To patent or not to patent?

By R. Robinson

 

Ever since American voters chose to legalize medical Cannabis the question of patenting the herb has been on every new ganjapreneur’s mind. Despite hundreds, if not thousands, of attempts to patent everything from the ubiquitous “Blueberry” strain to the word “marijuana” itself, the Cannabis plant remains comfortably entrenched in the public domain.

 

However, novel technologies developed over the past couple of decades, as well the flower’s cash-crop potential, have ignited patent fears in the Cannabis cultivation community. The fear is that one day, sooner rather than later, the giants of agricultural industry may lay exclusive claims to Cannabis varieties. And these fears may not be entirely unfounded.

 

Plant patents in the United States

 

Despite the boogeyman stories surrounding companies like Monsanto and AgBio, plant patents aren’t anything new. They have been around for decades, long before terminator seeds and Roundup. In 1930, Thomas Edison lobbied for the Plant Patent Act (PPA) arguing that the recent rediscovery of Mendelian genetics had made inventors out of plant breeders. The PPA allowed for growers to hold exclusive distribution rights for asexual, “manmade” plants.

 

Fast forward to 1970 when Congress expanded plant patenting rights with the Plant Variety Protection Act (PVPA), which included sexually reproducing plants among the repertoire of privatized life forms. PVPA patents did not carry as much legal weight as PPA patents, but the ultimate consequence of this law was that seeds also fell under the umbrella of patentable material.

 

Just 10 years after the PVP Act, the Supreme Court ruled in favor of General Electric during the landmark Diamond v. Chakbrabarty case. This ruling made it possible to patent any human-made construct: that meant genetically modified organisms (GMOs) and artificially designed genes could be commercial property. This brings us to the dilemma we face today.

 

The state of things

 

As of this article, no patented Cannabis sativa strains exist. Three years ago, the US Patent and Trademark Office stated it was swarmed with a deluge of ridiculous requests after mistakenly introducing Cannabis products as a trademark category. However, any attempts to trademark “White Widow,” “Purple Haze,” or “Maui Wowie” were shot down en masse. Only Cannabis-derived products such as sodas or extracts received trademarks or patents. Brand names may be the easiest route for exclusive distribution of Cannabis products, but rest assured, no one company will own Northern Lights.  

 

For example, take the clementine. This is a variety of mandarin orange that commonly gets sold in supermarkets under the brand name “Cuties.” No one is allowed to patent the clementine orange, but Cuties’ clementines are protected by trademark.

 

A similar scenario could be seen in the near future. Any licensed dispensary could sell Bleu Cheese over the counter, but heavyweight grow operations may market their own version of Bleu Cheese with a brand attached to it. Brand names may one day become associated with the product itself, much in the same many people refer to any tissue as a “Kleenex” or any caramel soda as a “Coke.”

 

Trademarks work in product branding, but Diamond v. Chakrabarty paired with federal legalization means we will see patented Cannabis in the near future. This is possible if the plant’s genes are modified or tampered with in some way. Genes can be altered through an entire array of ingenious techniques. Radiation, chemical baths and transgenic methods – moving genes from one species into another – can qualify a DNA sequence to become patentable. Although the plant itself is not privatized, the gene sequence is, and any plant bearing that gene, therefore, bears the patent.  

 

The possibilities for modifying Cannabis are endless. Scientists could circumvent the plant’s flowering requirements, skipping the day / night steps and going straight for a quick and bountiful harvest. Genetically modified Cannabis could be designed to produce more THC than conventional breeding can. THC could even be removed from the plant altogether, which would be highly prized by patients who don’t enjoy getting high.  Resistances to drought, salts, frost and pests could make the hardy herb even hardier, allowing grow operations to work around the clock in nearly any environment. But as of right now these possibilities lay in the realms of science fiction and speculative investments.

 

Although no biotech companies have made large-scale pot farms with specially patented seedlings, there are patents for marijuana-derived medicines. Ironically, our federal government, which keeps marijuana at Schedule I under the pretense that Cannabis has no medicinal value, owns one of these patents.

 

The patent number 6,630,507 was issued in 2003 to the United States of America through the Department of Human Health and Services. It’s a patent for cannabinoid mixtures, mixtures that include THC and cannabidiol to protect brain cells.

 

Interested in learning more? Check out these references:

 

The patent file for the federal government’s cannabinoid “invention.”

http://www.google.com/patents?hl=en&lr=&vid=USPAT6630507&id=0pcNAAAAEBAJ&oi=fnd&dq=Cannabinoids+as+antioxidants+and+neuroprotectants&printsec=abstract

 

The Plant Patent Act of 1930: A Sociological History of its Creation by Cary Fowler (2000) in the Journal of Patent and Trademark Office Society.

 

The evolving landscape of plant varietal rights in the United States: 1930–2008 by Philip Pardey, et al. (2013) in Nature Biotechnology.

 

Why patents won’t work for common Cannabis strains: http://www.freakonomics.com/2012/08/22/can-marijuana-%E2%80%9Cbrands%E2%80%9D-be-legally-protected-against-copying/

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