Agriculture stands at a crossroads. Traditional farming methods, tasked with feeding a growing global population, have contributed to climate change, deforestation, and biodiversity loss. With increasing demands on food production and mounting environmental pressures, the challenge is not the land itself, but how we use it. This article focuses on the ways in which biotechnology is being harnessed to improve the sustainability of an agricultural industry facing unprecedented demands.
The sustainability imperative
Reforming food production is now a scientific and policy priority. The European Union’s ‘Farm to Fork’ strategy, part of the European Green Deal, aims to make food systems fair, healthy, and environmentally sustainable. Food systems account for nearly a third of global greenhouse gas emissions and are a major driver of biodiversity loss. Farm to Fork sets ambitious targets: reducing pesticide and fertiliser use, cutting food waste, and increasing organic farming, all while ensuring food security and economic viability for farmers. Crucially, the strategy embraces innovation and biotechnology as tools to accelerate this transition, helping farmers grow more with less and restore the land on which they depend.
Applications of biotech in agriculture
At its core, ‘agribiotech’ uses molecular biology tools and techniques to improve plants and microorganisms for farming. For example, identification of genetic markers can optimise crop breeding to select for desirable traits. Furthermore, beneficial bacteria or fungi can be harnessed to improve soil health and help plants absorb nutrients more efficiently. Moreover, genetic modification and gene editing (e.g., using CRISPR) can make crops more resistant to pests or more tolerant to extreme weather.
In the following sections, we will look at examples of such techniques being deployed for doing more with less: less land and water, and fewer fertilisers and pesticides, all in line with the goals of the Farm to Fork strategy. We shall then consider how IP rights can be used to protect such innovative tools, techniques and plant varieties.
Boosting growth and yields
Modern crop breeding and advances in management practices achieve increases in yields of about 0.8–1.2% annually, just ahead of the rate of population growth. Agribiotech offers more dramatic improvements. For example, modifying a single gene in rice (DREB1c) has increased yields by up to 40%. Other innovations include enhancing photosynthesis by introducing new chlorophyll variants that absorb light over a wider range of wavelengths than chlorophyll naturally found in plants, or additional enzymes that reduce carbon dioxide loss through photorespiration. Such methods harness and improve naturally occurring processes, such as photosynthesis, to achieve greater plant biomass.
Reducing fertiliser and pesticide use
Improving nutrient use efficiency can cut fertiliser needs. This can be achieved by increasing the expression of genes involved in nutrient uptake or by utilizing plant-associated microbes. For example, phosphate-solubilising microorganisms make soil nutrients more accessible, while engineered nitrogen-fixing microbes reduce reliance on synthetic nitrogen fertilisers. In pest management, transgenes such as cry genes from Bacillus thuringiensis produce insecticidal proteins, killing common pests upon ingestion, reducing the need for chemical pesticides.
Building resilience to stress
Abiotic stressors like heat and drought cause significant crop losses. Genomic approaches identifying molecular markers associated with stress tolerance have sped up the breeding of more robust crops. Furthermore, identifying ways of maintaining photosynthetic efficiency in plants in extreme climates ensures ongoing crop yields as temperatures continue to rise. For example, introducing the molecular chaperone Rubisco activase from heat-tolerant thermophilic cyanobacteria into plants has enabled continued efficiency of fundamental photosynthetic processes even under high temperatures. Disease resistance can also be enhanced using transgenic plants that include key disease-resistance genes or engineered bacteriophages that target plant pathogens.
Minimising agriculture’s footprint
Vertical farming – growing plants in stacked layers indoors – minimises land and water use and reduces the carbon footprint of transporting produce. Agribiotech helps adapt crops for these systems by selecting for traits like compact growth, ability to grow under artificial lighting, shorter harvest cycles, and efficient nutrient and water utilisation in soilless environments. These innovations make high-yield, low-footprint urban agriculture possible.
Protecting agribiotech innovations
There are a range of intellectual property considerations in the area of agribiotech. For example, inventions related to plants, and certain plants themselves, can be protected by patents at the EPO but certain exceptions apply.
Subject-matter directed to specific plant varieties is not patentable at the EPO, which is in line with the approach followed in many other jurisdictions. Furthermore, following Rule 28(2) EPC, the Enlarged Board of Appeal has established that plants that are exclusively obtained by ‘essentially biological’ processes are not patentable (in decision G 3/19 (‘Pepper’)). A process is ‘essentially biological’ if it consists entirely of natural phenomena such as crossing or selection. Accordingly, transgenic plants and mutants that are obtained by technical means such as mutagenesis or gene editing remain patentable so long as other patentability requirements are met (e.g., novelty, inventive step, sufficiency and industrial applicability). Similarly, processes for selecting desirable traits using genetic molecular markers could be patented, so long as the claimed subject-matter does not amount to merely an essentially biological process.
These exceptions to patentability are applicable to plant varieties or essentially biological processes, but these do not apply for all agribiotech innovations. For example, inventions directed towards specific nucleotide and/or amino acid sequences of modified plant proteins/enzymes, microorganisms per se and/or microbial communities (e.g., those useful for improving plant growth), could be patentable provided they meet the other requirements for patentability.
Beyond patents, alternative or additional forms of protection may be available for some agribiotech innovations. As noted above, patent protection is ruled out for subject-matter concerning specific plant varieties. However, protection for plant varieties may be available in the form of community plant variety rights in the EU (or plant breeders’ rights in the UK).
Extending exclusivity of agribiotech inventions
Supplementary protection certificates (SPCs) are an additional form of protection that serve as an extension to a patent right. These are available for patented subject-matter that concerns ‘plant protection products’ that have also received regulatory approval following scrutiny by the relevant EU/UK authorities (much like SPCs that may be available for medicinal products that have received a marketing authorisation). In this way, the additional term offered by SPCs aims to offset the loss of effective patent term for plant protection products that is expected to occur due to the potentially lengthy testing such products require prior to obtaining regulatory marketing approval.
Plant protection products include active substances (e.g., microorganisms and viruses) that preserve plant products, protect plants or plant products against harmful organisms, destroy undesirable plants or parts of plants, or influence the life processes of plants (such as growth regulators).
Broadly, SPCs can extend a patent right by up to five years, but the scope of the protection typically extends only to the product (and uses thereof) covered by the authorisations to place the corresponding plant protection product on the market by the regulatory authorities.
Looking beyond IP
Given concerns around the potential release of genetically modified organisms (GMOs) into the wild, such plants/plant-derived products are subject to regulatory scrutiny. For instance, GMO-specific legislation enacted in the EU places limits on the cultivation of GMO plants, and imposes traceability and labelling requirements for GMO-based food/feed products, potentially limiting their widespread use. Such GMOs include transgenic plants with genetic material from other organisms and plants produced by new genomic techniques (NGT) like CRISPR, which use precise gene editing without transgenes.
That said, unlike transgenic plants that incorporate foreign genes, NGT plants may be virtually indistinguishable from plants produced by conventional breeding techniques, so there is a move towards declassifying NGT plants as GMOs and relaxing regulatory requirements for NGT plants in the EU and the UK. For instance, recent guidance under the Genetic Technology (Precision Breeding) Act and Regulations in England, and anticipated regulatory reforms for NGT plants in the EU, aim to reduce the administrative burden and encourage use of NGT plants and products while maintaining safety standards.
Accordingly, IP in this area of agribiotech may become even more valuable in the future.
Conclusion
Biotechnology is providing powerful tools to farm more wisely, waste less, and grow more sustainably. From generation of drought-resistant crops to enablement of vertical farming, agribiotech is helping rewrite the rules of agriculture, making it more efficient and in harmony with the planet. The soil is ready, the science is here, and the time is ripe to cultivate a future where innovation and sustainability grow side by side. Intellectual property will continue to play a critical role in driving innovation in this field.