Answer given by Ms Kyriakides on behalf of the European Commission
The Commission proposal on plants obtained by certain new genomic techniques (NGTs) concerns the release and placing on the market of plants obtained by these techniques but does not regulate intellectual property issues.
Patent protection of such plants is governed in a separate piece of EU law, the provisions of which are reflected in the European Patent Convention (EPC).
As clarified in the Commission Notice from 2016, under the provisions of Directive 98/44/EC plants obtained by essentially biological processes are excluded from patentability.
This has been included in the implementing rules of the EPC and confirmed in opinion G 3/19 (‘Pepper case’) of the Enlarged Board of Appeal of the European Patent Office (EPO).
Applying the exclusion, patents on plants produced by technical processes, including on NGT plants, cannot cover similar plants obtained by conventional breeding. This is reflected in the examination practice of EPO and can be relied upon in proceedings before competent courts.
To address possible disagreements, plant breeders can be expected to keep records on breeding material and technique used to produce the conventionally bred plant.
The Commission recognises that the legal framework needs to be balanced, safeguarding inter alia breeding and cultivation of unpatented conventional and organic crops.
Thus, the Commission will assess, as part of a broader market analysis, the impact that the patenting of plants and related licensing and transparency practices may have on innovation in plant breeding and on breeders’ access to genetic material and techniques, and report on its findings in 2026, which will identify possible challenges in the sector and serve as basis to decide on any possible follow-up actions.
-  Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions. OJ L 213, 30.7.1998, p. 13-21.
-  Commission Notice on certain articles of Directive 98/44/EC of the European Parliament and of the Council on the legal protection of biotechnological inventions. C/2016/6997, OJ C 411, 8.11.2016, p. 3-14.
-  https://link.epo.org/web/G_3-19_opinion_EBoA_20200514_en.pdf
-  COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS Ensuring resilient and sustainable use of EU's natural resources (COM(2023) 410 final).