Is the patentability of genetically modified plants under threat in Europe?
🌱 On 7 February 2024, the European Parliament adopted its negotiating position on a text that would relax the rules on the plants produces by new genomic techniques (NGT) – which differ from GMO plants in that they do not involve the insertion of foreign DNA – by distinguishing two categories of NGT plants:
- NGT 1 plants considered as equivalent to conventional plants – mainly limited by the size and the number of mutations – will be exempt from GMO legislation, but will have to be labelled on seeds and included in an online public list.
- NGT 2 plants will still have to comply with the legislation in force for GMO.
The text also provides to banish the possibility of patent protection for NGT plants, whatever their category.
The reasons put forward are to avoid legal uncertainties, increased costs and new dependence on farmers and breeders.
A report on the impact of patents is expected by June 2025, in view to adapt the legislation if necessary.
To date, genetically modified plants (GMO or NGT) remain patentable under the European Patent Convention (EPC), unlike plants produced by “essentially biological processes”, which have been excluded from patentability in Europe since the amendment to rule 28(2) EPC in 2017, as confirmed by decision G 3/19 of the EPO’s Enlarged Board of Appeal.
The potential exclusion of NGT plants from patentability is likely to negatively impact innovation in this type of plant in Europe, even though the purpose of relaxing European regulations on NGT is to encourage their development…
The time is now for negotiations between the EU and the Member States. However, the hypothetical adoption of the European Parliament’s position by the Member States is not expected for several years. Beau de Loménie will be keeping a close eye on legal developments in this field.