You know that strain you love? The one that a breeder managed to hone perfectly over the years? We are at a point in the industry where that strain that you love could be locked up by big business. The theft of a clone or tissue, biopiracy, could destroy decades of hard work with no mention of where it came from.
Why? Big business is knocking on the door of the cannabis industry, bringing with them the specter of plant patents.
There have already been a few U.S. patents related to cannabis over the years. The one that caught the attention of everyone in the cannabis business came in the form of U.S. patent 9,095,554, a 145-page utility patent filed in August 2015 by the BioTech Institute in Westlake, California on the breeding, production, processing and use of specialty cannabis.
The document lists dizzying details of the chemical structures of both CBD and THC, their uses, planting and harvesting for cannabis, along with dozens of charts only a scientist could understand. It’s being hailed as the first-ever patent for a plant containing significant amounts of THC.
BioTech has filed the first patent on a broad range of cannabis, with various forms and concentrations of CBD and/or THC, and just about every form of cannabis including extracts and edibles.
It’s a shot across the bow in a multi-billion-dollar industry blissfully unaware—or unaccepting—that the cannabis business is moving into big agriculture territory. Big money attracts big players. Those big players want to own, protect and have recourse to take legal action against any other big company challenging the breeding, growing and selling of their product.
For cannabis business owners, it’s becoming clear that it’s time to circle the wagons and find out what needs to be done to protect the intellectual property represented by their plant and processes. All while carefully eyeing the moves of big agriculture.
It’s time to add patent lawyer fees and filing fees to the list of costs for running a cannabis business.
The hard reality is, for most breeders and growers, it’s already too late. If they’ve sold a strain a year or longer ago, it’s now in the public domain and therefore can’t be patented.
“Patents are not a threat,” says Dale Hunt, a patent attorney working in biotechnology. “In this young industry, patents are viewed that way. They are only a threat if they are in the hands of a big agricultural company. But they are also a shield. A patent can actually be a sword and a shield.”
If Monsanto gets into the cannabis business—an unconfirmed but common fear if federal legalization occurs—they will definitely have patents on the plant. “People need to realize that, ‘OK, if we can’t stop them from getting into it, we can’t stop them from patenting, do we figure out how to engage, how to defend ourselves using the same tools?’” Hunt expressed.
“We have found out that a lot of people are terrified about big agriculture when it comes to patents,” Mowgli Holmes, Co-Founder and CSO for Phylos Bioscience, added. “But even little breeders want to patent too. We thought that patents on cannabis were bad altogether, but once you start talking to breeders, you realize that they want and need protection.” Phylos is an agricultural genomics company based in Portland, Oregon focusing on cannabis studies.
Hunt explained that some in the industry just want it to be a kind of “patent-free” zone. “And that is just not an option.”
There are a couple of ways to patent a new strain. For example, one can be obtained on an individual strain with a simple plant patent, available through the USPTO. This offers a narrow form of protection against a direct copying of that strain. “Plant patents cost about $5,000 to file and might cost $5,000 in lawyer fees,” Holmes shared. “So they are affordable.”
The utility patent, like the one granted to BioTech, is a patent where an applicant persuaded the examiner that the certain combinations of biochemical and genetic properties were new, and provided various strains that have those properties.
“What is important to understand about that utility patent is that it is not limited to any particular strain,” Hunt explained. “It’s limited to only that combination of properties. And that patent is valid only if that combination of properties never really existed before. A big part of the challenge is: Who knows? Where is the prior art? There is a great and unusual vacuum of knowledge of what is really out there. It may well be that what is before the examiner is not new at all.”
That utility patent could, in effect, end the development of other, more diverse strains if they exhibit the same combination of properties as listed in that patent. “Our position now is that utility patents are being granted, and it’s pretty damn clear that those are not good for the industry,” Holmes said. “They are innovation killing, destructive patents. And if the industry wants to survive, they need to fight them.”
Sadly, there are only more patents coming, “I think they already granted the second one for the same group, and I think that they have several others in the pipeline,” Holmes recounted.
To fight cannabis plant patenting, the Open Cannabis Project was created recently to build a prior art database. The database lists the DNA sequence of thousands of strains that are already out in the public domain and, by doing that, making those particular strains unavailable to be patented by any one person or corporation.
Both Hunt and Holmes are working on that project now.
“That is important because it’s the only possible way to fight a patent on a specific plant,” Holmes said. “We need to get a lot of testing labs to donate their testing data, because that chemical data and what chemical compounds are in the plant is what that 2015 utility patent rested on. If we had done that a year earlier—if we provided that prior art data—I don’t think they could have gotten that patent.”
What could happen now? Hunt gives an example of a mom-and-pop breeder that develops a great strain. “As the industry gets bigger and more lucrative, how are they going to protect that strain from someone grabbing it, and propagating it as their strain?” he concluded. “The mindset that patents are bad is not one that will serve people well in this burgeoning industry.”