Proposed alternative system could intensify corporate control of seeds. By Claire Robinson
The German Plant Breeders' Association, BDP, has moved to officially oppose patents on certain new GMOs that, it argues, could occur naturally. The BDP says, "The patentability of biological material, which also occurs or could arise in nature, must not be possible, regardless of how it is produced."
The BDP also wants to allow seed breeders to be able to use patented material for breeding purposes: "The possibility of using patented material for breeding purposes, as provided for, for example, in German and French patent law, must be introduced throughout Europe."
The Dutch* and Austrian plant breeders' associations take similar positions to the BDP.
The BDP includes among its members major GMO patent owners such as Corteva, Bayer, BASF, Syngenta, Limagrain, and KWS.
So what's going on? Why would companies whose business model depends on patenting GMOs claim to oppose patents on certain new GMOs? And does this mean they share the concerns of farmers and seed breeders who are resisting the introduction of new GMOs on the grounds that this will lead to increased patent controls on seed?
Patent owners against patents?
The answer to these questions lies in the fact that as the BDP rightly says, patents won't be abolished in the near future. At the same time, neither the BDP nor its member companies show any intention of trying to change the existing patenting rules. And the BDP member companies are continuing to patent their GMOs. They're even patenting plants and plant traits that are conventionally bred and not genetically engineered.
In contrast to regulations under the plant variety protection system, patented seeds are not freely available for use without the permission of the patent holder and cannot, for instance, be used to breed new varieties for cultivation.
So perhaps the BDP member companies don't really want to abolish patents on GMOs that are claimed to be able to arise naturally, after all. For now, the member companies may be happy for the BDP to make some noise opposing patents, thus potentially appeasing the farmers and seed breeders who are opposing new GMOs on grounds of patent control of seeds – and defusing that source of dissent.
Alternative model: Another method of corporate control
Let's assume for the sake of argument that the BDP and its member companies are serious about opposing patents on GMOs that (as they claim) "could occur naturally". The BDP is proposing an alternative model: "Licensing platforms such as ACLP (Agricultural Crop Licensing Platform)", which "cannot replace a clear legal regulation, but they offer a possible transitional solution". Under this system, "The extent of access to patent-protected traits and breeding technologies can be defined by the members under private law."
The ACLP is newly founded by (you've guessed it) Corteva, Bayer, BASF, Syngenta, and Limagrain – the very same companies that BDP seemingly speaks for when it demands an end to patenting of GMOs that "could arise in nature".
The ACLP also claims to have small and medium-sized companies among its founders, though it's not clear which companies these are and how much power they will have within the platform.
The cynical onlooker might deduce that in order to overcome a major obstacle on the road to GMO deregulation – farmer and seed breeder resistance against patented seed – the seed industry now officially agrees that patents should be ruled out, while offering its own licensing platform from which it will control access to its new GMO technologies and products – which are, however, still patented, and which breeder and farmer customers will have to pay to access.
It is standard practice for licence fees to need to be renewed, so customers won’t just have to buy a one-off licence, but, depending on the agreement, they could have to pay again and again to maintain their right to use the germplasm. As well as licence fees, seed companies can also claim royalties, so that when the customer sells products from the germplasm that they have taken out licences to use, they will likely have to pay royalty fees.
Patents can even extend to processed products such as beer.
Public law replaced by companies' private law?
Breeders of new plant varieties in the EU can currently benefit from a type of intellectual property right called the Community Plant Variety Right (CPVR), which is similar to a patent and ensures that breeders can receive an adequate return on their investment by retaining the rights to the use of the plant variety. But crucially, it allows plant breeders access to the variety for the purpose of breeding new varieties.
However, it's not a requirement to register a plant variety under CPVR – it's a choice. It is unclear how the ACLP, based on the "private law" of the seed companies (a chilling concept), will interact with these rights, or wipe them out. Will the ACLP offer the companies a chance to "bully their way into" the CPVR and replace it with a system more in line with their inclinations and profits? In a world where the "big four" GMO seed developer companies own 60% of the world's germplasm globally, they would be able to dictate terms to anyone who wants access to that germplasm.
This situation demands close ongoing scrutiny, which will, however, be challenged by the fact that "private law" by its very definition means that the public is unlikely ever to see the terms of any agreements formed under it.
Benefits to GMO developer companies
Overall, it is difficult to see how farmers or plant breeders will benefit from the ACLP licensing platform. However, it is set to benefit GMO developer companies in several ways: Some obvious; others, not so much.
On the obvious side, the ACLP platform is touted as providing "access to marketed patented traits on fair conditions in Europe with increased transparency, including eventually, genome edited traits... ensuring that innovation in plant breeding can be available to all European breeders".
GMO developer companies have always been able to sell licences laying out the terms of access to their technologies and products. But the new platform may simplify this process by providing a one-stop shop for customers (farmers, breeders and other users), who must pay for access licences or trade their own intellectual property in return.
It's likely that in line with the usual GMO business model, research licences may be granted cheaply or for free, but the commercial licences needed to bring products to market will continue to be expensive and out of reach for smaller players.
In GMWatch's view, these smaller players will not suffer from their lack of access to gene editing technologies and their products, as they are unlikely to provide anything of sustained value. But our future food security depends on the availability of diverse and locally adapted seeds. So farmers and breeders must retain free access to a wide range of conventionally bred germplasm for breeding. We oppose any system that restricts this access.
Patents granted on conventionally bred plants
Worryingly, seed companies continue to blur the line between conventionally bred and genetically engineered seed. Their patent claims are deliberately vague, encompassing genetic sequences that could be obtained with or without genetic engineering. The European Patent Office continues to grant such patents, even though officially, patents on conventionally bred plants are not allowed.
The BDP and the Dutch and Austrian plant breeding associations say they oppose patents on conventionally bred plants. But some BDP member companies defend such patents tooth and nail. Recently, Syngenta successfully defended its patent on conventionally bred sweet and hot peppers. Neither the BDP nor the companies have explained this discrepancy.
It remains to be seen how the new ACLP platform will treat patented conventionally bred germplasm – whether it will increase or restrict farmer and breeder access.
Patents and proprietary intellectual property
Patents are only one aspect of intellectual property rights. Intellectual property rights are a legally enforceable system of retaining exclusive rights over an "invention" for a defined period. Other aspects are designs, copyright, and trade marks.
The less-than-obvious benefits of the ACLP platform to its founder GMO developer companies – and the dangers to everyone else – will become clear if it ever begins to offer technologies and products that are not patented but are nevertheless the companies' own proprietary intellectual property – and begins to operate outside the CPVR system, under the undefined "private law" system of the companies' own design.
This situation would also result if the reform the companies claim to support, and that small breeders and farmers are fighting for, ever materialises – the non-patentability of biological material that could arise in nature.
With plants that are not patented but are nevertheless the companies’ own proprietary intellectual property, the developer companies would be free to bypass the requirements of the patent office. So they wouldn't have to prove that the technology or product is novel, non-obvious, has utility, and involves an inventive step. Yet they will still own the rights to the technologies and products and will be able to charge customers (farmers, breeders and other users) for access to them.
This course has always been available to companies, but it could be made easier via the ACLP platform. The need to prove non-obviousness and an inventive step for gene-edited GMOs in order to obtain patents has led GMWatch and other civil society groups to publicly question the patentability of new GMOs that are claimed to only have changes that could arise in nature. If something is natural, it can't be patented, and if something can be patented, it can't be natural.
But by cutting out the patent office and just selling licences for use of non-patented proprietary intellectual property, companies will dodge the "natural or not?" conundrum and free themselves from the fear of having to defend their patents in court. And because they don't have to prove that they've come up with a worthwhile invention, they will be facilitated in selling access to GMOs that in reality offer nothing of sustained, unique, or special value. All this adds a whole new perspective to the principle of "buyer beware".
Transparency fades while control expands
Patents are public, whereas agreements between companies and their licensees are secret. Information about specific new GMOs is hard for the public and scientists to access, but some information is available in patents, including information on the genetic sequence that can assist detection efforts. Sometimes this can be linked to scientific publications that add to our understanding. If private licensing agreements begin to dominate at the expense of patents, then far less information would be available about the GMOs that are circulating in the marketplace.
In addition, patents have an expiry date (20 years), after which anyone can freely use the technology or product covered by the patent, whereas private licensing agreements can, in theory, last indefinitely.
So far from freeing up germplasm and democratising plant breeding, it's likely that the ACLP will intensify the corporate control of seeds, as well as weakening transparency regarding new GM technologies and products.
Let's be clear – GMWatch opposes patents on conventional seeds and opposes GMOs in the food supply, patented or not. But the alternative to patents that's being put forward may turn out to be a step backwards and create more problems than it solves. It is deceptive in that the companies are pretending to appear righteous by opposing patents on organisms that could have occurred naturally, but in reality they want to replace patents by a system that is more opaque, less democratic, and will lead to even tighter corporate control of seeds.
Non-patent or patent-independent systems of corporate control of seeds
In addition, other non-patent or patent-independent systems of increased corporate control of seeds are becoming more widespread:
* So-called “club varieties”, whereby a farmer who wants to grow a variety must approach the licence holder to get permission to plant it and must apply to become a club member. Licence agreements can contain strict rules on production factors, including how the farmer grows the variety, marketing (branding), and the numbers of that crop that the farmer can grow. Usually the grower has to pay one-off or recurring licence fees. The most common arrangements are per plant royalties, acreage royalties (per hectare), or produce royalties (royalties per kg of marketable fruit).
* In France, "industrial varieties" are not marketed, but are made available to farmers who are members of the Limagrain cooperative and who cultivate them under a contract obliging them to transfer the harvest (in return for payment) to Limagrain. This system replaces the patent and nobody checks whether or not they are GMOs.
* In the UK, buy-back contracts are used in the UK for certain crops, such as oat seed. You can only buy the seed if you have a contract to sell all the produce back to the seed seller. It’s good if you want to grow something knowing there is a market, but not good if you want to source oat seed and then use the produce yourself, such as for oat milk or to feed your animals.
In conclusion, GMWatch calls for transparency on restrictive licensing agreements so that farmers can evaluate these evolving systems. And breeders must have access to all conventional germplasm.
* The Dutch position reads: "The Netherlands firmly supports reducing patents on natural properties. Currently, these, like genome edited products, are patentable. Plantum believes that products of natural properties should not be patentable. Where that remains possible, a patent should be granted only if it concerns a highly innovative and novel invention."
GMWatch thanks Dr Michael Antoniou for technical advice. Dr Antoniou has held biotechnology patents in the medical sphere (now expired) and is familiar with the patents and intellectual property rights landscape.
This article was updated on 30 March 2023 to include the section, "Non-patent or patent-independent systems of corporate control of seeds".