Access to patented
traits

The use of new breeding methods to complement familiar conventional ones means patents are growing in importance in innovative plant breeding. It is therefore vital that patents and variety protection do not negate each other, explains Claudia Hallebach, Head of the Global Legal & Intellectual Property department. The aim of the initiative to establish the Agricultural Crops Licensing Platform (ACLP) is to offer a solution that creates a balance between both proprietary rights and thus makes the protection of intellectual property fit for the future.

Why do we need patents in plant breeding? Isn’t variety protection as a tailored proprietary right enough for our breeding activities?

Plant breeding is traditionally based on crossing and selecting breeding materials to develop new varieties. Under the breeder’s privilege enshrined in variety protection, a breeder can use any plant variety available on the open market and cross it with its own varieties. It can then freely market the variety newly bred from that.

As a complement to conventional breeding, we at KWS develop traits that give the plant varieties certain individual properties, such as resistance to diseases or extreme climatic conditions, quality features or resistance to herbicide. These properties are necessary to drive progress and innovation in plant breeding. Traits can be patented provided certain criteria are met. Given the greater use of new breeding methods, we can assume that the number of patented traits in plant varieties will keep on growing in the coming years.

Does that mean we now have two systems to protect intellectual property in plant breeding?

Yes, but each of these systems protects a different type of innovation: While variety protection covers the entire plant variety, patents protect traits and technologies. Both proprietary rights are necessary to speed up innovations in Europe so that the ambitious targets for sustainable agriculture and the Farm to Fork Strategy can be achieved. However, the two proprietary rights unfortunately conflict with each other to some degree.

And why? What’s the difficulty?

A patented trait in a variety undermines the breeder’s privilege in most European countries. Without a license from the patent holder, breeding with commercial varieties from the open market and marketing of the patent trait in them are not therefore possible. The breeding companies have recognized this dilemma, and now there’s an initiative to establish a licensing platform for agricultural crops that offers solutions for striking a reasonable balance between the two systems of proprietary rights – similarly to the already existing licensing platform for vegetables.

Why and how does KWS support the licensing platform initiative?

KWS is one of the drivers behind the initiative because we believe the ACLP can offer a solution to the problems in the area of intellectual property resulting from the growing discussions about new breeding methods and their use in Europe. The platform can prevent monopolies because it grants guaranteed access to patented traits. The use of Standard License Agreements reduces the need for laborious negotiations and cuts transaction costs; only royalties for the traits have to be negotiated between the members. The platform also ensures transparency on the traits patented in varieties and offers a contractual breeder’s privilege. The ACLP thus offers a tailored solution for technology transfer in plant breeding and therefore promotes innovations in the industry.

Who else is participating in the platform?

The initiative is driven by ten small, medium-sized and large plant breeding companies representing a broad range of agricultural crops. It thus reflects the differing requirements and needs. In the past year we’ve worked intensively on creating the general legal framework and we are now finalizing the necessary documents. As planning stands at present, the ACLP will be launched at the beginning of 2022.

What happens after that?

Several roadshow events are planned to give associations and interested companies the chance to ask questions and learn more about the details, conditions and membership options. Of course, our goal is to recruit as many members as possible so as to ensure that the ACLP acquires a large pool of traits and know-how.

What are your expectations of the platform?

We believe this platform can deliver benefits for European farming by ensuring that innovations that increase the productivity and sustainability of agricultural crops are available to all European breeders. |