With Europe as a whole witnessing widespread drought conditions, attention is turning to the long-term resilience of food production systems.
In England, where drought is now declared across seven areas, low river levels, irrigation restrictions and reports of reduced yields have highlighted the vulnerability of crop production to prolonged periods of heat and low rainfall. While the immediate challenge for growers is securing access to water, the drought has also brought renewed focus to efforts to develop crop varieties better suited to a changing climate.
Defra’s Farming Roadmap 2050: Growing England’s Future identifies more productive, sustainable and climate-resilient crop varieties as a key part of the future of English agriculture. The government has also committed to supporting research into resilient varieties and exploring the potential of novel crops for UK conditions.
For plant breeders, however, producing a drought-tolerant variety is only part of the challenge.
According to Dr Oliver Rutt, partner and European patent attorney at intellectual property firm Boult, as demand grows for climate-resilient crop varieties, breeders need to secure and manage their intellectual property properly. Ensuring new varieties are properly protected and commercially structured is just as important as the science behind them.
“The immediate problem for farmers is water, and no variety currently in development will change the conditions they are dealing with this summer,” said Rutt.
“The drought does, however, underline how exposed crop production can be to sustained heat and low rainfall.”
Innovation alone is not enough
As investment in climate-resilient breeding programmes grows, Rutt argues that breeders need to think about ownership and commercialisation from the outset.
“For plant breeders, producing a variety that performs well in research or field trials is not the end of the process,” he said.
“Ownership has to be clear, applications need to be made at the right time, and the breeder needs a workable route through seed production, licensing and distribution if that variety is to reach farms in meaningful quantities.”
The warning comes as drought and climate volatility increase pressure on the sector to bring improved genetics to market more quickly. Yet, according to Boult, breeders can still encounter significant obstacles if legal and regulatory issues are left unresolved until launch.
“A breeder may spend years developing a variety and still encounter problems at the point of commercial launch because the ownership, protection or listing position has not been settled,” Rutt said.
Plant breeders’ rights versus variety listing
One area that continues to cause confusion is the distinction between plant breeders’ rights (PBRs) and variety listing.
Plant breeders’ rights provide intellectual property protection, allowing rights holders to control key commercial activities involving a variety, including its propagation, sale, import and export.
Variety listing serves a different purpose. For agricultural and vegetable species covered by listing requirements, varieties must be accepted onto the appropriate Great Britain or Northern Ireland Variety List before seed can be marketed.
While applications for both can be submitted at the same time, securing one does not automatically secure the other.
The distinction is particularly important as breeders invest in developing varieties designed to withstand drought and other climate-related stresses.
“These issues are easier to manage while the variety is still being developed,” said Rutt.
“Once commercial trials, seed production agreements and international partnerships are underway, uncertainty over who owns what or who has authority to file can become much more difficult to untangle.”
Timing can determine the value of a variety
Boult also highlights the importance of filing strategy and timing.
Under current UK rules, plant breeders’ rights are generally unavailable if a variety has already been sold or commercially used in the UK for more than one year before an application is filed. Separate time limits apply in overseas markets.
As a result, breeders need to understand when development and testing activities transition into commercial use.
“Breeders need to understand when legitimate testing and development activity may become commercial use,” said Rutt.
“Waiting until a variety is ready to launch before considering protection can put years of work at risk.”
The issue becomes even more complex for businesses operating internationally. Since Brexit, breeders seeking protection in both the UK and EU must generally file through separate systems.
Rutt noted that the government’s proposed UK-EU sanitary and phytosanitary agreement could eventually simplify the landscape by enabling a single right covering both territories. However, negotiations remain ongoing and businesses should continue planning around the current arrangements.
Naming and branding matter too
Legal considerations extend beyond ownership and protection to how new varieties are named and marketed.
Although breeders may use trademarks and commercial brand names, varieties must also have an approved denomination for listing purposes. That official denomination must appear on seed packaging, even when a separate consumer-facing brand is used.
According to Rutt, these different forms of protection and identification need to be aligned well before launch.
“The trade mark, the official variety denomination and the plant breeder’s right perform different functions,” he said.
“They need to work together, particularly where a variety will be licensed to several producers or marketed under different brands internationally.”
A commercially attractive name may not be acceptable as an official denomination, while a name that works in one market may create difficulties in another.
Building resilience requires legal as well as scientific foundations
As the industry races to develop crops capable of coping with hotter, drier and less predictable growing conditions, Boult argues that intellectual property should be viewed as part of the innovation process rather than an administrative step at the end.
Developing a successful variety often involves years of breeding, testing and investment. Plant breeders’ rights provide the mechanism through which breeders can license their varieties, control commercial use and generate royalty income.
“Intellectual property law will not create a climate-resilient crop,” Rutt concluded.
“What it can do is establish who owns a successful variety, how it may be commercially propagated and sold, and how the breeder is paid when other organisations take it to market.”
