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Proposed EU ban on gene-edited crop patents prompts dispute
Critics of plan include green activists, farmers, biotech
start-ups and multinationals
Nick Huber
YESTERDAY
A plan to deregulate gene-edited crops in Europe has become
entangled in a dispute over the technicalities of intellectual
property.
In February, the European parliament agreed to loosen regulations
by banning patents on crops produced by genetic editing. The move
followed a proposal in 2023, by the European Commission, the EU’s
politically-independent executive arm, to lift controls on some
genetically modified crops in order to help farmers maintain
yields in the face of climate change.
Genetically modified crops — in which genes from a different plant
species are added to a plant’s DNA — can have various benefits,
including making crops more nutritious, or more resistant to
pests. These crops, among them soyabean, corn and cotton, are sold
around the world, including in the US and India. But the
technology remains contentious, with critics disputing its alleged
benefits.
In the EU, prior to the deregulation plan, only one “genetically
modified organism” had been authorised: an insect-resistant maize
variety. In its February move, however, the European parliament
decided to relax restrictions on a similar genome technology —
that of “genetically edited” crops — which, under the proposed
law, will be treated the same as crops grown in a conventional
way.
Genetically edited crops do not involve “foreign” genetic material
from other species being inserted into a plant. Instead, precise
changes are made to a plant’s DNA, by editing it with the
equivalent of molecular ‘scissors’.
The most common gene-editing technology is called Crispr: a
laboratory biotechnology that uses elements naturally found in
bacteria to modify the DNA of living organisms. Supporters of crop
gene editing say it will strengthen Europe’s food system and make
it greener, by developing plants that are more resilient to
climate change and pests, have a higher yield, and require less
fertiliser.
Gene-edited plants are “crucial to strengthen Europe’s food
security and to green our agricultural production”, said Swedish
lawmaker Jessica Polfjärd, the politician leading the genome
deregulation plan in Europe’s parliament, earlier this year.
The European Commission proposal in 2023 said Europe was falling
behind other parts of the world in gene editing and should relax
restrictions on the technology to catch up, explains Andrea
Williams, a partner and European patent attorney at law firm Marks
& Clerk. “The European parliament was like, ‘we agree’,” she
says. But there was a catch. The parliament said that cutting back
restrictions and regulations would have to include banning patents
on genetically edited crops.
Among critics of the proposal to ban the patents are green
activists, farmers, biotech start-ups, and multibillion-dollar
agriculture technology companies. A key concern is that banning
patents will stifle innovation because companies will no longer be
able to prevent their inventions from being copied.
“Farmers and biotech companies are investing in technical
innovations they may not be able to protect through patents,”
points out Camilla Kiørboe, a partner and Danish patent agent at
law firm Potter Clarkson. “This causes legal uncertainty for
companies investing in R&D in this sector as well for
investors.”
Kiørboe — an expert in food and agricultural technology
intellectual property — acknowledges the arguments for lightening
the “regulatory framework” for gene-edited crops. Current patent
rules for plant breeders can be “difficult to navigate”, she
admits. However, uncertainty over if, or how, the proposed patent
ban will be implemented makes it “super difficult” to know how to
advise clients, she says.
UK biotech start-up, Resurrect Bio is already using gene editing
to develop crops resistant to disease. Its co-founder, Cian
Duggan, says patents are essential to protect biotech intellectual
property and breakthroughs.
It can take up to 10 years of research, including up to four years
of field trials, to develop crops with new disease-resistant
traits and bring them to market, he notes. “We develop new
technologies [and] new solutions for farmers, and we license that
intellectual property to the seed industry,” Duggan says. “Without
a patent, we have no product.”
He adds that a patent ban would also make it harder for small
companies to compete against the half a dozen or so large biotech
companies that dominate the industry. If the European proposal
becomes law “it would encourage our board to want to move to the
US”, Duggan says.
Yet, even if the EU pushes ahead with its patent proposal, other
small businesses in agriculture doubt whether it would achieve its
intended objectives — for example, avoiding legal uncertainties.
According to one such small crop business, Nordic Maize Breeding
(NMb) of the Netherlands, a patent ban on gene edited crops could
still leave them subject to legal action for infringements, making
it “irrelevant”.
Grietje Raaphorst-Travaille, co-founder of NMb, which breeds maize
through conventional and organic methods, suggests that, if
farmers think a patent ban on gene edited crops will give them the
peace of mind, they may be disappointed. “Farmers run the risk of
violating patent rights without knowing it,” she warns — and they
may be sued as a result.
Gene editing in agriculture will drive small businesses “even more
into the trap of dependence on large companies”,
Raaphorst-Travaille believes.
Large biotech companies, however, are also worried. Matthias
Berninger, head of public affairs, science and sustainability at
Germany’s multinational pharmaceutical and biotechnology company
Bayer, which supports patentable gene edited crops, says gene
editing is a “very important” innovation at the “intersection of
biology, chemistry and artificial intelligence”.
One alternative to the European patent proposal, favoured by some
patent lawyers — and Bayer — would be to allow patents for
gene-edited crops but insert a clause into the law that allows
small plant breeders and farmers to use materials and techniques
covered by patent, without having to pay a licence fee to the
patent holder. Bayer uses this principle for small vegetable
breeding companies in the EU.
Critics of the proposal appear less flexible, though, and say it
should either be scrapped or modified to reward companies for
technical breakthroughs. One source familiar with EU legislative
procedures says the “best-case scenario” is for the plan to become
law in the first half of 2025.
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