News in the case of the paprika patent

Staple foods such as fruits and vegetables have been grown and consumed for thousands of years. Meanwhile, however, there are legal, especially patent, requirements to be observed in this regard as well. With its latest decision in the case of the pepper patent, the European Patent Office is now reigniting the debate on ethical and legal aspects of patent law in agriculture. But what is the paprika patent all about and why is it so controversial?

In 2013, the European Patent Office (EPO) approved a patent on an insect-resistant pepper plant (EP2140023) for the Syngenta corporation. The insect resistance of the pepper plant resulted from crossing a wild pepper plant from Jamaica with a commercial pepper plant and subsequent selection of the common offspring. The company learned about the resistance through a freely accessible database. The granted patent covers the pepper plants themselves, their use, their fruits, their seeds and all breeding steps. Syngenta thus claimed both the cultivation and harvesting of the plants.

In the following year, an alliance of various NGOs, breeders, seed initiatives and farmers’ organisations filed an objection against this patent grant. They criticised that the crossing of the pepper plant had been done in the conventional way and with the help of a freely accessible database, and that the insect resistance was thus a naturally occurring genetic trait and not an invention of its own. Patenting naturally occurring gene traits would monopolise biodiversity and endanger access to it.

In February 2023, the patent was again confirmed by the EPO, even though such a patent is actually no longer permissible according to current case law. Since 2017, no patents may be granted for plant varieties that have been created by natural methods such as crossing and selection. Accordingly, only plant varieties that have been genetically engineered are still eligible for patent. Genetic engineering is patented, but genetic diversity and seeds are not. However, Syngenta applied for the pepper patent in 2008, well before the new legislation.

Nevertheless, the current case law continues to create uncertainty, because genetically engineered plants can in many cases also be created by classical crossing with subsequent selection. Whether the genetically engineered plants may nevertheless be patented in these cases is currently a matter of dispute. Whether and to what extent patent law in agriculture will continue to develop will be shown by future patent law decisions.