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9.12.2024 legal opinion on the restriction of patents on plants presented

Prof. Metzger has presented a comprehensive expert opinion on the subject of “Legal options for changing the patent protection of plants in Germany, Europe and in international law” on behalf of the Bündnis 90 / Die Grünen parliamentary group in the Bundestag.

 

Background: Breeders who breed new plant varieties in Europe today are faced with an increasingly confusing landscape of numerous, overlapping patents and plant variety rights. The examination of possible infringements of property rights prior to breeding (“freedom to operate” or FTO analysis) is now complex and costly. The same applies to obtaining any necessary licenses. The food and feed plant breeding industry is aware of the problems caused by the jungle of property rights and has taken measures to improve patent transparency and rights clearance. However, these measures do not yet offer comprehensive solutions. Critics of the growing patent practice fear that the liberalization of regulatory law proposed by the European Commission for genetically modified plants produced by new genetic engineering methods such as CRISPR/Cas in particular (NGT plants) could lead to a further increase in patents in the area of food and feed plants and, as a result, to negative effects for small and medium-sized breeders, farmers and biodiversity. Against this backdrop, the European Parliament and the Belgian Council Presidency have adopted proposals aimed at excluding NGT plants from patent protection and restricting the protective effects of plant patents.
This is opposed by the industry associations of the biotechnology sector, which fear a weakening of the innovation activities and competitive position of the biotech industry and predict that the development of innovative plants required for climate protection and sustainability will be hindered.
The report examines the compatibility of the Parliament and Council proposals and other alternative regulatory approaches with WTO law (TRIPS) and the European Patent Convention and explores the scope for national legislators.As a result, a restriction of the scope of protection of plant patents within the framework of the Biotechnology Directive is proposed.
The report is available here.