Developments in molecular genetics over the past ten years have had a dramatic impact on plant breeding. These developments are also set to revolutionize genetic resource conservation. The future impact of genomics and bioinformatics can be expected to have an even greater effect. In addition to these technological developments, the political arena has also undergone significant changes, especially since the early nineties when the CBD was concluded. During this period the notion of ownership and access to biodiversity completely changed as a result of two developments.

1. A shift from a common heritage principle to one of national sovereignty over genetic resources, which resulted in emphasis on bilateral exchange.
2. The changing concepts of property rights. Increasing application of patents to protect innovations (including identification of genes and the production of new crop varieties) has had profound effects on willingness to share genetic resources freely.

The advent of modern biotechnology also brought additional challenges for the application of IPRs in plant breeding. Not only is there the possibility to protect individual varieties and genes, but the majority of the tools and processes of genetic transformation are patented. This is also related to concerns that patents can actually inhibit follow-on research, leading to a so-called ‘anti-commons’ in biotechnological research. Second, because biotechnology allows a much more precise understanding of the genetic makeup of any crop variety, it opens the door to sophisticated screening and reverse engineering techniques, providing new possibilities for utilizing or reproducing protected varieties and leading to pressures for even more stringent protection.

Today, the vast majority of the innovations in plant biotechnology are subject to patents in a growing number of countries, although the scope of coverage varies considerably by country and technology. Patents are used to protect biotechnology laboratory tools and reagents, genes and gene sequences, and processes for transformation, regeneration and diagnosis. A genetically modified organism commonly includes an inserted construct that contains a functional gene, a selection marker, a promoter and other sequences that may all be patented (by different inventors). It is inserted using a transformation method that is patented (possibly including improvements on an original method that may itself be patented) and using equipment and other materials for which a research exemption may be required.

The patent regime for biotechnology affects not only the development of transgenic varieties but also has important implications for the use of biotechnology in conventional plant breeding. Various diagnostic tools and equipment used for such increasingly important activities as marker- assisted selection may be protected. Even though a new crop variety may not contain any novel or protected genetic material, if its development relied on the use of protected tools or processes it may be subject to license or restriction by a range of patent holders. A brief overview of the scope of protection is given in the next section.