Patenting barley: Where does nature end and invention begin?

This EPO decision unleashed a flurry of opposition from the industry, politicians, and the media. Obviously, any brewery enjoying the exclusive use of these varieties has a competitive advantage in the marketplace – or at least, it could make plenty of money through licensing. Thus, an alliance of 40 organizations across Central Europe vigorously protested the idea that a conventionally-bred, mutated plant and the beer made from it could be called an invention! [2] An NGO called “No Patents on Seeds!” argued in a press release: “It is evident that random genetic variations do not meet the conditions of a technical invention. If patents on conventional breeding are granted, the patent holders can block or hamper access to biological diversity in a way that will make traditional breeding impossible. There will be associated consequences for plant breeding, food production, and consumers.” [3]

 

Another major concern was a growing trend that large, multi-national corporations are gaining more and more legal control over the world’s seed stock and agricultural raw materials in many sectors of food production, as evidenced by just four companies – Bayer, DowDupont/Corteve, ChemChinaSyngenta, and BASF – controlling more than 60 percent of the entire global seed market. [4] Because Heineken and Carlsberg are the second- and fourth-largest breweries in the world, respectively, some opponents of the EPO decision fear that allowing these two brewing giants to join forces, backed by their partners, would let them “achieve a dominant position in the market: together, the companies can dictate to their suppliers that they are only allowed to grow patented barley. This means the companies can earn twice – from selling the beer and from growing the barley.” [5] In other words, these companies would no longer be just breweries but also significant players in their own supply chains.

 

The EPO’s 2022 decision in favor of Carlsberg-Heineken may have been final, but it certainly did not end the controversy; rather, as more patents are filed in the field of biotechnology, it spurred a continuing line of questioning. According to the World Intellectual Property Organization, a patent is “an exclusive right granted for an invention, which is a product or process that provides, in general, a new way of doing something, or offers a new technical solution to a problem.” Adjudicating a patent for a vacuum cleaner or a chair design may not be easy, but by entering the realm of living organisms, a claimant is on a slippery slope. This is because it invokes the question, if the scientists at Carlsberg and Heineken created an “invention,” or merely new, but natural varieties. As the Düsseldorf-based law firm Kather Augenstein explains, “there are [indeed] numerous loopholes [...] [and] a lack of a clear distinction between accidental mutations and genetic engineering applications.” [6] 

Today, breeders of economic plants and animals use a hierarchy of distinct methods, with gray zones between them, as they move from the purely natural to, as some would argue, entirely unnatural.

1. At the base of the hierarchy are the landraces. They are varieties with only a single gene set, their own, unique one. They are the product of natural selection and often random mutations within a given environment. In brewing barley history, the Czech Haná and the English Chevallier are classic examples. These are clearly not patentable.

2. Next are hybrids, the result of crosses of two different varieties or species. Hybrids can occur in nature, or, as has been practiced since about the middle of the 19th century, with the help of humans. As these are entirely natural, they are also not patentable. Typical examples are Weyermann® Isaria 1924®, a cross between the two landraces Bavaria and Danubia; and Barke®, derived from several successive hybridizations.

3. Since the rise of genetics in the 20th century, our ability to identify genes and their associations with specific characteristics has risen dramatically, which has made our hybridizations much more targeted and efficient. The recent development of two disease-resistant and climate-hardy hop varieties, Tango and Titan, are fitting examples.

4. Much more controversial are the rapidly improving technologies for gene editing, which often involve the deletion of a specific gene associated with an organism’s undesirable (from a human perspective) trait, such as the production of lipoxygenase...and this is at the heart of the patentability discussion. 

5. Finally, there is no debate about the patentability of genetically modified organisms (GMOs), because in their simplest definition, they could not have been produced by nature. The offspring of a donkey and a horse, for instance, is a well-known natural interspecies cross resulting in a mule, whereas a cross between a horse and a camel would be a GMO creature, because it could not have occurred in the wild.

The 2022 EPO ruling emphasized that Carlsberg-Heineken’s development for quickly identifying conventionally-grown barley varieties optimized for brewing, is a novel process. It was based on the technology behind the “non-GMO breeding method FIND-IT, an acronym for Fast Identification of Nucleotide variants by droplet DigiTaL PCR (polymerase chain reaction).” [7] As described in Seed World, “The FIND-IT system pools and then screens large, low–mutation density variant populations [...] to identify desired traits. A screening cycle is achievable inside of 10 days. While traditional mutation libraries span about 3,000 to 5,000 plants, a FIND-IT population spans several hundreds of thousands.” [8] This article quotes Toni Wendt, one of the co-inventors of the technique, “With FIND-IT, we accessed specific mutations so quickly that we could directly test our trait-hypothesis in real plants, rather than spending time discussing which mutations might have the highest probability to meet our needs [...]. This increased our research efficiency dramatically.” [9] A technical explanation of FIND-IT can be found in the August 24, 2022 edition of Science Advances. [10]

Perhaps the most important question raised by the FIND-IT system as a mutation “identification accelerant” is the following: Is the result still just a simulation of a theoretically possible natural and thus non-patentable process or is it already a product of genetic engineering and thus a patentable “invention?” This controversy is not yet settled but wherever we ultimately draw the line will have seminal economic consequences for the entire brewing industry.

The BrauBeviale team is planning an expert session about seed patents at BrauBeviale from November 26-28, 2024 in Nuremberg.

[1] Press Release: Patent on barley and beer upheld,” No Patents on Seeds! 10. Mai, 2022
[2] “Patents on beer: The brewing companies Carlsberg and Heineken want a market monopoly,” No Patents on Beer.org
[3] Press Release: Patent on barley and beer upheld,” No Patents on Seeds! 10. Mai, 2022
[4] Marin Scotten, “Laying claim to nature’s work: plant patents grow fear among small growers,” The Guardian, 25. January, 2024
[5] “Keine Patente Auf Bier!” Website. http://www.no-patents-on-beer.org/de/hintergrund/patente-bier
[6] “Patent on Brewing Barkey: Still no clarity in the granting of bio patents,” Kather Augenstein, Düsseldorf, katheraugenstein.com
[7] “Carlsberg Research Lab invents a new ultra-fast breeding technology to develop the crops of the future,” Carlsberg Breweries A/S Presse Release, 26. August, 2022
[8] Treena Hein, “Conventional Breeding... With a High-Tech Twist,” Seed World, 12. Dezember, 2023
[9] Ibid.
[10] Søren Knudsen + 30 Authors, “FIND-IT: Accelerated trait development for a green evolution,” Science Advances, 24. August, 2022. Online: https://www.science.org/doi/10.1126/sciadv.abq2266