‘Contextualising patenting of plant genetic resources: hidden threats to biodiversity’

Two key decisions by the European Patent Office’s Enlarged Board of Appeal slipped by largely unnoticed for many. However, the March 2015 decisions of Tomato II and Broccoli II bring the European approach to plant patenting closer to that in North America and have the potential to impact negatively on the future of plant breeding and on biodiversity within Europe.

Biodiversity, including genetic diversity or plant genetic resources (PGRs), is essential to sustainability and to other fundamental objectives such as food security. This can be achieved through breeding, innovation or indeed simply physically introducing a species into a new setting. However, developing or introducing new crops can be a costly and risky business. Intellectual property rights (IPRs), including patents, are considered to promote and reward investment and innovation, by providing individuals or corporations with a form of enforceable property right. Europe has facilitated the application of IPRs to living organisms and specifically plants or plant materials via a number of mechanisms including through the European Patent Convention, the Biotech Directive and the Regulation on Community plant variety rights. However, the potential impact of IPRs in the context of living organisms is much greater than it might appear and specifically in relation to patenting rules.

This piece argues that the contextual elements lead to an imbalance in the operation of patenting rules. Whilst the Tomato II and Broccoli II decisions focussed on the patents of components within individual plants, the patent has the potential to attach to any progeny carrying the patented trait (even where accidental) with considerable knock-on effects. These knock-on effects are due to numerous contextual elements, such as capitalism, economic goals, changes in agricultural practices, the innate reproductive capacity of living organisms and the permeable nature of the environment. In context, patenting goes beyond one plant or trait and leads to the enclosure of PGRs more broadly – of something once considered to be a public good into a private good – even whilst pronouncing this as in the public interest. Thereby, the context itself is undermining one of the over-arching aims of patenting.

Consequently, it is essential to contextualise IPRs in an interdisciplinary manner. Questions arise as a result, such as should IPRs be re-conceptualised in this field and overhauled in order to create more fit-for-purpose sui generis systems? Alternatively, should society do away with private ownership of PGRs and reinstate them as public goods? The context itself will make significant changes challenging, but at least the questions must be posed if society is to take biodiversity and sustainability seriously.