Transparency in the area of patent rights in plant breeding

Bern, 22.05.2024 - On 22 May 2024, the Federal Council submitted a draft on the revision of patent law for consultation. This provides for the establishment of a clearing house to increase transparency regarding patent rights in plant breeding. The consultation procedure will run until 12 September 2024.

The proposed clearing house is an online platform operated by the Swiss Federal Institute of Intellectual Property, which would enable breeders to check quickly and easily whether a variety is affected by a patent.

Currently, developing a new plant variety can take up to 15 years and can be very costly. Plant varieties that are already available on the market are used to breed new varieties. Some have patented characteristics such as resistance to a particular disease. If the newly developed variety has this patented feature, it can only be marketed with the prior consent of the patent owner, usually in exchange for a fee.

It is therefore important for breeders to be able to find out whether a plant variety has a patented characteristic before they spend years and large sums of money on developing a new variety. Analysing the patent literature in the area of plant breeding is challenging, not least because the patent specifications do not usually include any variety names. However, as modern plant breeding becomes increasingly technical, patents and patent literature searches are rapidly gaining in importance in this innovative area.

Clearing house would facilitate searches

The proposed clearing house would serve as an intermediary between breeders and patent owners. The former could use the platform to publish the varieties they wish to use for breeding, and the latter could then come forward if their intellectual property rights were affected.

The online platform would increase transparency for all stakeholders - breeders, biotechnology companies, SMEs and multinational corporations - regardless of whether or not they own patents. This balanced solution would also avoid one party having to do all the work to achieve greater transparency.

Use of the easily accessible online clearing house would be voluntary for breeders. They could check whether a variety is affected by a patent and, on this basis, decide whether they wish to use it or opt for another one. Patent owners could use the clearing house to prevent a breeder from using their invention without their consent. It would also give them the opportunity to expand their activities in the area of voluntary licensing.

The clearing house is a forward-looking solution because it would also provide breeders with the necessary transparency should the number of patents increase as a result of the possible approval of new genetic engineering techniques in plant breeding.

The preliminary draft revision of the Patents Act that has been submitted for consultation implements the requests set out in motion 22.3014 ‘More transparency in the area of patents in plant breeding' of the Science, Education and Culture Committee of the Council of States.

Address for enquiries

Felix Addor, Deputy Director General and Head of the Legal & International Affairs Division, Swiss Federal Institute of Intellectual Property, T +41 31 377 72 01, felix.addor@ipi.ch