Ask a cannabis brand what sets them apart and they will tell you about a unique strain on their menu. Often the strain is one they started from seed or that came to them from medical cultivation. Archive Seeds in Oregon, for example, is widely known for its strain Face Off, now used in multiple breeding programs. The list goes on for brands and seed companies with valuable genetics potentially worth getting cannabis plant patents for.
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?
Quality cannabis starts with quality genetics, so what protections are in place to stop another company from profiting off of those genetics? Or worse, what is stopping the competition from putting your strain’s name on different, not-so-special genetics and diluting the value of yours?
To keep it characteristically blunt, not a lot. As David Bienenstock at Leafly puts it, the only thing stopping someone from selling you a generic OG and telling you it is Pre-98 Bubba Kush is “nothing really, except honor, decency, and a desire not to be labeled a human paraquat and banished from the scene.”
Currently, businesses have two legal options to protect their plant genetics: plant patents, and utility patents. Each of which comes with their own unique set of problems for business owners to navigate.
Cannabis Plant Patents Photo by @creatorscollective
The Plant Patent
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?
Acquiring a plant patent is a complicated, expensive, and lengthy process, often taking two years to file. Once a plant patent is awarded, however, the cultivar is protected. Protection covers unlicenced reproduction, use, import, or sale of that cultivar or any of its parts in the United States for 20 years. Currently, there are only a few cannabis plant patents filed. Cannabis plant named `LW-BB1` and Cannabis plant named `DD-CT-BR5` isn’t in any dispensaries around me as far as I know. Clearly having a cannabis plant patent for valuable genetics isn’t enough to create prolific strains.
Photo by @dyllyngreenwood
The Utility Patent
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:
- Tetrahydrocannabinol (THC) content that is at least 3%
- Cannabidiol (CBD) content that is at least 3%
- Terpene profile in which myrcene is not the dominant terpene
- Terpene oil content greater than about 1%
then BioTech owns that “technology” under their patent, and could potentially enforce their patent, preventing you from selling that strain.
Alternatively, multiple entities are publishing DNA sequences of various cannabis cultivars online to keep them in the public domain thus rendering them ineligible for patent protection. Despite being very different approaches to solving the problem, both are harmful to cannabis brands.
Photo by @Remedy_Pics
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?
Just as consumers demand new, unique genetics to keep your brand relevant, a constantly evolving strain menu might be your best option to protect you from intellectual property lawsuits. A developed pheno-hunting program able to supply your brand with unique genetics should be able to replace the old ones as they are patented.
Despite the high cost of seeds, typically $10-$12 each, germinating seeds can keep your brand alive. It will also keep the market excited. Rather than attempting to navigate the complex world of plant intellectual property, the more affordable option for smaller companies is to diversify not protect.