Patents make surprise appearance in UK consultation on precision breeding framework
Jocelyn Bosse
Patents make surprise appearance in UK consultation on precision breeding framework
Jocelyn Bosse Friday, October 10, 2025 - DEFRA, genetic modification, Jocelyn Bosse, new genomic techniques, patents, plant varieties
Yesterday, the UK Department for Environment, Food & Rural Affairs (DEFRA) published the results of their consultations about a proposed Precision Bred Plant Variety List for England. The feedback showed support for labelling to indicate the precision bred status of seeds and other plant reproductive material, and intriguingly, many responses also advocated that the variety list should provide transparency about patents, such as a requirement to disclose "any existing or pending patents".
A Kat enjoying seasonal vegetables (or fruits,
if you ask a scientist).
Image by Spike Summers via Pixabay.
What is Variety Listing?
The seed trade is heavily regulated in Europe. These laws are meant to protect food security by ensuring that seeds meet quality standards, such as being free from pests and diseases, as well as providing accurate information to growers about the propagating material they purchase. These rules are completely separate from plant variety rights (PVRs), but have similarities.
There are two main aspects of these laws: registration and certification. Registration is used to identify the plant variety, based on testing for distinctness, uniformity, and stability (i.e., the same DUS criteria as for PVRs). For agricultural crops, the variety is also tested for its "value for cultivation and use" (VCU), which focuses on crop production and performance characteristics like yield and disease resistance. In this process, the variety must be given denomination, which will be its permanent name so that others can accurately identify the plants that they buy (see IPKat here).
Certification involves inspections by public authorities to guarantee the identity, health, and quality of seeds and propagating material before marketing. For example, they check samples for "purity" to make sure they actually contain enough seed (as opposed to being heavily contaminated with chaff or soil) and are seeds of the approved variety (i.e., have sufficient varietal identity and varietal purity).
Once registered, the variety will appear on the National List, and if that country is an EU member state, it will automatically be included on the EU Common Catalogue (comprising separate lists for agricultural plants, vegetables, forest trees, fruits, and grapevines), which means it will be authorised for marketing across the EU. The system has received criticism for potential negative impacts on biodiversity, since it can prevent the marketing of heirloom or farmer's varieties that don't fully meet the DUS criteria. This led to the creation of an exception for Conservation Varieties, which are allowed to be marketed on the basis of being traditionally grown in certain regions or adapted to local conditions.
The variety listing rules date back to the 1960s and are now spread across 10 Directives, so the EU currently aims to increase the clarity and coherence of the framework by adopting a single Regulation on the marketing of Plant Reproductive Material (PRM). Alongside the harmonisation of the rules, there is also discussion about changing the VCU criteria to assess varieties for their value for sustainable cultivation and use.
Since Brexit, there are now two separate lists in the UK: one for Great Britain (England, Wales and Scotland) and one for Northern Ireland. Under the Windsor Framework, varieties that only appear on the EU Common Catalogue can also be marketed in Northern Ireland (but not Great Britain).
The Consultation
The DEFRA consultation relates to the implementation of the Genetic Technology (Precision Breeding) Act 2023. This England-only legislation seeks to make it easier to commercialise organisms developed through "precision breeding" technologies such as gene editing (e.g., CRISPR) and other genetic technologies if the organism could have been developed using traditional breeding methods. Following the approval of the Genetic Technology (Precision Breeding) Regulations 2025 a few months ago, the new framework for plants is meant to come into force in November.
While the Regulations were still being finalised, the Food Standards Agency and DEFRA began public consultations about their implementation of the framework. Since the precision breeding laws only apply to England, DEFRA proposed that a Precision Bred Plant Variety List for England could be created alongside the existing variety lists to facilitate the marketing of seed of precision bred plant varieties. It would only apply to agricultural and vegetable plant varieties.
From February to April 2025, DEFRA sought feedback on the impact of this proposed variety list, as well as feedback about provision of information and potential mandatory labelling of precision bred seed and other plant reproductive material. The executive summary and full summary of the responses were published yesterday (see here).
The feedback on patent transparency
Neither the precision breeding laws nor DEFRA's call for feedback mentioned patents. However, many respondents brought up the topic. Key themes from the feedback included 'Choice & Autonomy' and 'Transparency & Information Access'. DEFRA noted that certain responses followed templates (some prepared by campaign groups) that encouraged respondents to ask for details about any patents that may be relevant to the product. As part of the information provided on precision bred plant varieties, a total of 21 businesses (19 organic businesses, 10 non-organic businesses) requested "patent information" and 15 individual respondents requested "patent and ownership information". In that context, one respondent explained that:
“[The variety list] must be easily searchable by variety name, with specific technique used, introduced traits, full genetic modification details as well as any disclosure of existing or pending patents.”
The language of this response mimics the proposed text that was taken to the EU trialogue negotiations earlier this year. Readers may recall that the EU is still trying to negotiate a regulation on new genomic techniques (NGTs), but the EU Parliament threw a spanner in the works with last year's amendment to ban patents for gene-edited plants (see IPKat here). In March this year, the Polish Presidency proposed a new text that removed the patent ban and instead focused on transparency (see IPKat here), such as a requirement that if applying to register an NGT 1 plant, companies or breeders must submit information on all existing or pending patents.
As experts have noted, transparency is a laudable goal but is not easy to achieve (see IPKat here). For example, requirements to disclose relevant pending patent applications could lead to unintended confusion, since marketing authorities may lack awareness of a patent's status while making critical regulatory decisions.
Until now, the English framework on precision bred organisms was often praised for having no impact on patents. Of course, it seems unlikely that the consultation feedback about patents would lead to any changes in the short term. Indeed, DEFRA's full summary of the feedback made it clear that broader ethical concerns about the role of biotechnology in agriculture, such as corporate control of the seed supply, including through the use of patents, were out-of-scope of the consultation (as were questions and concerns about how PVRs will be granted for precision bred plant varieties, and how they will interact with patents).
Final Thoughts and Next Steps
Intellectual property has loomed large over the debates about the regulation of NGTs in Europe, so perhaps we shouldn't be surprised to see patents emerge in the conversations in the UK.
DEFRA is still working on the implementation of the precision breeding law, but has affirmed that it considered the feedback and will ensure that "information on precision bred plant varieties is transparent, accessible to all, and user friendly". Transparency will be crucial because precision bred organisms are still defined as genetically modified organisms (GMOs) in Wales, Scotland, and Northern Ireland (and in the EU). Therefore, it is crucial for growers and farmers in these nations to be able to identify precision bred seeds, as it won't be legal to grow them outside England unless they meet all the GMO regulatory requirements. Additionally, this information is crucial for the organic sector who exclude precision bred organisms from their supply chains.
Should patent applications be part of these transparency measures? The EU trialogue has prompted a lot of discussion of this topic. The debate has highlighted the challenges of requiring disclosure of patents (especially pending applications), and it would be even more complicated to entangle patent transparency with the variety listing rules. It seems unlikely that DEFRA would make such a big move. But as much as England has managed to avoid the topic of patents until now, perhaps this consultation feedback suggests that the UK government will eventually need to confront the concerns about patents and precision bred organisms - although variety listing rules are probably not the right place to do it.
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