Report published in May 2026
Summary
A precedent-setting decision on a KWS patent claiming conventionally bred maize with improved digestibility clearly demonstrates how the European Patent Office (EPO) is systematically circumventing existing prohibitions on the patenting of plant varieties and plants obtained from conventional breeding.
The KWS patent was the first patent granted after the Rule 28 (2), Implementing Regulations (IR), of the European Patent Convention (EPC) came into force. This Rule excludes patents on plants obtained from essentially biological processes (conventional breeding). The patent, which claims naturally occurring gene variants and their use in plant selection, was nevertheless granted by the EPO. It further claims plants selected through the use of the gene variants as inventions, and includes all maize plants with the described traits for silage production (animal feed).
No Patents on Seeds filed an opposition against the KWS patent, as patents on plants obtained from conventional breeding through crossing and selection are prohibited in Europe. However, the EPO rejected the opposition. It is a decision that clearly shows how the EPO is classifying naturally occurring genes as technical inventions. Even the plants selected using these genes are regarded as technical inventions. In result, the patent covers exactly what is excluded by the law.
To conceal the fact that the plants and their traits were simply selected from existing breeding populations, KWS also claims the rights to plants whose traits are ‘reproduced’ through the use of NGTs. However, in this instance such methods were not used and are not even necessary.
Further research suggests that this patent is not an isolated case. In fact, more and more patents are being granted on plants and natural gene variants that have not been obtained from new genetic engineering techniques, but are merely selected from existing populations. In 2025, around 40 additional patent applications with similar claims were published.
Despite many statements to the contrary, this development plainly shows that Rule 28 (2) of the Implementing Regulations (IR) of the European Patent Convention (EPC) does not effectively restrict patents on conventionally bred plants. The rule was introduced into the EPC in 2017 on the initiative of the EU. However, regardless of the express intent of the legislator, there is good reason to fear that hundreds of patents on conventionally bred plants and the use of naturally occurring gene variants will be filed and granted in the coming years.
Developments of this kind serve to hinder, or even block, access to biological diversity essential for breeding disease-resistant plants that can adapt to climate change. Small and medium-sized breeding companies will be negatively impacted the most, even if they do not intend to use any form of genetic engineering.
In 2024, the European Parliament called for a ban on these kinds of patents being granted and, at very least, a restriction on their scope as part of its position on the proposed regulation on plants obtained from new genetic engineering (or new genomic techniques, NGT).(1) The German Agriculture Ministers’ conference in March 2026 also supported these demands.(2) Moreover, recent representative opinion polls conducted in Germany, France, Italy, the Netherlands, and Poland show that the public also sees patents on seeds as a major problem. Around 80% of the public are rejecting such patents.
In fact, effective bans and restrictions in patent law are absolutely necessary: Significant negative impacts on plant breeding could result if respective patents are not banned or effectively restricted in future. These particular aspects are also emphasized in a report published by the European Commission in December 2025.
However, the report also indicates that the Commission does not plan to take effective measures to ban or restrict patents of this kind. It is therefore crucial that the European Parliament does not abandon its 2024 position.
This is the backdrop against which we are presenting our proposed changes to patent law. Our proposed changes are consistent with both European Parliament demands and the existing legal framework. If these changes are not adopted, the proposed new EU regulation on the deregulation of NGT plants must be rejected.
1 https://www.europarl.europa.eu/doceo/document/TA-9-2024-0325_EN.html
