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KWS: patents to control “native traits”

By Denis MESHAKA

Published on the 22/07/2026

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This article serves as an illustration of the Inf’OGM article entitled “Patents and “native traits”: circumventing the limits of European law“. It is therefore recommended that it be read in conjunction with that article, which provides the necessary theoretical framework and background information.

The strategy developed since 2022 by the German seed company KWS is a clear illustration of the patent strategies relating to “native traits” (or “native characteristics“) discussed in a previous Inf’OGM article¹. By offering patent licences based on technical elements associated with these traits, the company demonstrates how patents enable private control over the use of characteristics already present in biodiversity, whilst remaining within the European legal framework.

TraitWay: a showcase for a deliberate strategy

In 2022, KWS launched its TraitWay catalogue online², which offers patent licences covering “native traits” – that is, characteristics already present in plant biodiversity, such as disease resistance, cold tolerance or tolerance to various stresses. More specifically, the German seed company “offers its native trait related patent applications and patents for licensing to all interested parties via a standard commercial license agreement”. KWS therefore does not claim patent rights over the native traits themselves, which are not patentable.

The company presents the TraitWay platform as a means of promoting plant variety innovation by giving breeders access to certain traits that it controls through intellectual property rights. According to KWS, this approach “is key to meet the challenges agriculture is facing across the globe” including climate change, food security and regulatory developments.

Its communication regarding TraitWay is based on two aspects. On the one hand, it must take into account the fact that, in recent years, the European Union (EU) and the European Patent Office (EPO) have sought to clarify the rules allowing for the rejection of new patents on non-technical “inventions“, notably by prohibiting the patentability of products obtained by essentially biological processes (Decision G3/19 of the EPO’s Enlarged Board of Appeal in May 2020)³. At the same time, KWS is promoting a portfolio of “native traits“, available under licence, presented as a means of enabling “any interested party” to access “inventions” purported to solve climate and food security problems.

A particular approach to patent law

This dual stance – acknowledging the limits imposed by European law whilst commercially exploiting patents relating to “native traits” – strikes a delicate balance that KWS appears to embrace fully. And there is, in fact, nothing paradoxical about the opportunism of this position.

Indeed, the seed company, which welcomed decision G3/19 of May 2020, emphasises the distinction between traits “developed or produced by technical means” (patentable) and those “incorporated into new varieties using essentially biological processes” (non-patentable)⁴, even when these traits are described as identical or equivalent⁵.

The recent decision by the European legislator to deregulate GMOs obtained through new genetic modification techniques (NGTs) has reignited the debate, given the risk highlighted by many stakeholders that patents may be granted for traits already present in native biodiversity once they are introduced by technical means. KWS’s entire strategy is based on this distinction between the natural trait itself and the technical means used to highlight or introduce it.

Technical claims to control “native traits“

Certain families of patents in the KWS catalogue (see box below) were filed following amendments to the implementing regulations of the European Patent Convention (EPC) which came into force on July 1^st, 2017. It should be noted that these provisions prohibit the patentability of products obtained by essentially biological processes (EPO Decision G3/19).

KWS refrains from directly claiming these products – native plants or the traits they express. Instead, the German seed company bases its patents on claims covering technical elements related to the traits in question, such as molecular markers, nucleic acid sequences, methods of detection or identification, processes utilising these markers, or specific chromosomal regions⁶. Although marker-assisted selection is not patentable as such⁷, these claims enable indirect control to be maintained over, in particular, the identification of the traits in question and over the plants that express them.

Patents have been granted on such specific molecular markers, which may be located on either side of a gene expressing a given trait, or cover large genomic regions. These patents may thus prevent third parties from using these markers, in particular by restricting certain breeders’ access to the genetic resources in question. As the sequences of such markers are highly conserved within the genome, it is difficult for these third parties to circumvent these patents by using other sequences or by employing other methods to identify the presence of these sequences.

All patent applications filed by KWS after July 1^st, 2017, most of which are still in force, relate to specific molecular markers and to the methods employing these markers. This enables KWS to claim control over plants expressing “native traits“, without needing to rely specifically on patents relating to NGT1, provided that these plants contain sequences detected by the same molecular markers.

A “breeder’s“ licence programme restricting market access

With regard to the exploitation of its patent rights, KWS offers licensing agreements. An analysis of its breeders licences⁸ sheds light on the seed company’s strategy. This “Standard Breeders’ Licence (Native Traits)“⁹ grants breeders a royalty-free, non-exclusive and “non-transferable” licence to use plant material containing the trait in question and the associated molecular markers in their breeding activities. The agreement permits cross-breeding, breeding work and the use of markers necessary for identifying the trait in question. The licence remains, however, highly restrictive and is limited solely to the explicitly defined use, excluding any genetic modification, broader use of biological material or commercial exploitation.

Unsurprisingly, this standard licence prohibits any commercial activity. Furthermore, it defines this activity in particularly broad terms, since commercialisation begins as soon as an application is made for a plant breeders’ right (PBR), entry into the official catalogue or registration of a variety containing the trait in question. Thus, a breeder may spend several years developing a new variety incorporating the trait covered by the patent, but as soon as that variety becomes economically viable and needs to be registered or protected, the breeding licence is no longer sufficient. Another licence, this time subject to a fee, then becomes necessary, as highlighted by Laurent Guerreiro, president of the French breeding company RAGT, in February 2023¹⁰. In short, after carrying out the breeding work leading to a marketable product, the licensee must still comply with the conditions set by KWS.

This “Standard Breeders’ Licence” is therefore a tool used by KWS to control market access. Whilst it paves the way for the breeding of new varieties, KWS regains control once these varieties acquire commercial potential. However, breeders in the EU already benefit from an exemption allowing them to use patented material for breeding purposes (Article 27(c) of the Agreement on a Unified Patent Court). This exemption does not, however, allow them to commercialise the result of their breeding work when it contains the patented trait. For those familiar with it, the KWS licence is ultimately nothing more than a strict application of European law. Its main objective appears to be to organise the transition to the commercial phase through a contractual arrangement, allowing competing breeders to carry out their breeding work, and then requiring them to pay royalties when they develop a variety of commercial interest. Through this type of licence, KWS could also impose obligations on licensees that they would not have to fulfil if they did not take out a licence and relied solely on European law for their breeding activities.

The example of KWS thus shows that the distinction between the non-appropriable “native trait” and the technical subject-matter eligible for patenting can, in practice, be circumvented through strategies of contractual protection and commercialisation. The new NGT regulation and its provisions on patents could reinforce these dynamics of appropriation.

1. Denis Meshaka, “Patents and “native traits”: circumventing the limits of European law”, Inf’OGM, 16 July 2026.
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2. KWS, “KWS launches licensing “TraitWay” to promote innovation in plant breeding”, 7 October 2022. ↩︎
3. European Patent Office, “Decision G 3/19 of the Enlarged Board of Appeal”, 14 May 2020. ↩︎
4. KWS, “KWS welcomes decision of the highest instance of the European Patent Office on the non-patentability of Native traits”, 18 May 2020. ↩︎
5. EFSA GMO Panel (EFSA Panel on Genetically Modified Organisms), “Scientific opinion on the ANSES analysis of Annex I to the EC proposal COM (2023) 411 (EFSA-Q-2024-00178)”, EFSA Journal, Vol. 22, Issue 7, e8894, 11 July 2024. ↩︎
6. Denis Meshaka, “Patents and “native traits”: circumventing the limits of European law”, Inf’OGM, 16 July 2026. ↩︎
7. EPO, “Guidelines for Examination at the EPO, Part G, Chapter II, 5.4.2”. ↩︎
8. KWS, “Standard Breeders’ Licence (Native Traits)”. ↩︎
9. Ibid. ↩︎
10. Eric Meunier and Hervé Le Meur, “Une large gamme d’acteurs opposés à la dérèglementation des OGM”, Inf’OGM, le journal, n°173, October/December 2023. ↩︎