The ‘pepper patent’ controversy
The European Patent Office (EPO) has dismissed an appeal by various NGOs against a patent on a bell pepper held by Syngenta. This has been reported in various media. However, the furor whipped up by the media in connection with these plant-related patents is unwarranted. There is no need for plant breeders to fear a ‘patent trap.’ On the contrary, patents promote transparency and help to drive progress.
Thursday, February 23, 2023
The bone of contention is a bell pepper with a specific trait for which Syngenta filed a patent in 2008. The pepper is resistant to whitefly, which results in more visually appealing, longer-lasting vegetables for consumers and reduced pesticide consumption for farmers. It is the result of around ten years of intensive research and development. Following an extensive search, researchers from Syngenta selected a wild pepper variety that was resistant to whitefly. The company then used modern methods to identify and localize the genetic trait that gives the plant its resistance.
A new product
In a process lasting several years, these wild peppers were then crossed with high-yielding existing varieties. With the plants bred in this way, care had to be taken to ensure that the genetic trait of the original wild peppers was retained in the new variety. This development process resulted in a completely new product: a bell pepper that conforms to popular varieties in terms of taste and yield but has this new resistance to whitefly. This novel property was considered by the European Patent Office to be sufficiently innovative and inventive to patent the plant with this particular property.
Complaints from NGOs
The decision angered many NGOs, who claim that properties of plants, especially the ones stemming from wild plants, should not be patented. In fact, this is already the case for traits derived from wild plants today. So-called ‘native traits’ are no longer patentable in Europe. It was only in 2020, however, that the Enlarged Board of Appeal of the European Patent Office ruled that, as of 2017, properties derived from wild plants may no longer be patented in Europe. Yet this new rule on patentability cannot be applied retroactively. It applies only to newly filed patent applications. It is right, therefore, that Syngenta’s patent that had been filed in 2008 and granted in 2013 has been upheld (like all patents, it has a term of only 20 years after the date of application). There was thus no need for the outcry. In the future, this question will no longer arise in respect of European patents. Outside of Europe, however, patents do still exist for such native traits, so the new rule on native traits disadvantages breeders who want to apply for a patent in Europe.
Fears of a ‘patent trap’ unfounded
This is not enough for many NGOs, however. They are calling for a blanket ban on patents relating to biological material, especially plant traits. They justify this by arguing, among other things, that patents on plant traits prevent free access to breeding material and the development of new varieties. Yet this argument does not hold up under scrutiny. A brief look at the law confirms this: Whether patented or not, breeding of and research on all plant varieties can definitely continue (PatG Art. 9 (1e)). In the PINTO (Patent Information and Transparency Online) database, almost all major seed companies also disclose their patents. There is no need for Swiss breeders to fear falling into the ‘patent trap’. Rather, they would themselves be advised to protect and register their own breeding innovations. Because there are many copycats out there looking to expend a small amount of effort on making changes to a painstakingly bred new variety with a view to marketing it cheaply.
Patents help to drive progress
If a European breeding company nevertheless wants to use patented material for commercial purposes, the ACLP (Agricultural Crop Licensing Platform) and ILP (International Licensing Platform Vegetable) make it easy, particularly for small breeders, to access patented material through licensing agreements. These platforms thus increase transparency with regard to patents, enabling an easy search for keywords. Patents are different from ‘trade secrets.’ By making the ‘recipe’ public through publication of the patent, they enable transparency and, moreover, promote technical progress. The best example of this is smartphones. They contain hundreds upon hundreds of patents. No one would claim that these patents have hindered developments or innovations in mobile telephony. Why should it be any different for plants?
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What is a patent?
A patent is a legal title that gives the owner the right to prevent third parties from exploiting an invention for commercial purposes without permission. In return for this protection, the holder must make information about the invention available to the public. The purpose of publication is to enable third parties to learn from and improve upon the invention. Patent protection is granted for a limited period of 20 years starting from the date of patent application. It may well be that another 10 years pass until product maturity and market launch; half the period in which a patent holder can achieve a return on investment. For the pepper described above, for example, the patent was filed in 2008 and the protection expires already in 2028. This temporary protection of inventions is the main motivation for companies to invest in new technologies. To be patentable, an invention must primarily be new and involve an inventive step. A patentable invention must provide a technical solution to a technical problem. Something that is already known or merely discovered in nature is not a patentable invention.
Can patents be filed for entire varieties or species?
No, no patents are granted for animal breeds or plant varieties in the EU and Switzerland (PatG Art. 2 (2b)). Sensationalist, oversimplified formulations, such as ‘the pepper patent’ used in some media, unfortunately contribute to the confusion. Under this patent, a pepper plant is only protected if it has the specific trait developed by Syngenta. Only the genetic trait described in detail in the patent, which makes the plant resistant to whitefly, is relevant. The original wild pepper has not been patented, and neither has any other plant without this trait.Also, it is no longer possible to patent traits of a plant that are purely the result of traditional breeding methods (legal term: ‘essentially biological processes’). This means that there is no risk that traditional breeders using only traditional techniques or old varieties will fall into the ‘patent trap’.
Examples of plant innovations
Every innovation must be protected, whether by patents or by means of plant variety protection. There are, however, a number of good examples that illustrate the advantages for us as consumers, for crop farmers, and for the environment. Here are two examples:
Delisher is a special cherry plum tomato. It is the world’s first vine-ripened cherry plum tomato, launched by Bayer in 2016. This seemingly small innovation is not only beneficial for the producer, but also promotes sustainability throughout the value chain. Since the fruits are held together on the strong vine, the amount of packaging material and food waste can be reduced significantly.
Syngenta’s IDEAL Melon also helps to avoid food waste. The melon rind has been bred to act as a harvest indicator by changing color. This color change gives a visual cue to stakeholders across the entire value chain, indicating the IDEAL time to harvest from the field, the IDEAL time to ship to distribution centers, and the IDEAL time to stock shelves. Not only can the consumer always enjoy a perfectly ripe melon, this innovation also prevents food waste caused by unripe or overripe fruit.
Patents protect innovation and at the same time they drive innovation. During our Swiss-Food Talk on August 15, three innovation experts discussed the importance of patents for the Swiss economy.
The European Patent Office reports more patent applications for 2022 than ever before. A particularly large number of patents were filed in the field of sustainable technologies - such as clean energy. Switzerland is still one of the most innovative countries in the world, ranking seventh in Europe. To ensure that this remains the case, policymakers must continue to advocate for research-friendly framework conditions in the future.