That means the government believes it has “no currently accepted medical use and a high potential for abuse,” putting it in the same league as LSD and heroin.
The patent owner may respond that federal law gives him the right to stop others from using (or growing) their patented invention.
Patenting living things
Growers are already (or soon will be) acting legally under state law in Alaska, California, Maine, Massachusetts, Nevada, Oregon and Washington – and with some limitations in the District of Columbia. Many cannabis patent applicants are positioning themselves today for what they expect to see within the foreseeable post-Trump future: marijuana being legal for recreational and medical use from coast to coast according to federal and state laws alike.
This burgeoning industry has also witnessed the issuance of dozens of patents related to cannabinoids and various strains of cannabis, including ones on marijuana-laced lozenges, plant-breeding techniques and methods for making pot-spiked beverages. Some of these products contain a significant amount of THC, the psychoactive ingredient in marijuana that makes people high.
Patent law is exclusively federal. Therefore, the grower cannot successfully argue that patent law doesn’t matter. Yet the grower can assert that the patent is unenforceable. Not because it fails to satisfy the patent laws, but because the patent covers an illegal substance.
The vast majority of these patents went to drug companies. A few went to universities and other entities.
Regular: These contain both male and female plants, meaning that half of the plants will not flower. This kind requires more light to begin flowering.
Plants can be genetically altered for shorter, better yields.
Plant breeders’ rights
Strains can be bred for pain management and other medical purposes.
Anyone can sell cannabis seeds but not all vendors are legal. International drug laws do not strictly regulate cannabis seeds because they have a variety of uses — animal feed, oil production, clothing material — but some countries are stricter about their importation than others.
1. Seed companies: Seed companies produce the seeds. The majority are based on the Netherlands or Spain due to their more lenient laws. There are around 122 large scale seed companies in Europe, according to the UN’s research.
3. Resellers: There are many more resellers than either of the above two categories. Resellers will often sell product from a variety of companies and can inhabit a legal grey area, catering to black market weed vendors as well.
The market is headed towards a massively complicated legal battle. It’s likely that many smaller companies won’t be able to afford it. It’s possible that preemptively protecting unique genetics may not be affordable either. So what should small companies do to protect their genetics?
The Jungle Boys, out of Southern California, are attributed to the discovery of the widely popular Sundae Driver, bred specifically for high terpene content. But, many of their genetics come directly from Seed Junky Genetics that have coined many popular cultivars. Bellingham-based brand Cascadia Gardens is known for its strain, Bear OG. The strain is one of four “signature house strains” said to differentiate the company against the competition. The question then becomes: are cannabis plant patents for valuable genetics necessary?
Thanks to the Center for Food Safety (CFS) you’re likely aware of the tricky situation surrounding plant patents. The CFS found extensive lawsuits filed by Monsanto to enforce their plant patents. Lawsuits against 410 farmers and 56 small businesses covered multiple states. Monsanto maintains that their genetics are valuable enough to justify a plant patent. A prominent trademark infringement case between GG Strains LLC and The Gorilla Glue Co. resulted in a quick strain re-name among other things. If these cases make the general consumer aware of companies’ ability to protect their plant-specific intellectual property, why isn’t the practice more common?
The Utility Patent
Cannabis Plant Patents Photo by @creatorscollective
Another option for businesses is the utility patent. Rather than patenting the living organism, this patent considers the plant as a technology. A utility patent protects the tissue able to produce the unique combination of terpenes, cannabinoids, and other metabolites. These patents are granted in much higher numbers and more quickly, so this approach may make more sense for businesses.
Unfortunately though, companies have already started taking advantage of the broad coverage of a utility patent. Biotech Institute LLC was granted Patent No. 9,095,554 titled “Breeding, Production, and Use of Specialty Cannabis.” Thanks to its vague wording, this patent could cover 50 to 70 percent of all strains on the market today. In fact, if you grow any strain that fits these qualifications:
then BioTech owns that “technology” under their patent, and could potentially enforce their patent, preventing you from selling that strain.