A seed patent does not protect "the plant" in general, but a precise invention — most often a gene, a genetic trait, or a biotechnological process introduced by humans. Alongside this patent, classic to industry, exists a second regime, older and specific to plants: plant breeders' rights (PBR), framed internationally by the UPOV Convention. Understanding how a seed becomes property means distinguishing these two regimes, their effects on the farmer, and the counterweights that international law has provided.
Definition — A patent protects a new, inventive, and applicable invention (for example an inserted gene or a process). Plant breeders' rights (PBR) protect a plant variety that is distinct, uniform, and stable, granting the breeder an exclusive right of exploitation for a fixed term.
The first lock is the patent on biotechnological inventions. In the United States, Diamond v. Chakrabarty, decided by the Supreme Court on 16 June 1980 by five votes to four, confirmed that a human-made living organism — here a bacterium able to break down crude oil — was a patentable "manufacture" or "composition of matter" under U.S. law (35 U.S.C. § 101). This decision opened the door to patentability in the domain of the living, later applied to genes and traits introduced into crop plants (for example herbicide tolerance).
The second regime is plant breeders' rights, designed specifically for varieties. It differs from the patent on one important point: it traditionally includes a "breeder's exception" allowing a third party to use a protected variety to create a new one. In theory, this keeps innovation more open than the patent, which is more closed. Contemporary legal debate partly concerns the sometimes-conflicting interplay between these two regimes.
In Europe, the balance differs from the United States. Article 53(b) of the European Patent Convention excludes "plant varieties" and "essentially biological processes" for producing plants from patentability. In its G 3/19 decision (2020), the Enlarged Board of Appeal of the European Patent Office (EPO) held that plants or animals obtained exclusively by an essentially biological process (crossing and selection) are not patentable — confirming Rule 28(2) of the Implementing Regulations. Patenting the living thus remains more constrained in Europe than under the regime stemming from Chakrabarty.
Plant breeders' rights are framed by the UPOV Convention (International Union for the Protection of New Varieties of Plants), adopted in 1961 and revised several times. Its revised 1991 version strengthened breeders' rights on several points: extension of the scope and duration of protection, restriction of certain practices of reusing farm-saved seed, and introduction of the notion of "essentially derived variety," intended to prevent a protected variety from being copied with a cosmetic modification.
Concretely, under the 1991 Act, the farmer's right to freely resow their own harvest of protected varieties is no longer guaranteed: it becomes an optional exception that each State may provide "within reasonable limits and subject to the safeguarding of the legitimate interests of the breeder" (Article 15), often against the payment of royalties. This point — often called the "farmer's privilege" when retained — crystallises much of the debate on seed autonomy.
The extension of intellectual property rights over the living and the concentration of the seed industry advance together. An extensive portfolio of patents and protected varieties is both a valuable asset and a barrier to entry: building one requires a great deal of capital to fund R&D. The more the law recognises grips on the living, the more value tends to concentrate among those who hold these titles.
This dynamic was visible during the wave of mergers of the 2010s (Dow-DuPont, Syngenta-ChemChina, Bayer-Monsanto), after which a handful of groups concentrated a substantial share of the global commercial seed market. According to ETC Group's tracking, four companies — Bayer, Corteva, Syngenta, and BASF — now control around 55 to 56% of the global commercial seed market, and the top ten concentrate close to three-quarters of it. The correlation between extended rights and concentration is documented; the exact causal link (which precedes which) remains debated among economists. The tipping point is therefore not intellectual property itself — which can fund useful research — but its concentration.
Bowman v. Monsanto (2013) concretely illustrates the force of the patent on this market. The U.S. Supreme Court unanimously held that a farmer could not replant patented soybean seeds from his own harvest without the patent holder's permission: the doctrine of "patent exhaustion," which normally allows reuse of a purchased patented product, does not apply when the use consists of making new copies of the invention — which, biologically, is what a self-reproducing seed does.
A persistent legend deserves an honest correction. So-called "Terminator" seeds — genetically engineered to produce sterile grain, grouped under the acronym GURT (Genetic Use Restriction Technologies) — were indeed patented and much discussed in the 1990s. But they were never commercialised. A de facto moratorium was adopted in 2000 under the Convention on Biological Diversity (CBD), then reaffirmed and strengthened at the eighth Conference of the Parties (COP-8) in 2006.
In other words, farmers' real dependence does not come from a genetic sterility sold on the market, but from two very real levers: the law (protected varieties that cannot be freely resown) and the biology of F1 hybrid seeds, whose offspring do not faithfully reproduce the characteristics of the first generation. Attributing dependence to "Terminator" blurs the analysis; naming the right mechanisms clarifies it.
International law does not reduce to private ownership of the living. The International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA), adopted on 3 November 2001 under the auspices of the FAO and entering into force on 29 June 2004, explicitly recognises farmers' rights (Article 9). Its Article 9.3 states that nothing in that article shall be interpreted to limit any rights farmers may have to save, use, exchange, and sell farm-saved seed, subject to national law.
There is therefore a legal counterweight to the sole logic of intellectual property. In reaction to concentration, one also observes the rise of farmer seed networks, gene banks, and exchanges of royalty-free varieties. Their very existence shows that lock-in is not a technical inevitability, but a structure that collective choices — competition law, support for diversity, farmers' rights — can reshape.
Can a whole plant be patented? In general, no: a gene, a trait, or a process is patented, while a plant variety falls rather under plant breeders' rights (PBR). In Europe, Article 53(b) EPC expressly excludes plant varieties and essentially biological processes (EPO decision G 3/19). Regimes vary by country and can overlap on the same commercial seed.
Can a farmer resow their own seeds? It depends on the variety and the country. For a variety protected under UPOV 1991, this right is no longer guaranteed: it has become an optional exception, regulated and sometimes subject to royalties. In the United States, Bowman v. Monsanto (2013) confirmed that patented seeds cannot be replanted without permission. The ITPGRFA nonetheless recognises farmers' rights, implemented according to national legislation.
Do "Terminator" seeds really exist? They were patented and debated in the 1990s but were never commercialised, a de facto moratorium having been adopted in 2000 under the Convention on Biological Diversity and reaffirmed in 2006. Real dependence comes from the law and F1 hybrids, not from a genetic sterility sold on the market.
The seed patent is only one control point among others in a chain that runs from the seed to the plate. To understand how seed, land, inputs, and trade concentrate among a few players — and where the counter-powers lie — continue with our full investigation, the mini-investigation "The Global Food Monopoly."
In general, no: a gene, a trait, or a process is patented, while a plant variety falls rather under plant breeders' rights (PBR). In Europe, Article 53(b) EPC expressly excludes plant varieties and essentially biological processes (EPO decision G 3/19). Regimes vary by country and can overlap on the same commercial seed.
It depends on the variety and the country. For a variety protected under UPOV 1991, this right is no longer guaranteed: it has become an optional exception, regulated and sometimes subject to royalties. In the United States, Bowman v. Monsanto (2013) confirmed that patented seeds cannot be replanted without permission. The ITPGRFA nonetheless recognises farmers' rights, implemented according to national legislation.
They were patented and debated in the 1990s but were never commercialised, a de facto moratorium having been adopted in 2000 under the Convention on Biological Diversity and reaffirmed in 2006. Real dependence comes from the law and F1 hybrids, not from a genetic sterility sold on the market.
Dossier : Big Pharma & souveraineté alimentaire
MINI11: Le Monopole Alimentaire Mondial
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