Safeguard traditional plant breeding rights, say MEPs

A ban on the patenting of products obtained by conventional breeding techniques, such as crossing, is essential to sustain innovation, food security and small businesses, says a non-legislative resolution voted by the European Parliament on 17 December.

MEPs, surprised by the European Patent Office decision to allow patents on such products, have called on the EU Commission to clarify existing EU rules as a matter of urgency and protect plant breeders’ access to biological material.

MEPs noted that plant breeding is an innovative process practised by farmers and farming communities since the birth of agriculture. They argued that access to biological plant material is vital to encourage innovation and the development of new varieties to ensure global food security, tackle climate change and to prevent monopolies. Products obtained from essentially biological processes, such as plants, seeds, native traits or genes, should therefore be excluded from patentability, they insist, in a resolution approved by 413 votes to 86, with 28 abstentions

Parliament called on the Commission to clarify existing EU rules - particularly the EU's Biotech directive – as a matter of urgency and to forward this clarification to the European Parent Office (EPO), so as to ensure that products obtained by conventional breeding cannot be patented. MEPs also insist that the EU and its member states must safeguard access to and use of material obtained from essentially biological processes for plant breeding. 

The resolution responds to the 25 March 2015 decision by  the EPO's Enlarged Board of Appeal to allow patents on a tomato (G0002/12) and broccoli (G0002/13) obtained by conventional breeding techniques. The EPO claims that even though essentially biological processes for the production of plants, such as crossing, cannot be patented, the resulting plants or plant material, such as a fruit, may get EU-wide protection.

But MEPs are worried that such a narrow interpretation of current EU rules could have a negative impact on EU's competitiveness and lead to creation of monopolies on the food market. Parliament called on the EPO to exclude from patenting all products derived from conventional breeding already in its non-legislative resolution of 10 May 2012.

Plants for Europe owner Graham Spencer said the ruling would apply to all plants, including ornamentals.

He clarified that the patents that are now being granted apply to variety traits (characteristics), not to varieties themselves, adding: "This is a critical distinction between PVR (which apply to varieties) and patents."

Spencer said, for  example, if he develops the world’s first blue daffodil, as it currently stands, he has two options:

Take out Plant Variety Rights. The PVR applies to the particular blue daffodil variety that I have developed. A competitor breeder can now exploit the breeder’s exemption within PVR law and develop further blue daffodil varieties by breeding from my variety (provided that they are sufficiently distinct as to not be considered Essentially Derived Varieties [EDV]) or by reproducing the breeding process I followed (which circumvents the EDV rules). Within a very short period of time, my new variety is subject to competition, even though I invested many years and many resources in developing my new blue daffodil. Conversely, I don’t have a monopoly, so other breeders can improve on my blue daffodil by developing new varieties and aid the consumer by creating competition in the market.

Take a Patent in the blue petal colour trait in daffodil, even though it is the product of a natural biological process. This would give me a monopoly position and prevent anyone else from developing a daffodil with a blue petal colour, even if they did so independently. This would provide me with a good opportunity to commercially exploit my new variety and recoup my significant investment (an incentive to innovate) but would prevent anyone else from developing a competitor or improved variety (stifles the market; stifles innovation). There is currently no obligation on a patent holder to licence his patent to any other party. Also: patents are very expensive for the independent breeder, so they can’t get this level of protection for their own new developments.

Spencer added: "So there are arguments for and against the use of patents. As it is, the deep-pocketed breeding companies (mainly in agricultural crops) are applying for large numbers of patents. They are beyond the budget of many smaller firms and independents. Additionally, these patents may prevent other breeders from developing new varieties if they possess a trait that is owned by a third party."

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