Developing a new plant variety requires a lot of time and money. Depending on the variety, it can take around ten to fifteen years to bring a new plant variety to the market. The expenses incurred in the development process are financed through the sale of the seed. Given that plant seeds can be simply ‘copied’ through propagation, a suitable protection system is needed. Plant variety protection and patent law, in particular, serve this purpose. Plant variety protection recognises breeding efforts and protects a plant variety as a whole. Patent protection, on the other hand, protects a technical invention, for example a new or innovative characteristic of a plant or a new technique used in plant breeding. In the following sections, you will find information on patent protection in relation to plant breeding.

• What can be patented?
• Special provisions
• What patents exist in this field?
• How can I search for patents?
• Patents and new genomic techniques

Plant characteristics or a new technique used in plant breeding can be patented, as long as they fulfil the patentability requirements. This means that there must be an invention involved, which is 1. new, 2. not obvious and 3. applicable in industry (Art. 1 Patents Act). New plant characteristics can be patented as long as they are produced by microbiological or other technical processes. A plant variety as such, however, cannot be protected by a patent in Switzerland (Art. 2 para. 2 let. b Patents Act). In addition, there is a ban on patents for essentially biological processes, such as crossing or selection, and the plants obtained by such processes (Art. 2 para. 2 let. b Patents Act). Lastly, naturally occurring sequences or partial sequences of genes cannot be patented (Art. 1b para. 1 Patents Act).

There are a great number of such ‘new plant breeding techniques’, some of which contain clearly technical steps which can be patented, as long as they fulfil the patentability requirements. However, whether such a technical step of a new breeding technique can be patented or not needs to be determined on a case-by-case basis.

Both plant variety protection law (Art. 6 let. c Plant Varieties Protection Act) and patent law (Art. 9 para. 1 let. e Patents Act) provide for a breeder’s exemption: in both cases plant breeders are allowed to continue to breed freely. However, in contrast to the breeder’s exemption in plant variety protection, the products of a patented invention cannot be brought to the market without the patent owner’s consent. The innovation can be quickly replicated by technical means, which is why unrestricted marketing would make it impossible to amortise the research costs. Consequently, a licence must be obtained for a new variety that possesses a patented characteristic (and usually a licensing fee must be paid).

Switzerland also has a special provision in the field of intellectual property rights specifically for farmers, known as farmers’ privilege. Unlike in other countries, this was introduced in Switzerland in both the Plant Varieties Protection Act (Art. 7) and the Patents Act (Art. 35a): farmers who have acquired protected material of certain plants defined by law may propagate, on their own farm, the product from this material cultivated on their own farm. Contractual agreements which limit or revoke the farmers’ privilege in the area of food and feed production are null and void.

The Patents Act also stipulates that the effects of a patent do not extend to biological material that is obtained in agriculture due to chance or because it is technically unavoidable (Art. 9 para. 1 let. f Patents Act). In other words, agricultural businesses are allowed to use protected plant characteristics that have been crossed by chance (e.g. by wind or animals) for further propagation without any limitation.

Under certain conditions, plant breeders who cannot obtain or use a plant variety right without infringing an earlier-granted patent may have a right to be issued a licence from the patent owner to the extent required to obtain or use the plant variety right (Art. 36a para. 1 Patents Act). An example would be a product patent for plants that ensures that a plant variety right holder can only market a variety of theirs which has the traits of a patented plant (such as a gene that gives rise to a particular resistance to pests) with the patent owner’s consent. The patent owner may make the grant of a licence conditional on the owner of the protected variety granting them a licence to use their plant variety right (known as a cross-licence).

Based on research conducted by the IPI, we estimate that there are around 250 patents in effect in Switzerland which may affect plant breeding. Most of the varieties affected by patents relate to types of vegetables, particularly lettuce. However, it is important to note that these patents also include those in the field of genetic engineering. Due to the current moratorium on genetic engineering in Switzerland, such patents are of little relevance in practice.

A plant variety per se cannot be patented. There are, however, cases where a variety is not only protected as such (under plant variety protection), but it also contains a technical innovation that is protected by a patent. This invention (protected by a patent) is a technical element that can be applied in various plant varieties and is therefore not specific to one. The link between the patent and the variety is therefore not obvious and is not established in the patent register or in the plant variety register. However, patent specifications sometimes indicate the plants or pests to which the respective invention applies (e.g. a new resistance for potatoes against the Colorado potato beetle). In such cases, it is possible to search for any patents using the genus name of the plant, for example. In addition, there are a range of methods used in the plant breeding industry to find relevant patents (see the section entitled ‘Specific search and information services in the field of plant breeding’). Finally, there is the option of ordering a professional patent search. The IPI provides its own search service: https://www.ige.ch/en/services/searches/patent-searches-in-general/assisted-searches.

You can find general information about searching for patents on our website: https://www.ige.ch/en/services/searches/patent-searches-in-general.

You can search for patents from all over the world using the European Patent Office’s free search tool Espacenet. It’s possible to limit your search to various patent classes (e.g. classes A01H6/00 and A01H5/00 for flowering plants).

There are several other search and information portals for plant varieties.

PINTO (Patent Information and Transparency On-line) is a database provided by the European Seed Association Euroseeds. It increases transparency with regard to plant varieties which fall within the scope of patents or patent applications. PINTO allows you to search for relevant patents based on a plant variety (see search example, PDF). Most of the major seed companies now list their patents in PINTO (including Syngenta, Monsanto, BASF, KWS, Du Pont and Bejo Zaden).

In the area of vegetable seed, the industry has created an International Licensing Platform for Vegetables (ILP). It regularly provides an up-to-date overview of relevant patents organised by producer. In addition, the platform can be used to obtain a licence simply and for a fair and reasonable price.

In the arable farming sector, the Agricultural Crops Licensing Platform (ACLP) was launched by ten European plant breeding companies at the beginning of 2022. According to the website, the aim is to ensure that European breeders have access to patented traits. Members of the platform also agree to list their relevant patents in the PINTO database.

With its Traitability Platform, seed producer Syngenta has created a standardised licensing process. It is also possible to search for relevant Syngenta patents using keywords.

New genomic techniques (NGTs), such as the genetic scissors CRISPR/Cas9, have the potential to greatly accelerate the breeding process and make plant varieties more resistant against pests, diseases and climate change. NGTs are new technical processes that can be used to obtain reproducible and industrially applicable characteristics in plant varieties. Both the processes themselves and the resulting plant characteristics can be patented.

The European Union (EU) and Switzerland are examining new approval rules for certain NGTs and the resulting plant varieties. This has triggered debate about the potential impact of intellectual property (IP) rights (especially patents) on plant breeding and agriculture. Consequently, the IPI commissioned two external studies and carried out a series of analyses itself to gauge the potential impact.

The results of these studies show that potential approval of certain NGTs in the EU and Switzerland would not be expected to have any direct impact on plant breeding and agriculture in terms of IP rights. In fact, the contrary is true: the Swiss patent system offers a beneficial environment for plant breeding and agriculture. Assuming that the number of patents in the area of plant breeding will rise if NGTs and the resulting plant varieties are approved, it is nonetheless important to ensure transparency regarding patents of plant variety characteristics (see «Increase in transparency in the area of plant breeding»).