The European Patent Office decided this month that no more patents will be issued for ‘essential biological processes’ in plants. A good development, says Richard Visser, professor of Plant Breeding at Wageningen.
‘I think it’s a good thing the European Patent Office is listening to public criticism of the patenting of plants. That criticism says that patents hold back the development of new crops because the company with the patent can withhold permission to continue improving the plant. As a result, patents primarily benefit big companies. These criticisms are met by ending the patentability of ‘essential biological processes’.
What are essential biological processes? ‘They are processes (such as cross-breeding and selection) and characteristics in a plant that already exist and that we discover and isolate. But that can be interpreted in different ways, because who decides what the essential biological processes are? You could patent the first resistance gene against potato blight, because that hadn’t been done before and was in that sense a new method. It was much harder or even impossible to patent later resistance genes. Time plays an important role in respect to the newness factor. Our knowledge develops fast, so patents have been granted in the past for ‘new’ biological process which we consider very normal nowadays.’
Plant variety rights
The European ruling restores the importance of plant variety rights in the plant breeding sector, says Visser. Under these rights, plant breeders develop new varieties with improved characteristics, and other breeders have the right to use that variety for further breeding. ‘In the old days, it would take you at least 10 years to develop an improved variety, but nowadays – with ever better and faster techniques such as CRISPR/Cas – you can do it in a couple of years,’ says Visser.
This raises the question: How can plant breeders recoup their investments in a new variety? Visser thinks that should be covered by new regulations, such as a mix of patenting and plant variety rights. ‘Breeders of maize have agreed among themselves: we won’t use a competitor’s new variety for further cross-breeding for the first three years. People respect each other’s advantage gained from their development efforts. That increases their chances of recouping their development costs on the market. Another option is for companies to pool their patents in a licensing platform. If a competitor wants to use your patent to continue developing a variety, an arbitration committee sets a market-oriented fair price that then applies to everyone who wants to use that patent.’
This ruling has few consequences for WUR. ‘My research group used to apply for two or three patents per year, and that was seen as knowledge valorization. These days, we don’t apply for patents so often. We think it’s more important that our partners’ investments in research give them enough of an advantage over their competitors in the development of new varieties.’