Weekly take: EU’s NGT plant patent ban is a ‘fatal signal’

Managing IP is part of Legal Benchmarking Limited, 1-2 Paris Gardens, London, SE1 8ND

Copyright © Legal Benchmarking Limited and its affiliated companies 2026

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

Weekly take: EU’s NGT plant patent ban is a ‘fatal signal’

fatal signal-comp.jpg

Banning patents on plants produced by new genomic techniques could damage innovation and jobs in Europe, says Jörg Thomaier, head of IP at Bayer

Biotechnology has been identified as one of the key technologies with a significant potential to boost Europe’s competitiveness whilst providing solutions that contribute to reaching the EU’s sustainability ambitions.

A new regulation for plants produced by certain new genomic techniques (NGT), such as targeted gene editing, would represent an important milestone in fostering and therewith creating a growing economy and more employment in the biotechnology sector of Europe.

It was therefore highly welcomed that on Wednesday, February 7, the European Parliament voted in favor of a new regulatory framework to regulate the release and use of NGT plants in argriculture.

However, at the same time, Members of the European Parliament (MEPs) amended the European Commission’s proposal to introduce a new full exclusion from patentability for all NGT plants (plants obtained by new genomics techniques such as targeted mutagenesis and cisgenesis) and further even for plants obtained by random mutagenesis techniques or cell fusion.

This caused quite some criticism.

Without adequate patent protection, companies in Europe will not be able to invest in NGTs, the pace of innovation will slow down, and the EU’s goal of fostering competitiveness with stronger biotechnology contributions will be put at risk.

For a successful introduction of NGTs, both adequate regulatory requirements and patent protection are crucial.

Patent and regulatory law fulfil different tasks.

The regulatory framework serves to protect health and the environment, whereas the patent system is designed to stimulate innovation and the economy.

New technologies such as gene editing and NGTs offer new opportunities. With these innovations, scientists can make very specific changes in a plant to develop new varieties with targeted desirable characteristics.

However, they require significant R&D investments to develop such varieties.

The ability to protect newly created traits with patents is an essential component to secure sustainable investments into R&D for the successful breeding of innovative crops that help farmers keep up productivity in times of climate change and help introduce more sustainable cropping systems.

Fatal signal

Patent bans are therefore a fatal signal.

In the European parliament, it was said that the ban may help to avoid new dependencies of farmers and breeders from patent holding companies. Patent bans are often misperceived to be a solution, but rather end up being detrimental to further innovation.

A patentability ban could result in less to no further developments specific to agricultural conditions in Europe as there would be no adequate compensation for the efforts.

Plant breeding is a highly regional business. For example, seeds produced in the mid-west of the US, might not be well-suited for Europe or Latin America.

Should there be no adequate patent protection, it is hard to see who would develop and work on specific regional solutions for Europe using these new techniques.

Plant variety protection alone falls too short. Patents are the only legally available tool to protect new traits.

The general research exemption and the breeders’ exemptions already implemented by many EU member states, and being part of the new unitary patent system enable free experimentation, breeding and development of new plants.

Together with an equitable and fair licensing policy, enabling the commercialisation of new plants patents does not block access but stimulates innovation.

Enabling the dissemination of innovation to many breeders, provides more choice and value-added solutions for farmers.

Patent protection secures a level playing field between competing companies, and fair licensing is prone to doing the same for small market players and larger cooperations.

Over the last year or so, several voluntary initiatives have been launched across the crop sector intending to facilitate access to patented materials.

In addition, under the EU's Biotech Directive, farmers are entitled to save seeds under the same conditions as for plant variety protection. Small farmers do not have to pay anything.

A solution should be reached that acknowledges the importance for small market participants to gain access to genetic material while respecting the importance of patent protection for trait innovators.

This would, in our view, be the only option to give NGT technology a chance to deliver on its promises in Europe for the benefit of all. We should first wait for publication of a much-needed fact-based study into NGTS that has been announced by the commission.

Excluding these technologies from patentability is surely not the solution.

more from across site and SHARED ros bottom lb

More from across our site

How law firms can secure themselves in a technology-driven IP landscape and how IP teams can develop future leadership were among the top talking points
The variety of winners demonstrates that the UPC is now a core benchmark rather than an experimental consideration, while junior lawyers are becoming more deeply involved in key work
The Indian government announcing a fee waiver for sports-related IP registrations, and the US adding the EU to its IP 'watch list' were also among major developments
Sources say the judge could return to a disputes or mediation-focussed role, though others have questioned whether the Texas court will remain a litigation hotspot in his absence
Sheppard, which has hired 14 IP partners in the last 12 months, has cited client demand for expert counsel in SEP, ITC, and district court disputes
Tingxi Huo joins our ‘Five minutes with’ series to discuss boosting the value of clients’ IP and the importance of reflection
Hefty legal teams assembled for a three-day hearing in what was the court’s first foray into SEPs since Unwired Planet v Huawei
IP firm's new base will be located inside the tallest office space in the UK's ‘second city’
Practitioners at four firms across Asia and Europe share the do’s and don’ts of mindful networking ahead of the INTA Annual Meeting
Brand Action explains why the IP community can be a force for good in the world as thousands of professionals prepare to head to London for INTA’s Annual Meeting
Gift this article