• Laboratory at KWS
    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 has been intensively debated in Europe for more than a decade, however, the legal situation has still not been sufficiently clarified.

KWS employee at the laboratory

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. At present, proceedings are pending. The Enlarged Board of Appeal of the European Patent Office must clarify whether the current rule excluding native traits from patentability in Europe (Rule 28 of the European Patent Convention) remains valid. However, a decision is not expected before mid/end of this year. Any decision could lead to further prolonged legal uncertainty. Meanwhile KWS follows the respective intellectual property systems in order to avoid competitive disadvantages.

KWS’ position on future patentability of plants

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. 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. Fair access to patented traits must be guaranteed.

Collaborating toward solutions

In order to realize this position, KWS sees one solution in the establishment of an industry-wide licensing platform that is open to all. Such a platform would ensure guaranteed access to technologies and products at fair conditions. 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 seeks open and transparent dialogue on this important topic. The company also looks forward to a positive clarification from policy makers and the European Patent Office that serves society’s needs for sustainable agriculture and improved crops.

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Stephan Krings
Stephan Krings
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