Interview Mark Jolink
'Access to protected seed also with a patent'
Earlier this year, the European Parliament approved a proposal to subject some genetically modified plants to a less strict authorization procedure. At the same time, it wants to completely ban companies from patenting plants. This throws the baby out with the bathwater, thinks patent attorney Mark Jolink. "The risk is that innovations will fail to materialize and will not become available to European farmers. Even with a patent on plants, farmers continue to have access to protected seeds."
In February of this year there was both good and less good news for the plant breeding sector. The European Parliament reached a majority in favor of a proposal to no longer subject new precision breeding techniques (such as Crispr-Cas) to a very strict and complex authorization procedure. Good news, according to many parties involved. At the same time, Parliament also approved a provision that companies may not patent these introduced (minor) gene modifications. That puts a brake on the willingness of breeders to invest, Mark Jolink also thinks. He is a patent attorney and works at EP&C Patent Attorneys and studied bioprocess technology at Wageningen University, among other things. "Patent protection is intended to recoup your investments."
The European Parliament is positive. Good news you might say.
"That is certainly correct. Techniques such as Crispr-Cas can thus be more freely admitted within the EU. Please note: this involves making minor 'adjustments'. Major transgenic breeding (inserting entire genes instead of dividing them) remains under very strict control. However, this good news was immediately reversed because Parliament also stated that there should be a complete ban on patents on plants. This means that companies are more reluctant to innovate because they cannot recoup their investment."
Unlike North America and Japan, for example, the EU has been reluctant to allow new genetic technology for years. What are the consequences?
"You see that companies within the EU no longer want – or rather dare – to innovate. They are afraid of getting stuck in the registration process of their new plant variety. It is very difficult to guide these companies through the European inspection. opted for an alternative innovation strategy, or sought refuge outside Europe. The risk is that innovations in the field of disease resistance or productivity will not materialize at all, or will remain secret. For example, we hear that seeds are being developed specifically for the American Midwest. That development is not happening in Europe."
What are companies facing the most at the moment?
"The whole thing is legally very complex. In general, there is a lot of misunderstanding about how the patent system on plants works. I think this is partly due to an image problem. Concerned citizens immediately think of Monsanto and, for example, their Roundup-ready soybeans, but there is so much behind it. We really support not only the large biotech companies, but also many universities and startups. It is precisely the latter two parties that are busy applying Crispr-Cas."
There is also plant breeders' rights, so what is the difference with a patent on plants?
"Plant breeders' rights protect the variety, but not specifically the technical innovation. An example: If you slightly adjust a plant's own gene in an existing potato variety with Crispr-Cas so that the variety becomes more resistant to drought, then you may use this variety, but also others protect varieties with this gene through a patent. This protects innovation for a period of twenty years."
Wouldn't one company get a monopoly position on this innovative plant, which is exactly what the European Parliament wants to prevent?
"The innovative plant is indeed protected via a temporary monopoly. But the alternative may be that the plant is not developed at all. Moreover, there are market forces. Farmers can always opt for existing alternatives. This also ensures that prices do not simply rise. Moreover, international patent law states that a patent must always be public to other parties. That is the whole idea of a patent: to stimulate further development Opponents say it brings breeding to a standstill, but I see this differently in my practice. Farmers are given access to protected plants or seeds through a breeder's exemption. This is important to further address fears of abuse of power to ensure easy access to genetic material under fair conditions, especially for small market players, while also respecting the importance of patent protection for innovators. It International Licensing Platform is an example of such an initiative."
That sounds good, but what about all those plant properties that already exist?
"It is a persistent myth that all plants will soon be protected by patents. That is not the case. All plants and seeds that are already known will remain patent-free. Moreover, it is not possible to patent plants that have been obtained naturally , such as with crossing and selecting."
The European Parliament is therefore positive, but what will happen next with the legislation?
"The Member States themselves still have to agree on the relaxed admission of new breeding techniques such as Crispr-Cas. The EU agricultural ministers are debating this. It remains to be seen how that will go, because countries are divided and think differently from Parliament. Perhaps the European parliamentary elections later this year will also have an impact on the subject."
Finally, why do you think it is so important to allow techniques like Crispr-Cas?
"There are two things: on the one hand, the current registration policy undermines the competitiveness of European breeding companies worldwide. It inhibits innovation within the agricultural sector and certainly in the Netherlands. Plant breeding is very important for Dutch agriculture. Just think of tomato seed or new potato varieties. On the other hand, there are the global challenges of food security, climate change, disease and drought resistance. New plants can partly provide a solution, but their development takes a lot of time. It is therefore important to encourage companies to continue to innovate in this area."
Niels van der Boom
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