EU ban on plant patents: possible compromise?

Euractiv are reporting a possible compromise on the EU Parliament's controversial proposals to ban patents on plants. It seems one possible option being considered is to either limit the restriction on patenting to Category 1 NGT plants (those which must differ by no more than 20 genetic modifications from the parent plant in order to benefit from exemption, and which “could also occur naturally or be produced by conventional breeding techniques”); or to require that rights holders should agree not to enforce their rights in respect of these plants. Category 2 NGT plants would remain subject to more stringent regulation before being allowed to be grown, and presumably would still remain patentable.

Of course, the division into Category 1 and 2 NGT plants is somewhat arbitrary, but this at least leaves open the possibility that innovators could still obtain patent protection to protect their investment in R&D. It is plausible that obtaining first mover status by having patent exclusivity until the moment of approval takes place would still be considered worthwhile.

However, one immediate thought is that if only the authorisation holder agrees not to enforce their IP rights, commercialisation could still be hampered by third party rights covering the Category 1 NGT plants; such that the compromise position may still not achieve anything substantive.

The paper with full comments from member states is available here, and is worth reading. The quote below comes from the Estonian delegation. There also seems to be widespread support to ensure that the proposed study into the effect of plant patents on the industry reports before any legal changes come into force - which can only be a sensible move. 

As always, the devil will be in the detail, so we will be watching progress closely.