As the EU prepares to revise regulations on plants produced by new genetic engineering techniques, public and political attention has focused primarily on familiar questions of safety, traceability and labelling.

Far less examined is how intellectual property law – particularly patent law – interacts with these regulatory shifts, and how it may quietly reshape who can participate in plant breeding, on what terms, and with what degree of legal certainty.

Drawing on our recent legal and policy briefing, this article examines how patents on plants and processes created using new genetic engineering technique such as gene editing (commonly called ‘NGTs’ or ‘new GMOs’) operate in Europe, and why they raise deeper questions about innovation, ownership and governance that have so far received insufficient attention.

Innovation through monopolies?

The basic idea behind the patent system is to promote technical innovation by granting inventors exclusive rights on the use of their invention in order to recoup some of their research and development costs. Both products or processes can be patented, provided they are novel, inventive and can be applied industrially. Patent holders have exclusive rights and control over their invention for 20 years, and in this timeframe they can both block others from using their invention or require licenses.

Applying this system to plants and seeds is highly controversial, because it extends monopoly rights to living organisms that reproduce, evolve and are shared across generations.

Historically, plant breeding has been a collective endeavour in which farmers and more recently breeders have developed new varieties from crops and their wild relatives for thousands of years. Access to this shared genetic diversity is the fundamental “building block” of every new variety.

Europe’s patent thicket

The legal landscape for patents for plants in Europe is complex, shaped by overlapping international agreements, European conventions and EU legislation.

At the global level, states have significant flexibility. The World Trade Organization’s TRIPS agreement allows countries to exclude all plants from patentability if another form of intellectual property protection is available for varieties.

In Europe, this condition is enshrined in the International Union for the Protection of New Varieties of Plants (UPOV) Convention, the plant variety protection system implemented in EU Regulation 2100/94. This framework protects newly bred varieties if they are distinct, uniform, and stable, while it also includes a breeders’ exemption that allows breeders to work with them to develop new varieties.

This breeders’ exemption is a defining feature of plant variety protection and distinguishes it fundamentally from patent law. However, the plant variety protection system in the EU also limits farmers’ use of their farm-saved seeds. In some countries farmers have to pay royalties for re-sowing protected seeds and vegetables, and in other countries they cannot re-sow them at all.

In practice, Europe does not make full use of the flexibility granted by the TRIPS agreement. Under the European Patent Convention (which establishes the European Patent Organisation (EPO) and has 38 Contracting States including the 27 EU Member States and the UK) and the EU Biotech Directive, seeds and plants are only partially excluded from patentability.

Patents can be granted on traits or genetic sequences. In addition, the EPC and the EU Directive only exclude seeds and plants derived from essentially biological processes or individual plant varieties from patentability. But “essentially biological processes” are not defined in detail. This has led to patents being granted by the EPO, on plants with traits derived from random mutations or naturally occurring gene variations. As a result, a single patent can affect many varieties.

Together, these overlapping legal frameworks have created a dense and difficult-to-navigate patent ‘thicket’ with significant consequences for plant breeding and seed markets in Europe.

The scope of protection

Internationally, what is referred to as the “scope of patent protection” details which monopoly rights and prerogatives are granted to patent holders. In most cases, patents on plants confer “absolute patent protection”, which applies to all plants with the patented trait and products derived from them.

In Europe, the scope of protection for plant-related patents has been slightly adapted, with minor exemptions allowing farmers and breeders to use the invention in very specific circumstances, although these uses may be subject to the payment of license fees. Crucially, it is not possible to commercialise a new variety with a patented trait without the permission of the patent holder.

Under the EPC, plants created using new genetic engineering techniques would be patentable if they are considered “novel” and “inventive” by the EPO. Therefore, a looser regulation and an increasing amount of NGT plants on the market would also mean an increase of patented plants and seeds.

Multiple layers, broad claims

When it comes to new GMOs, there are even more layers of patents relevant to breeders and farmers.

Firstly, there are foundational patents for the new GMO technologies, which will require a licence from all users of the processes. These foundational patents shape the conditions under which the technologies themselves can be accessed, often independently of their specific application.

The second layer concerns patents on specific applications of new GMOs, including their use in agriculture. These intellectual property rights are numerous, as the research in our briefing and other reports shows. A search for key words such as “Crispr” yields more than 35,000 results – a stark illustration of the density of claims that breeders and farmers may need to navigate.

A third layer of patents are the claims on specific traits or sequences. The claims granted on such patents are often very broad, owing to the so-called process-by-product patents. These claims extend to plants inheriting the gene variants, with subsequent impacts on plants obtained through different breeding techniques, whether NGT or not (see No Patents on Seeds!, 2023; (Testbiotech, 2023).

This means that patents associated with NGTs may reach far beyond the use of the patented technique itself, blurring distinctions between different breeding pathways.

Expanding market control

In general, patents increase the market power of those who hold them.

Within the seed market, according to research by the ETC Group, there is already intense concentration, as only three multinational corporations with foundations in chemicals and biotechnology, control over 50% of the global seed market.

Unlike smaller seed producers, these corporations also have the considerable financial resources needed to control, apply and enforce patents.

In this context, patents function not only as incentives for innovation, but also as strategic assets for maintaining control in an already concentrated market.

Even where there is no direct exclusion, the legal uncertainty created by overlapping patent claims can push small and medium sized breeders out of the market, restrict farmers’ access to new varieties, and disadvantage agricultural systems that depend on locally adapted or low-input varieties, such as organic.

Increased market monopoly and a system of absolute product protection also means that patent rights, theoretically at least, extend to the food we eat, ultimately leading to increased food prices.

No solutions in sight

The patent thicket becomes even more dense in light of proposed regulatory reform.

As of December 2025, the EU institutions have agreed on a draft text on loosening regulations for NGTs – without limiting patents on new GMO plants.

Instead, the draft includes a set of limited provisions that address symptoms of the patent problem rather than its structural causes.

Amongst these is some provision for slightly increased transparency – a measure that does not solve the challenges for small scale breeders, who cannot afford to access such licences or complex legal research and disputes.

The agreement also includes a voluntary code of conduct for patent holders and licensing platforms, reviews of the developments in a technical working group, and a reference to a limited research exemption for breeders, which does not allow the commercialisation of varieties in which patented material has been used.

Fundamental questions unanswered

The scope and reach of patents in the plant breeding sector is expanding at the same time as other regulatory safeguards and constraints are relaxed.

This is not a minority or ‘outlier’ concern. As a joint position paper by German farmers and religious organisations shows, many stakeholders with diverging views on new GMOs agree on one general point: they oppose patents on plants, whether produced from classical breeding or new genetic engineering techniques.

The lack of consistency, legal rigour and transparent, inclusive debate on patents risks becoming an increasingly decisive factor in shaping future plant breeding and food systems.

Rather than resolving these tensions, current policy approaches leave fundamental questions about ownership, responsibility and access to genetic diversity unresolved.

They also raise broader questions about ownership, responsibility and governance in food and farming.

Our briefing argues that European patent law ultimately needs to be revised to exclude patents on all seeds and plants. This would require changes to both the EU Biotech Directive and the European Patent Convention, making it a complex and long-term task, but one with significant implications for breeding freedom and food security.

In the shorter term, EU institutions should reconsider the current draft text on plants produced using new genetic engineering techniques, which leaves the issue of patents largely unaddressed. At a minimum, the No Patents on Seeds! proposal, which clarifies that plant-related inventions should only be patentable where genetic material has been altered directly and in ways not previously achievable through breeding provides an important starting point for action.

Without such safeguards, the new framework risks further restricting access to genetic diversity for farmers and breeders, with consequences for food security in the context of climate change, the proposed regulation for new GMOs, but a crucial form of governance in their own right.

Recognising this is an important first step towards a more informed debate about the future of seeds, breeding and food in Europe.

  • Dagmar Urban is Senior Policy Officer at ARCHE NOAH, a non-profit association dedicated to the conservation, development, and dissemination of endangered cultivated plants.
  • The Briefing on Patents on NGT Plants and Processes can be accessed here.