Dn the 1990s, the development of biotechnologies was accompanied by lively debates on intellectual property applied to living matter. Should the innovation represented by the identification of a gene and its functions or its introduction into a plant benefit from this particular protection regime that is the patent of invention? A legal, philosophical and economic discussion then took place in the public space on the patentability of living things and the danger of seeing a few large firms controlling the biological diversity of cultivated plants.
This debate should be reactivated. In July, the European Commission presented a project to deregulate varieties resulting from “new genomic techniques” (NGT, for New Genomic Techniques) – sometimes called “new GMOs”. These new methods make it possible to intervene on the genome without necessarily adding foreign genes, and promise to confer new properties on cultivated plants – properties which public authorities hope will contribute to the agroecological transition (tolerance to drought, less use of pesticides, disease resistance, etc.).
But the question of the nature of the property titles which can be deposited on these plants has taken a back seat, due to timing: the Brussels executive has proposed to largely deregulate the NGT, but without proposing new methods of protecting the intellectual property. This major question has been postponed until the next legislature, probably around 2026.
The crucial question of intellectual property
This is putting the cart before the horse. Opening the way to NGTs without details on the level of protection from which they will benefit arouses concern, not only from opponents of plant biotechnologies (farmers’ movements, environmental defense associations, etc.) but also from small and medium-sized businesses ( SMEs) seed companies. The conditions for the intellectual protection of these new plants could weaken this industrial fabric, but also ultimately determine the real uses that will be made of these new technologies.
The paradox is that the Commission proposes to consider these “new GMOs” as conventional varieties (without risk assessment, without traceability or labeling) on the grounds that NGTs allow genome editing so fine that the result has no reason. to be distinguished from varieties obtained by classical selection methods. However, the European Patent Office declared in August that the framework defined by the 1998 directive on the legal protection of biotechnological inventions would apply to NGTs in the absence of an overhaul of European law on the subject – that is- i.e. not before 2026. By then, therefore, the NGT varieties could be patented.
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