Report published in October 2026
Summary
The European Patent Office (EPO) is still granting patents on conventionally bred plants that allow industry to circumvent the new Rule 28 (2). This new Rule prohibits patents on plants obtained from crossing and selection.
The EPO, however, continues to grant exclusive rights to plants and traits that should be freely available for plant breeding in Europe. Currently, patent holders are using specific phrasing to bypass the new Rule 28 (2). There are several patterns of claims, which are summarised below:
- Identification of gene variants in existing plant populations and the selection of respective plants.
- Analysis of plant composition.
- Growing plants from seed.
- Reproducing pre-existing genes through random mutagenesis or new genetic engineering (NGTs).
This report considers four such patents on maize, broccoli, tomato and endive and explains general patterns behind how Rule 28 (2) is circumvented by including further examples. Once a patent is granted, the holder gains exclusive rights to the plants and seeds originally developed through conventional breeding or found in natural populations. These rights include most uses of such plants for breeding. These patents therefore contradict the legislative intent of the European legislator: conventionally bred plants and their traits should be freely available for plant breeding under the European Plant Variety Protection (PVP) law. This intention is also reflected in the provisions of the European Patent Convention (EPC).
Access to biological diversity needed for conventional breeding must be considered a common good. If access is blocked or hampered, the future of small and medium plant breeders as well as agrobiodiversity and food production will be under threat. Therefore, European policy makers have to act urgently, by taking into account the legal solutions proposed in this report.