Patenting Cannabis – Who owns The Plant?

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First of all, how can anyone or any entity obtain a patent on a living substance that grows in the wild and has been known for about 5,000 years?

In a landmark 1980 opinion, then-U.S. Supreme Court Chief Justice Warren Burger wrote that eligibility for patent protection does not depend on whether the substance is living or nonliving. Rather, the key question is whether the inventor has altered nature’s handiwork to the extent the resulting invention can be deemed a non-naturally occurring substance.

U.S. patent number US6630507B1US, held by the U.S Department of Health and Human Services (HHS), has long been a point of contention for cannabis activists. The patent covers “Cannabinoids as antioxidants and neuroprotectants,” and since it’s filing in 1998, the patent has been the surrounded in controversy and conspiracy theories. Why would the U.S. government hold a patent for cannabis, yet continue to keep it as Schedule I under the Controlled Substances Act?

Beyond the conspiracy theory of cannabis patents, the U.S. government isn’t the only company protecting intellectual property rights in cannabis. There are nearly 60,000 patents issued covering types of cannabis innovation and another 90,000 applications in process. The burgeoning marijuana industry is a gold rush for patent law firms around the country. Marijuana businesses are scrambling to protect their intellectual property rights, in a sector that until recently was relatively unprotected.

U.S. courts have ruled that the Patent and Trademark Office should treat the mundane – bicycles or can openers – and the controversial – such as birth-control devices, genetically altered mice and ammunition – the same way.

That is why all strains of flowering plants, be they tomatoes or cannabis, bud on the same even playing field.

Therefore, a patent on a particular strain of pot may be used to stop someone from growing or selling it, even in a state that has legalized weed. In theory, patent owners may sue to stop anyone from growing specific kinds of patented pot plants in any state or territory – whether or not pot is legal there.

Smaller breeders, scientists who alter naturally occurring marijuana plants for medicinal purposes, fear that bioagricultural companies like Monsanto and Syngenta will arm themselves with cannabis-based patents and deploy their considerable economic power to position themselves as dominant forces in a promising market.

The possibilities for patents in the marijuana industry are much broader than one might first assume, considering patents don’t strictly apply to strictly physical inventions. According to Knobbe Martens, an intellectual property, and technology law firm, some current areas to take into consideration for cannabis-related intellectual property rights are:

  • New and genetically modified Strains of Cannabis
  • New methods of identification and characterization of the many chemical compounds of cannabis; the detection and analysis.
  • New methods of extraction and processing.
  • New cannabinoid derived compositions
  • New consumption devices
  • New advances in marijuana as medicine
  • New innovations in cannabis cultivation

Coming soon to a lab near you? Genetically modified cannabis

When the mere mention of genetically altered foods causes your dinner guests to shift in their chairs, you’d expect a bumpy road ahead when it comes to researchers tinkering with their cannabis.

“We could make the cannabis resistant to things like mould, powdery mildew and pests without any of the regular horticultural interventions,” says Ryan Lee, founder of Chimera Genetic Resource Management, a longstanding cannabis seed company, and Chemovar Consulting, a genetic research firm that specializes in breeding and cultivar development.

“Through biotechnology, you could even change the chemical pathways in the plant,” Lee says, explaining that growers could potentially adjust CBD and THC levels much quicker than with traditional breeding methods.

When growers (generally anyone with the capacity to grown cannabis) were asked if they would genetically modify their cannabis to resist grey mold and powdery mildew, 73 percent of responding users thought it was worth it.

Gene-editing techniques, such as CRISPR-Cas9, in which geneticists can knock out certain genes in a genome to express a desired trait, has been applied to everything from apples that don’t brown to soybeans that produce more heart-healthy omega-3 fatty acids.

It’s a promising future for cannabis, but not yet within reach, said Daniela Vergara, a postdoctoral research associate researching cannabis genomics at the University of Colorado, Boulder.

At the Hyasynth Biologicals laboratory in Montreal, scientists are working on the latest frontier in the cannabis business: genetically engineering the active ingredients in marijuana and then patenting them.

“Cannabis is going to be like any other commodity controlled by large technology players and agribusiness. It’s where this is headed.”

Jim Thomas, a spokesperson for technology watchdog the ETC Group

Hyasynth is part of a new wave of genetic engineering firms across Canada and the U.S., splicing and dicing molecules found in cannabis plants, hoping to create new recreational products and medicines to treat pain, cancers, insomnia, epilepsy and a host of other health problems.

“Companies are using genetic sequences taken from natural cannabis strains, altering them and building a product that will eventually disrupt natural markets in cannabis,” said Jim Thomas, a spokesperson for Val-David, Que.-based technology watchdog the ETC Group.

Companies have already obtained patents for a transgenic cannabis plant that enhances seed yields and growth and a transgenic hemp plan that’s more salt tolerant, according to government data provided to CBC News.

Other patents are pending for new genetic alterations to cannabis, including:

  • A transgenic hemp product that increases pest resistance in plants.
  • A heat-resistant, transgenic cannabis plant.
  • Drought-tolerant cannabis plants.
  • A transgenic cannabis cell that alters how the cannabis plant produces polyunsaturated fatty acids.

Blockchain technology will be used to patent cannabis

When you walk into a dispensary in any one of the 25 states where medicinal and/or recreational marijuana is legal, you’ll likely see display cases lined with a dozen or more strains of weed. Many of these strains, like Pineapple Express or Blue Dream, will sound familiar, but is the Granddaddy Purp you buy in Colorado the same stuff your guy in California is selling you?

To answer this question, a company called Medicinal Genomics is creating a repository of cannabis genomes which are stored on the Bitcoin blockchain. The company hopes that its efforts will standardize strain nomenclature so that customers always know what they’re getting while also defending the intellectual property rights of those who breed new strains of weed.

There are more than 1,400 individual strains of cannabis grown worldwide, and up to 500 known chemical compounds in a single cannabis plant, leaving a number of varieties still open to ‘discovery’.

Large growers are beginning to think about securing intellectual property rights for their strains, which became a possibility in August 2015 when the first patent for a strain of weed was filed at the US Patent Office.

As might be expected, Medicinal Genomics has sparked a race among growers to sequence their strains and register them on the blockchain. While this is not the same thing as getting a patent from the US Patent Office for that strain and thus having IP rights for that strain, it does protect that grower in the event that someone else files a patent for that particular strain.

For $600, growers can now buy a DNA purification kit for one of their plants and ship the genetic material to one of Medicinal Genomics partner labs for sequencing. Once the sequencing is done, scientists at Medical Genomics will compare the strain’s genome to a reference strain—in their case, this is Purple Kush—and record its genetic deviations from this reference to differentiate it as a unique strain.

Another company ( TheraCann ) has been working to ensure that the weed or oil you take in is legal and traceable and they have a number of products that shows how weed travels via live maps. To that end they have added these DNA tags to TruTrace Technologies blockchain-based StrainSecure database. The company began as BLOCKStrain and is based in Vancouver, British Columbia. It is currently traded over the counter and it does not have a token.

This partnership is, as one would assume, a no-brainer. Connecting DNA tags to the blockchain is one of the interesting ways to track almost any type of consumable – from food to candy to ganja – from farm to bowl. Interestingly, the system also protects a farmer’s intellectual property by ensuring genomes are traced.

Since the cannabis industry is new and a standard has yet to be determined for the protection of rights and validating the supply chain, growers and consumers are left to hope that blockchain will be the technology that can help to establish fair standards moving forward.

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