Agricultural technology is changing, and faster than many people realise. An underlying goal is to increase yields or other advantageous traits of crops whilst reducing inputs and environmental impacts.
Intellectual Property (IP) rights will be of central importance in reaching such goals. Plant variety rights, trademarks and patents are important tools used by agricultural companies to add value to and protect their businesses whilst driving innovation and technological developments in the sector.
Over the past 30 years, more than 90% of yield gains in the UK’s major crops have been achieved through plant breeding innovation (1). Protection for individual crop varieties may be sought via Plant Variety Rights (PVRs). For example, a central EU system is available for distinct, uniform and stable varieties. To qualify for community plant variety rights (CPVR), the variety must not have been commercialised within the EU more than one year prior to filing or outside the EU for more than four years (six years for trees or vines). CPVRs offer long-lasting (25 years +) protection, and can be used to prevent unauthorised reproduction, sale, export or import of the plant variety into the EU. Around 200 PVRs relating to agricultural crops are in force in the UK (2).
Trademarks can be used to identify the source of food products and gain brand recognition. Examples of trademarks used in agriculture include “Pink Lady” apples, first produced by conventional crossing of Golden Delicious and Lady Williams varieties. The trademark “Pink Lady” has been used by commercial owners in Australia to help control the growth, packaging and marketing of apples under this name across the world.
Conventional plant breeding over thousands of years has produced the crop species grown around the world today. With the advent of genomics, marker-assisted selection has the potential to improve the efficiency and precision of conventional plant breeding. For instance, use of DNA markers has allowed the development of Broccoli with higher levels of key phytonutrients (3).
The patent-eligibility of methods that include conventional steps of plant breeding has long been unsettled in Europe. It is now clear marker-aided selection methods encompassing any step of sexual crossing are non-patentable under the European Patent Convention (EPC). Following an intervention by the European Commission, plants obtained by such methods are also currently considered as non-patentable by the EPO (4).
New traits have also been introduced into crops by adding genes from another species into the genome. Last year, the global area of transgenic crops was 190 million hectares, with the USA and Brazil the largest growers (5). Transgenic crops are patent-eligible under the EPC. However, the EU has highly restrictive regulations on transgenic crops (6). As such, few transgenic crops have been commercialised in Europe. Transgenic crops are imported into Europe primarily for use in animal feed.
More recent developments in genome-editing have allowed crops to be precisely engineered with target traits without needing to introduce foreign genes. For example, mushrooms have been genome-edited using CRISPR-Cas9 technology to target polyphenol oxidase activity and reduce post-harvest spoilage. The US Department of Agriculture (USDA) confirmed earlier this year that such mushrooms do not require regulatory approval in the same way as transgenic crops, because they could otherwise have been developed through conventional breeding (albeit more slowly) (7). However, the US is reviewing the process for regulatory approval of genetically modified organisms (GMOs) to take account of advances in biotechnology such as genome-editing.
Regarding genome-edited crops in Europe, the European Court of Justice (ECJ) ruled on 25 July 2018 that genome-edited crops should be subject to the same regulation as transgenic crops (8). To fall within a regulatory exception applied to crops altered by mutagenesis, genome-edited crops may ultimately need to be shown to be as safe as crops developed using more established techniques such as irradiation or chemical treatments which randomly introduce mutations across the genome. In view of the current regulatory environment, navigating the path to commercialisation of genome-edited crops will be a challenge in Europe. In view of the UK’s preparations to leave the EU, the British government has indicated that it will review the EU regulations surrounding GMOs. The extent to which genome-edited crops are commercialised in the UK and around Europe, however, remains to be seen.
For more information, please contact Huw Jenkins email@example.com
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