US officials approved the first-ever marijuana patent on August 4, 2015 for a plant containing large amounts of THC – the main psychoactive ingredient in marijuana.
Patent No. 9095554, “relates to specialty cannabis plants, compositions and methods for making and using said cannabis plants and compositions derived thereof,” according to the document.
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“There is a real need for cannabis varieties for potential medical use that produce modulated THC concentrations and varying concentrations of other pharmacologically active substances,” the patent says. “There is also a need for healthier cannabis for recreational use with reduced negative side effects from THC. The inventions described herein meet that long-felt need.”
But while the patent may inaugurate a new era of acceptance for marijuana in the US, it also opens up a new source of turmoil for the fast-growing industry: disputes over the intellectual property rights to America’s most potent and innovative marijuana strains.
“It’s going to be a mess,” said Tim Blake, a longtime grower and activist who founded California’s annual Emerald Cup cannabis competition. Marijuana growers developing new varieties, he added, “are going to have to spend a lot of money on attorneys.”
When big corporations eventually decide to enter the market and compete with smaller growers, the stakes will be even higher — and the competition even fiercer.
Yes, You Can Patent Pot
A spokesperson for the US Patent and Trade Office confirmed that officials are now accepting and processing patent applications for individual varieties of cannabis, along with innovative medical uses for the plant and other associated inventions.
“In general, the [patent] office issues both utility and plant patents to all types of plants, including cannabis and poppy, provided the applications meet and comply with the applicable patent statutes,” said the spokesperson, who asked not to be named. “There are no special statutory requirements or restrictions applied to marijuana plants.”
Though American cannabis cultivators have long had bigger legal problems to worry about than the question of who owned the rights to potent strains like Green Crack, Strawberry Cough, Trainwreck, Girl Scout Cookies, or Alaskan Thunderfuck, Patent No. 9095554 may be the opening salvo in a new series of legal battles over innovations in marijuana breeding.
The prize could be nothing less than the commanding heights of an industry that’s projected to soon top $40 billion, with the exclusive rights to produce, sell, or license designer varieties of pot. Over the next few years, the contest could take the form of a gold rush for patents.
“A well-written patent is like a declaration of war — you write a patent in a way that covers those who can sue you, and those you can sue,” said Reggie Gaudino, a Ph.D. in molecular genetics who works as director of intellectual property for Steep Hill Labs, a US firm that analyzes medical and recreational marijuana for compliance with public safety standards.
Concern is rising among legal-pot pioneers about the need to lawyer up to defend their creations from imitators and patent trolls, as well as from multinational corporations in the agriculture, tobacco and pharmaceutical industries that are thought to be watching the fast-growing industry from the sidelines, despite overt denials.
“If the laws change and the big companies move in, I think we’ll have a period of turmoil around ownership, patenting, the whole business,” said Erich Veitenheimer, a patent lawyer and partner at Cooley LLP in Washington, DC, who represented the patent holders of No. 9095554.
Some worry that confusion surrounding intellectual property rights for different marijuana strains could create an opportunity for companies like American agricultural behemoth Monsanto to stomp the industry by taking advantage of patenting techniques that the firm has already used to dominate the seed trade in other crops, such as soybeans and corn.
Many small pot farmers are more scared of corporate competition than they are of criminal prosecution, according to Hilary Bricken, a Seattle lawyer who chairs the Canna Law Group of the firm Harris Moure, which supports marijuana businesses.
“These people aren’t worried about the Department of Justice anymore,” said Bricken, who has represented cannabis enterprises in commercial litigation and has consulted on intellectual property issues. “Now they’re worried about Monsanto.”
A number of patents for the medical use of cannabis already exist, but Patent No. 9095554 is the first to be issued for a plant that contains significant amounts of THC, according to Veitenheimer, Gaudino, and Jonathan Page, a founder of Anandia Labs and scientist who co-led the team that sequenced the first cannabis genome.
“Our patent lawyers were really, really surprised that there weren’t more applications” for individual strains or classes of cannabis, said Michael Backes, one of the patent’s three listed inventors and the author of Cannabis Pharmacy: The Practical Guide to Medical Marijuana. His lawyers, he noted, “expected a ton of them, and there weren’t any. Ours was the first.”
In America, new varieties of plants, produced either through traditional breeding or as genetically modified organisms (GMO), can be considered intellectual property just like music, art, books, software, and architectural design — a fact that has allowed Monsanto to sue farmers for planting patented seeds that weren’t purchased from licensed vendors.
So far, marijuana breeders are working in the traditional way, and nobody is known to be attempting to produce GMO marijuana.
Rumors that Monsanto had started doing so forced the company to post a standing denial on its website. “Monsanto has not and is not working on GMO marijuana,” the company says. “This allegation is an Internet rumor.”
The firm “has no plans for working on cultivating cannabis,” said Charla Lord, a spokesperson for Monsanto.
Representatives of big tobacco companies also said that their businesses aren’t interested in pot. Brian May, spokesperson for Altria, which controls the Marlboro and Parliament brands through its subsidiary Philip Morris USA, said, “Our position is marijuana remains illegal under federal law, and Altria’s companies have no plans to sell marijuana-based products.”
Those denials haven’t been enough to quiet concern in the American marijuana industry about what may happen on the intellectual property frontier if and when legalization spreads across the country.
“There are all sorts of problems on the horizon if something doesn’t happen,” said Steep Hill’s Gaudino. “This kind of confusion is exactly what Monsanto wants. They want their access unfettered so they can take over without having to pay anybody.”
Recent decades have seen an explosion of powerful strains of pot bred by small-time growers with names like Blue Dream, Northern Lights, Death Star, God’s Gift, Purple Urkle, Skywalker, White Rhino, Chemdawg, and Blue Cheese.
Breeders who long toiled in the shadows are now beginning to seek patents for their innovative strains the way any other horticulturalist might seek a patent for a new type of rose, green bean, or sugar beet.
“We’re being approached by quite a few of these so-called underground breeders who have come to the surface and are now interested in patenting,” Veitenheimer said. “But they understand it’s only for their new varieties, which are different from anything else out there.”
“To obtain a utility patent, the claimed strain must be new and unobvious over existing strains,” the spokesperson for the US Patent and Trade Office explained. “The strain must also exhibit markedly different characteristics from its naturally occurring counterpart in its natural state.”
This “novelty” requirement means marijuana varieties that already exist in the public domain should, in theory, be safe from patent trolls, lawyers said — although it may also mean that the true inventors of celebrated pot strains may not be able to stake claims through the patent office for their inventions.
But just because you can’t patent something that’s already in the public sphere doesn’t mean people won’t try.
“It wouldn’t surprise me if someone, knowingly or unknowingly, tried to gain a patent on something that’s already in the public domain,” said Veitenheimer.
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