“Breeding is undergoing a transformation”

For decades, plant breeders used conventional breeding methods based on free access to publicly available plant material. However, the use of important new technologies means that plant traits are increasingly becoming patentable – and that is a barrier to conventional breeding. New approaches to intellectual property (IP) are therefore needed to ensure both conventional breeding and the use of new technologies. Claudia Hallebach, Head of Global Legal & Intellectual Property, explains the solution approaches offered by the new ACLP platform.

Ms. Hallebach, the ACLP licensing platform went online in January. All the major plant breeding companies from Bayer to KWS, as well as small breeders, are involved in it. What exactly is the platform about?

We are currently undergoing a transformation in plant breeding. Conventional crossing and selection are being joined by new breeding methods. We need conventional approaches for the variations, but we also need the new technologies to ensure innovation and achieve the goals of the European Green Deal: In a relatively short time, by 2030, farmers will have to get by with using about 50 percent less chemical pesticide and at least 20 percent less fertilizer, while ensuring higher yields over less area. We’re convinced that new genomic techniques (NGTs) can speed up the development of new and better varieties tremendously. We therefore hope that the draft legislation announced by the EU Commission will no longer classify NGTs as genetic engineering and thus pave the way for us to really be able to use this technology. However, legal problems have arisen due to proprietary rights. We are remedying this problem with the licensing platform.

What proprietary rights are involved?

There are two types of proprietary rights in plant breeding: variety protection and patent protection. Put simply, variety protection is a sort of right of ownership: Anyone who breeds a variety in the conventional way and has it protected secures the exclusive right to market that variety. In contrast, patents relate to plant traits that are not developed through crossing, but with the aid of new technologies, i.e. technically. These traits are not confined to one variety, but – once developed – can be crossed into many varieties. And they are not covered by variety protection, but by patent protection.

So where is the problem?

Variety protection deliberately has limits, because plant breeding thrives on diversity of breeding material: The breeder's exemption therefore allows competitors to buy varieties on the market in order to cross them into their own varieties. That produces a new variety, which in turn is allowed to be protected and marketed by the new breeder. This arrangement has served us well for many decades. However, if a variety contains a patented trait, competitors are not allowed to continue crossing with this seed, because one component is protected by patent. In a sense, the breeder’s exemption is negated.

It therefore sounds plausible that there are opponents of patent protection in breeding.

That may be true with regard to the fear that monopolies could otherwise emerge – but that is what we’re preventing with the new platform, which guarantees that each member can obtain licenses at standardized and fair terms and conditions. Moreover, we mustn’t look at Europe in isolation: Plant traits are patentable in the rest of the world. For us, however, the decisive factor is that a lack of patent protection would inhibit innovation. If we want to use new genomic techniques such as the CRISPR/Cas genetic scissors, we as a company have to pay large royalties to the inventors of these techniques, for example to universities. If plant traits that we develop with these technologies were then available to everyone free of charge, we would have to ask ourselves: Is there still enough incentive to invest? Anyone who did so would keep a plant trait secret for the time being – and that would tend to slow down innovation.

Is it different with a patent application?

Yes, you have to describe very precisely in the application which plant trait is involved and what it does in a plant. That means competitors know at an early stage that this trait exists, can draw their conclusions from it and reproduce a trait – but until now have not been able to breed and market their own varieties with it. That is now changing thanks to the platform and guaranteed licensing.

To what extent? What is the ACLP’s function?

The Agricultural Crop Licensing Platform has several components. Let’s suppose I’m a breeder and I see that a rival company has launched a drought-tolerant variety. Now, I don’t know to begin with whether this variety has been created through conventional breeding or new genomic techniques. We solve this problem with the platform because all ACLP members have undertaken to enter their varieties with patented traits into a database. If I then want to carry out breeding with such a variety, I as an ACLP member get a free license. If the patented trait doesn’t work with my own seed, I simply don’t use it. But if it does work and I want to market my seed with that trait, then I come to an agreement with the holder of the patent on paying a royalty. However, the fee is only due when I actually launch my variety on the market – and only for as long as the total 20-year patent protection term still applies. Given the long development times in plant breeding, the period during which royalties are due is therefore generally much shorter than 20 years.

What is the risk faced by the companies involved that competitors will use the trait to put a variety on the market faster than you?

We’ve deliberately minimized this risk and defined it in the same way as for variety protection: Competitors are allowed to start crossing a trait into their own seed only when a variety with the trait is available on the market. But yes, globally, there is a risk – for example, if a trait is already on the market in Croatia but not yet in France, a competitor there could be faster than the discoverer of the trait.

Apart from the reasons already mentioned, are there any other arguments why all the major breeding companies are nevertheless participating in the platform?

In the European Union, acceptance of the new genomic techniques is an issue per se. Critics often argue that the patent situation could lead to monopolies by the large breeders and that plant traits produced using them would not be able to be used by everyone. The major breeders want to counter that with the platform. We are therefore also sending out an important political message for acceptance of NGTs in Europe.

What obligations do the members undertake?

A graduated membership fee, which is necessary for administration, must be paid to leverage the platform’s advantages – the ACLP is non-profit and does not have to make a profit. The more members there are, the cheaper it therefore gets. And there’s an obligation to be a member for at least five years and keep the plant traits available for another five years. So even if a company finds a brilliant trait, it can’t just leave quickly.

Even before the ACLP was launched, KWS had already forged ahead with its own TraitWay platform. What exactly is it?

There are gray areas in patent law: You can also use conventional breeding to develop plant traits that would be patentable with the new genomic techniques. However, a 2018 regulation stipulates that such native traits are not allowed to be patented. However, techniques to find these native traits may be patentable – for example, the magnifying glass, i.e. the marker, to detect them more quickly. These techniques are the subject of the license we offer through TraitWay, in addition to all patented native traits developed before 2018. That is another signal we’ve sent to policymakers: We’re really serious, we want to make innovations accessible to all. |