Intellectual Property

KWS position on the patentability of plants

In plant breeding, intellectual property systems encourage the development of new varieties for the benefit of society. There are two Intellectual Property systems in place: Plant Variety Protection and Patent law. Both systems complement each other and are applied in parallel by KWS. The patentability of so-called native traits had been intensively debated in Europe for more than a decade, and the legal situation has not been sufficiently clarified. In May 2020, the Enlarged Board of Appeal of the European Patent Office (EPO) finally concluded that plants exclusively obtained by essentially biological processes are not patentable.

Background to the debate:

Certain characteristics of plants (traits) can be patented in many territories worldwide – especially if they have been developed or produced by technical means. In contrast to that, native traits are characteristics that occur naturally in plants and are incorporated into new varieties using essentially biological processes such as crossing and selection (conventional breeding). The question of patentability of native traits has remained unresolved in Europe for more than ten years. The Enlarged Board of Appeal of the European Patent Office has clarified this issue: On May 14, 2020 it issued a legal opinion requested by the President of the EPO, concluding that plants obtained by essentially biological processes are not patentable.

With that, the EBA reversed its previous “Tomato/Brokkoli II” decisions and confirmed the application of the new Rule 28 (2) of the European Patent Convention exempting such native traits from patentability. Furthermore, the EBA stated that its new interpretation does not apply to claims granted or pending before 1 July 2017, the date of entrance into force of Rule 28 (2).

KWS’ position on future patentability of plants

KWS clearly welcomes the decision by the Enlarged Board of Appeal of the European Patent Office and implements its patents in Europe in full in accordance with Rule 28. Granted KWS patents in Europe contain a disclaimer that excludes conventionally bred plants from patent protection. This is in line with KWS' long-standing position, which advocates a regulation to this effect that ensures further breeding progress and diversity.

The possibility of patenting technological inventions in plant breeding is important because it enables long-term and cost-intensive research projects – plus it incentivizes their financing. Ideally, Patent protection should not extend to native traits, because the man-made inventiveness feature is lacking.

In order to breed new varieties with better characteristics, breeders need the greatest possible diversity of genetic source materials. Under the Plant Variety Protection system, genetic diversity of innovative new commercial varieties is freely available through the Breeders’ Exemption. In most countries, however, when a variety that is protected under the Plant Variety protection system also contains a Patented trait, then the Breeder’s Exemption is blocked during the duration of the patent. Accordingly, KWS stands up for regulating IP rights in ways to that ensure that further breeding progress and diversity are safeguarded, as with the Breeder’s Exemption. Farmers benefit from innovations in plant breeding that enable the development of new varieties that are, for example, adapted to climatic changes and still ensure continuously high yields. At the same time, Patents should not be used to create monopolies; they should be used to encourage sustainable innovation for the benefit of society.

Collaborating toward solutions

In order to realize this position, KWS sees one solution in the establishment of an industry-wide licensing platform approach that is open to all for those traits which have been developed or produced by technical means and will remain patentable because of their man-made inventiveness.

It is important to create a common understanding within the plant breeding sector and an approach that can be communicated clearly and easily to all – farmers, the value chain, consumers, and the public.

KWS therefore pursues proactive licensing offers such as KWS "TraitWay", its own catalog of available plant traits (native traits), backed by a simple and standardized process for issuing licenses. KWS is also a member of the International Licensing Platform Vegetable (ILP) and a key driver of the Agricultural Crop Licensing Platform (ACLP), which is scheduled to come into force at the beginning of 2023.