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.
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).
|If, for example, a breeder modifies wheat by means of a genetic engineering process to make it resistant to mildew, the breeder can patent this process and/or the new characteristic ‘resistance to mildew’. If, however, the breeder has given the wheat plant this characteristic by means of crossing and selection, then neither the method nor the plant characteristic can be patented because the essential process used is biological.|
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).
|In the above example of genetically modified wheat, competitors are allowed to continue to breed using the original breeder’s protected variety. However, as long as the wheat plant possesses the characteristic patented by the original breeder, competitors are not allowed to bring it to the market without the consent of the original breeder or patent owner.|
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.
Harmonisation and partial revision of guidelines as of 1 July 2023
Conference on Intellectual Property & Sustainability at the University of Geneva
Symposium: "Best practices in the fight against counterfeiting & piracy – NFTs not your cup of tea? Well, they should: NFTs as a new way of fighting counterfeiting and piracy"