Genetic engineering and AI: Plant breeders fear an imminent patent disaster
Potatoes that require fewer pesticides, bananas that do not turn brown, and rice and cabbage that can survive drought.
Plant breeders all over the world will be able to make more advances like these if the European Commission’s recent proposal to deregulate gene editing technologies such as CRISPR/Cas is adopted.
At the same time, the development of AI tools is accelerating, which can quickly point to interesting genes and even predict how selected mutations will make a plant perform in the field before it even touches the soil.
Last summer, a Brazilian research team introduced a tool that, by means of data analysis and statistical models, can help with the genomic selection of sugarcane varieties. The researchers call it “Plant Breeding 4.0”, and it would be the first time that this type of prediction has been made in such complex plants as sugarcane.
Illustration: Nanna Skytte.
British startup Phytoform specialises in making plants more sustainable using artificial intelligence that looks for certain characteristics in the genetic sequences. For example, they are working on a potato variety that does not turn brown when bumped to reduce food waste.
CEO of Phytoform William Pelto tells Deutsche Welle that the algorithms can process large amounts of data much faster than humans and perhaps even understand the patterns in the DNA more efficiently.
As a third example of the rise of algorithms, a research team at Aarhus University has used artificial intelligence to predict 3D protein structures in order to be able to more precisely correct “mistakes” and thus correct diseases in the human genome. At the same time, they found that their AI and the use of so-called “base editing”—–i.e. more precise gene shears than CRISPR—also opened up for more targeted editing of plants.
Patent hunters are coming
Gene shears and algorithms are set to help plant breeders keep up with the food needs of a growing population in a world affected by climate change. And the technological advances provide fertile ground for new business.
Illustration: Nanna Skytte.
According to swissinfo.ch, which is part of the Swiss public service media Swiss Broadcasting Corporation, 21 patents on plants using CRISPR were sought in 2012, while the number had reached 2,000 in 2021.
This is where things start looking bleak for farmers and the smaller plant breeders. Because although most of them are generally excited about the new technologies and the possibility of skipping years of selection work, they predominantly see the patents as a threat.
They believe that the need to protect own breeding is well met by the European protection for plant varieties or plant variety rights (PVR), which ensure the plant breeders royalties on seeds for up to 25 years once the fully developed varieties are ready.
Patent sceptics’ fear is based on the fact that although it is not possible to patent biological processes, it is possible to patent certain technologies and inventions that, so to speak, envelop both natural and induced mutations in the plant genes, Rasmus Lund Hjortshøj explains.
He is a plant breeder at Sejet Planteforædling in Horsens, which breeds cereals and has an annual turnover of DKK 60–70 million, and he is also a member of the standing Committee for Intellectual Property and Breeder’s Rights (CIPR) of the European industry association for plant breeding and seeds.
“If you can patent the selection of certain gene mutations and call it a technical development, it really just comes down to using an AI to look for certain genes and taking patents based on the AI calculations. If you know something about the subject and have enough money, all you need is a good computer and access to databases to seize a lot of characteristics,”' he says.
Patents before cultivation
Rasmus Lund Hjortshøj fears that the money will therefore end up with AI startups and huge companies, with increased monopolization as a result.
Furthermore, he hates that the patents also function as a kind of expensive “football card”, which you must have in order to be able to tinker with other patented characteristics.
According to Rasmus Lund Hjortshøj, the European Patent Office (EPO) adjusted the wording of one of the patent rules a few years ago, so that it became clearer that a patent presupposes a real technical intervention.
Illustration: Nanna Skytte.
“But if you can describe the plant chemically and make sure to avoid the words ‘crossing’ and ‘selection’, you can still take out a patent, even if you get the seed directly from the gene bank,” he says.
The European Commission acknowledges the challenge, and in a 2021 working document preceding the proposal to exempt gene editing technologies such as CRISPR from the full GMO safety package, they described that there are divided opinions among the member states on patents and new gene editing techniques.
Some countries welcome the patents as a necessity to maintain innovation and competitiveness, while several others express concern about whether the patents limit the availability of the new technologies and the genetic material for plant breeders and farmers.
An EU official has confirmed to the media Euractiv that the GMO patent rules from 1998 will continue to apply, but that an analysis will be made of the importance patents seem to have for the competitiveness and plant breeders’ working conditions—including whether the interpretation of the biotech directive requires an adaptation. The results of this analysis will be presented in 2026.
Carlsberg: Patents are important
Carlsberg is one of the companies that has several plant-related patents—patents that the European organization No Patents on Seeds has been trying to overturn at the EPO for years.
The cases are all about mutations in barley, and the complaints have led to a partial restriction, so that the patents now only cover changes in specific bases and not entire genes.
Carlsberg has been allowed to keep the patents in this form for the time being, as according to Birgitte Skadhauge, it was assessed as being very unlikely that this mutation would have appeared in nature by itself without technical intervention, and she is pleased with the outcome.
Illustration: Nanna Skytte.
“Patents give us the opportunity to run a financially healthy business, because we spend a lot of money on research and development, and it’s not like others can’t refine our barley further,” Birgitte Skadhauge says.
“Our aim is also to help others towards more climate-friendly varieties, and we have signed a contract with several breeders, who can work further with the characteristics according to standard practice in the breeding industry with a shared potential variety licence. This means that all parties can benefit from the new varieties,” she says.
Carlsberg has not used CRISPR, but has developed its own method, FIND-IT (Fast Identification of Nucleotide variants by droplet DigITal PCR), which can help identify different crop and microbe varieties that could potentially contribute to increased quality or better growth under different environmental conditions.
Carlsberg itself has used the technology to screen for new characteristics in large barley libraries with more than 500,000 barley lines.
“The method is based on the knowledge of barley we have built up since we were founded in 1847, and we will also soon be ready with the entire hop genome,” says Birgitte Skadhauge, who does not believe that this will lead to a large number of new patents.
“They can cost many millions to take, so it’s not something we just do on a whim—we consider it carefully,” she says.
Thor Gunnar Kofoed, vice-chairman of the Danish Agriculture & Food Council, also sees many good things in patents for biotech companies, but strongly believes they should stay away from the fields.
He believes that it is pure greed if one—in addition to having plant variety rights—also takes out a patent.
“Nature works in such a way that it also becomes resistant to the resistance we create. And then something new is needed again if we are to secure food for several billion people. Plant breeders and farmers should have more freedom to fight that battle,” he says.
