeptical and critical.”
This research was supported by:
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