Global considerations for innovators in microbial biostimulants and biocontrol agents

Our recent analysis found that global patent activity in microbial biostimulants and biocontrol agents is surging, with strong growth in both patent applications and granted patents. For a detailed overview of the data, see our earlier blog post here.¹ 

Figure 1: Published applications in IPC (International Patent Classification) category A01N 63/00 - as a proxy for microbial biostimulants and biocontrol agents.

How does this global increase in patents affect you?

Inventions rarely stay confined to one country – for example, a microbial strain sold in Europe may be formulated in the US. It is therefore essential that you consider patent rights not only at the point of sale, but also during the numerous phases of product development and production that may span different jurisdictions. Early engagement with international intellectual property (IP) can help you protect your ideas more effectively, and understanding the IP landscape in the relevant locations will help you navigate risks and open doors to new markets.

Patents offer particularly valuable commercial protection for companies in this field. They can be used to protect plants (in combination with other IP rights such as plant variety rights), microbes, methods of their use, and the resulting products. However, it is important to remember that patents are negative rights, meaning that they do not give you the right to use, make or sell your patented invention. They simply allow you to prevent others from doing so in that jurisdiction. For example, if you have a European patent directed to product X, this does not allow you to manufacture, use and/or sell product X in Europe, but it might, depending on the scope, allow you to prevent others from performing those activities in Europe.

In a rapidly changing patent landscape (like that of microbial biostimulants and biocontrol agents), it is important to be aware of the patent protection (and other IP rights) held by other parties (such as competitors) to avoid infringing third‑party patent rights and steer clear of costly disputes. Navigating patent rights early and proactively helps to avoid scenarios where a product must be redesigned, withdrawn from the market, and/or is subjected to litigation.

What are the global trends in patents and patent applications relating to microbial biostimulants and biocontrol agents?

We were curious about whether there were any trends in patent applications and granted patents for microbial biostimulants and biocontrol agents globally. With that in mind, we looked at global patent publications and granted patents for these technologies. Our analysis revealed a widespread increase across all major jurisdictions for which data was available. In other words, this trend is not just driven by increases in a few isolated jurisdictions.

Figure 2: Published applications in IPC category A01N 63/00 by jurisdiction².

Initially, what stood out to us was the striking increase in Chinese patent publications and grants – the number of applications in China dwarfs those in other jurisdictions (try toggling China off in the graph to see for yourself). We think that one of the reasons that China stands out in this way may be because the Chinese government has incentivised the filing of patent applications and granted patents with financial rewards, reduced filing fees and tax reductions such that by 2024, China accounted for 48.2% of the world’s patent filings. Interestingly, China’s share of applications relating to microbial biostimulants and biocontrol agents is broadly in line with trends seen in other technologies. It is therefore likely that the apparent prominence of China in the headline data is largely a reflection of its general patent-filing environment, rather than disproportionate levels of innovation in microbial biofertilizers or biocontrol technologies.

The numbers of applications in China are so large, that it is difficult to get a clear picture of what is going on elsewhere in the world. By excluding China from the analysis, it’s possible to see an increase in published patent applications between 2010 and 2024 across almost all of the other jurisdictions that we investigated (Australia, Europe, Japan, Korea and the United States); all of which are major markets of interest for microbial crop solutions. Canada appears to buck the trend, for reasons that are not immediately clear to us. In view of this, of the clear upward trend for most major markets, we would be interested to see equivalent patent publication data for Brazil and Argentina, where progressive regulatory environments may be conducive to innovation in this space. However, such data is unfortunately not as easily available.

These findings highlight the importance of a global perspective on the patent and wider IP landscape. In practice, this includes searching for and tracking pending applications and granted patents relevant to key products in markets of interest.

Of course, simply looking at where patents have been applied for – or even where they have been granted – does not paint the full picture. Patent offices across the globe apply different standards for patentability, and the ultimate scope of granted claims even within a single patent family often diverges between jurisdictions. For example, this could mean that your product infringes a US patent but not the corresponding European patent. The position can be even less straightforward where inventions rely on deposited biological material because many patent offices impose specific, and sometimes unforgiving, rules on the deposit of biological material. These can differ on seemingly technical points: which depositaries are recognised, when a deposit must be made, how (and when) it must be referenced in the application, and whether – and on what terms – the deposit is made available to third parties. Compliance with these requirements can be decisive to the fate of an application, but they are easily overlooked.

Reducing uncertainty on the path to market

As organisations move towards product launch, senior decision‑makers and investors are often faced with a problem. Who else is active in this increasingly crowded space? Where are the hidden obstacles? Are there IP rights that could prevent product launch, slow us down, force a redesign, or trigger a dispute once we are in the market? Which markets carry the greatest risk? And where might there be room to manoeuvre – or even collaborate?

Moving forward without answering these questions is like entering a darkened room at speed. You may get through unscathed, but only because you were lucky.

At this stage, most organisations need a way to reveal what is already there before locking in decisions and committing financial resources. A clearer view of existing rights allows businesses to move forward with better visibility, rather than discovering obstacles and unpleasant surprises only once they are close at hand.

How can freedom-to-operate (FTO) analysis help?

This is where Freedom‑to‑Operate (FTO) assessments come in. FTO analysis focusses on understanding the rights of others, and how those rights may affect your freedom to make, use, or sell a product.

These are separate but complementary projects to your existing IP rights, designed to inform and strengthen your wider IP and commercial strategy. An FTO assessment is not simply a patent search. An FTO assessment is about enabling informed commercial decisions: where to launch, how to compete, and how to manage risk as products move towards market.

In practice, this helps organisations to build a clearer picture of the competitive landscape around their technology. It can highlight where competitors are active, reveal adjacent inventions that may complement or overlap with your own, and provide greater confidence when planning product launches in key markets by clarifying the likely patent and litigation risks. It can also uncover opportunities for collaboration, licensing, or partnership – particularly in markets that are not core to your own commercial strategy – supporting routes to market while also generating ancillary income through royalties.

Of course, your own patents might help to support commercial negotiations with third parties. Strong patent rights may underpin exclusivity agreements or provide leverage in negotiations, including cross‑licensing of IP rights. Such exchanges of access to technology can, in turn, open the door to longer‑term strategic collaborations. If you are interested in considerations for startups building an IP portfolio, see our blog here.

An FTO project typically involves:

• Identifying potentially relevant patents and applications in jurisdictions of interest. 

  This means searching patent databases of the countries where a product will be made, used or sold, (or a process put into effect) to find any existing granted patents or pending applications that could be relevant.

   

• Reviewing and interpreting any patents or applications that are identified.  

  Once potentially relevant patents are found, they are analysed to understand what they actually protect in practice – considering possible differences in the scope of protection across the global portfolio.

   

• Evaluating risk. 

  The final step is to assess how likely it is that the product or process of interest might fall within the scope of the existing patents or applications. This can involve evaluating the validity of the patents and considering their expiry dates.

FTO analysis is inherently case‑specific because every product (or process) has its own unique technical features, market targets, and competitive landscape. Even small differences to the technology can dramatically change which patents are relevant and how significant the associated risks may be. This is why tailored, expert interpretation of patent claims and market‑specific IP rights is essential.

This kind of analysis is not a ‘one‑size‑fits‑all’. Depending on the stage of development, FTO assessments may range from an early high‑level overview (useful for demonstrating broad awareness of the IP landscape to investors) to a detailed, product‑specific assessment, with the scope adapted to the project’s aims and available resources.

From an investor’s perspective, FTO analysis is especially valuable as part of IP due-diligence. By identifying potential patent risks, it helps to “de‑risk” investment decisions, providing clarity on whether a product is vulnerable to patent infringement threats that could prevent or slow sales, and jeopardise returns. Comprehensive FTO work highlights potential IP obstacles before significant capital is committed, allowing investors to gauge the viability and defensibility of a technology.

Effective FTO analysis, supported by thoughtful portfolio development, plays a pivotal role in helping organisations maintain commercial momentum and building investor confidence in rapidly evolving technical fields. Regular FTO checks ensure that assessment of risk remains accurate and actionable in this continually evolving landscape.

What can be done if you identify problematic patents?

A practical outcome of a well‑targeted FTO analysis is early identification and visibility of potential risks.

For example, FTO analysis can reveal where companies are filing broad or speculative patent claims as they race to carve out a wide area of protection. In such cases, the key is understanding whether those claims are genuine barriers to commercialisation at the earliest possible stage, because the validity of overly broad rights may be open to challenge. With a clearer view of the IP landscape, attention can turn from awareness to action.

If the claims of identified patents are likely to be problematic, then all is not lost. There are often practical steps that can be taken. We have longstanding experience in helping clients to “clear the way” for product launch, and a strong track record in challenging patents through contentious actions such as EPO oppositions, with the aim of narrowing the claimed scope or revoking the patent altogether. For potentially problematic applications, anonymous third‑party observations can be an effective way to limit the scope of problematic claims before rights are granted and become enforceable.

At Mewburn Ellis, our team has extensive experience conducting FTO assessments and managing complex global patent portfolios, supporting innovators and investors in making well‑informed, future‑proof decisions in the microbial biostimulants and biocontrol agents space.

Moving forward with confidence: seeing the whole room before you step into it

Our analysis shows that patent activity in microbial biostimulants and biocontrol agents is accelerating across all major jurisdictions due to a global shift that is reshaping the competitive landscape. For innovators, that brings both opportunity and risk.

The real challenge is not simply the volume of patents, but their potential scope, particularly given the significant variation in scope between jurisdictions. When coupled with the complexity of biological deposits, divergent patentability standards, and fast‑moving filing strategies, it becomes clear why relying on assumptions – or on a single jurisdictional view – carries significant risk.

For companies and investors operating in this rapidly developing field, the difference between success and setback often comes down to early, thorough research and planning. Making regular product‑focused reviews of the IP landscape as part of normal business planning allows organisations to move forward confidently and answer questions that matter most at the point of commercial decision‑making. Used well, they serve as decision‑support tools that evolve alongside the product, informing launch strategy, investment decisions, and portfolio development as the landscape changes.

If you are developing, investing in, or preparing to launch microbial biostimulant or biocontrol technologies, it is never too early to investigate the global IP landscape surrounding your product. 

At Mewburn Ellis, we work with innovators and investors to provide that clarity – helping them navigate complexity, manage risk, and move forward with confidence in a crowded and fast evolving market.

Get in touch to discuss how we can support your commercial and investment objectives.

References:

1. In our analysis, we used the number of publications in International Patent Classification (IPC) class A01N 63/00 (biocides, pest repellents, attractants, and plant growth regulators containing microorganisms or substances derived from them), as a proxy for microbial biostimulants and biocontrol agents (data sourced from IP Quants which provides data coverage for: AT, AU, BR, CA, CH, CN, DE, DK, EP, ES, FI, FR, GB, JP, KR, LU, NL, NO, RU, SE, US and WO).

2. Data sourced from IP Quants which provides data coverage for: AT, AU, BR, CA, CH, CN, DE, DK, EP, ES, FI, FR, GB, JP, KR, LU, NL, NO, RU, SE, US and WO. 

This blog was co-authored by Ben Tolley, Louise Atkins and Sarah Harvey.