The patentability of genetically modified gene-edited crops has become the hot potato that member states have been passing from one to another in the Council since the Commission proposed new rules in 2023 to facilitate the technology.
While the seed industry argues that patents are necessary to protect innovation, critics warn that the new legislation leaves Europe’s small breeders vulnerable against the big agro-industry.
Patenting cold-resistant maize
Grietje Raaphorst-Travaille has run Nordic Maize, a small Dutch breeding company, along with her husband for almost 25 years. “We are located in the north of the Netherlands, and develop maize varieties suited to our region,” she explained.
Breeders like her have shaped many of the fruits and vegetables we take for granted today – from the juicy sweet Fuji apple, developed in Japan less than a century ago, to the now-common orange carrot, cultivated by Dutch growers in the 17th century.
In 2022, the NGO ‘No Patents on Seeds’ told Raaphorst-Travaille that German seed giant KWS had obtained a patent covering maize traits widely present in her crops: cold resistance and digestibility.
“Many breeders work on these traits, which are influenced by environmental factors and not just genetics,” Raaphorst-Travaille said. “It’s astonishing that patents are granted on such general characteristics.”
Although the NGO then filed an opposition to the patent, the European Patents Office (EPO) rejected it in October 2024, arguing that KWS filed its application in 2016, when the patentability of conventional plants was still in legal limbo.
The EPO clarified in 2020 that only plants produced using genetic engineering can be patented.
Raaphorst-Travaille now fears that KWS could enforce its patent against her company, which she described as “absurd.”
“A large company holds a patent on a trait we have been working with for years, and we could be forced to pay them royalties,” she said. “That would be completely unfair.”
Changer under new EU rules
For breeders like Nordic Maize and farming organisations such as the European Coordination Via Campesina (ECVC), which represents small scale farmers, the EU’s new legislation on new genomic techniques (NGTs) risks expanding patent claims on general crop traits.
The regulation, presented by the Commission in 2023, aims to facilitate marketing of food crops produced using NGTs like the Nobel-awarded CRISPR-Cas9, which allows much faster and targeted genomic modifications.
Potential applications include making crops more resistant to extreme weather and disease, which are becoming more common due to climate change.
However, “unlike existing GMO regulations, the new rules would not require companies to publish details on how to detect and identify genetically modified traits, making traceability of NGTs and patents impossible,” said an ECVC spokesperson.
A 2021 Commission study found that methods to identify genetically modified traits in plants are a significant scientific and economic challenge when it comes to NGTs, adding that their absence remains a “concern for stakeholders.”
Furthermore, under the EU’s biotech directive, patents on gene-edited crops automatically extend to all crops that express the same function – even if bred conventionally.
For the ECVC, the quick fix would be to review this directive: limit the scope of patentability to avoid extending it to plants obtained through traditional breeding, and improve traceability for NGTs.
Yet, back in 2023 when the Commission unveiled the NGT proposal, it hinted that reopening the biotech directive was not part of its plan.
Italian farmer Antonio Onorati, a member of the ECVC seeds working group, also raised concerns about the burden placed on farmers. Under the new rules, farmers could be required to prove they have not infringed a patent if patented seeds accidentally contaminate their fields.
“Some seeds can survive in the land for five to 10 years,” said Onorati.
Stalemate in EU negotiations
While the Parliament has called for a blanket ban on patents for gene-edited crops, disagreements among EU countries have stalled negotiations for over a year.
In January, Poland, which is leading discussions in the EU Council of ministers, suggested allowing member states to limit patents based on “socio-economic grounds,” but later withdrew the proposal.
Instead, the latest compromise text, which EU ambassadors will decide on tomorrow, introduces provisions on patent transparency, but does not restrict them.
Breeders applying for NGT approval would be required to disclose any related patents they are aware of “to their best knowledge.”
Innovation stewards
For the major seed industry players, patents remain crucial to fostering research and development.
Euroseeds, which represents national seed associations and industry giants such as Bayer, BASF, KWS, and Corteva, told Euractiv that patents serve as tools to “encourage and protect investment in research.”
“We also advocate for developing special, most-favourable terms for small companies,” said Francesca Garbato, Euroseeds’ manager of intellectual property and legal affairs.
A Brussels-based industry source told Euractiv that Europe has some of the strongest intellectual property and patent protections in the world, but that these also “allow breeders of all sizes to access technology.”
“Without this protection, innovators will go elsewhere to develop their research, which then denies European farmers access to critically needed tools,” they added.
Even without direct enforcement actions, Raaphorst-Travaille believes that the mere existence of patents discourages breeders from working with certain traits.
For the ECVC, the case of Nordic Maize exemplifies how companies use patents to secure monopolies rather than drive innovation.
“When you put a patent on a trait or a product, it’s supposed to be innovative,” said Onorati. “But if it has been done before with conventional breeding, can it really be considered an innovation?”
*Maria Simon Arboleas contributed reporting
[MM]
