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Strain patents: yay or nay?

What are your opinions on patenting strains?

Do you think they should be “open source”?

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The cat’s already out of the bag on this one, with all the seed patenting that Monsanto does. On the plus side, patents expire, so after a decade the strain will be available for everyone. Trademarks are probably a better way for growers to protect their unique strains as those don’t have an expiry date on them.

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While the laws already go in one direction, the ethics of many people differ. I’m curious about personal opinions on it, because I’ve definitely talked to people on both sides of the fence.

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On the personal ethics side I’m against patenting strains as they aren’t really an “invention” which is what patents are intended for. If you want to patent a new breeding or genetic modification process, sure, but just a patent on a “thing” doesn’t make sense to me.

The law seems a bit mixed up to me given that they ruled you can’t patent a gene:
https://ghr.nlm.nih.gov/primer/testing/genepatents
but you can patent a whole plant. Isn’t a whole plant just a collection of genes? So one gene is not ok to patent, but a whole bunch of them at once is? And it isn’t like a patented strain is made up of entirely new genes invented from scratch. It’s just a reshuffling of which genes are included and which you’ve bred out. Even GMO introduction is just existing genes from other strains or organisms introduced into a plant.

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Thanks for sharing your legal and ethical opinions. Good stuff! It’s great hearing both sides. Solid arguments can be made.

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To be honest, a lot of how the law interacts with biology is quite confusing. For example, the more you study genetics, it becomes less clear what a gene actually is. This is a problem I still struggle with today. Sure, there’s DNA, but how is transcribed? Edited? How is the protein folded?

Then when you try to use legal language, which doesn’t handle the vagueries of biology well, and it really comes down to whoever’s writing the law or whoever’s on the bench.

The closest “legal” definition I’ve heard regarding GMOs and strain patents is as follows:

  • Said strain/cultivar must be (provably) unique compared to existing ones and must not have existed before. You cannot trademark/brand something that is in the common space. How uniqueness is determined is difficult – this is where it gets legally and biologically gray.
  • Said strain/cultivar must be “stable.” That is, if bred with others of the same cultivar/strain, it continues producing the same strain (IE Labradors bred with labradors keep producing labradors). This point is less relevant with clones or asexual species, although stability is expected with clones as well.
  • There must be some sort of economic interest in maintaining a trademark or brand on said strain/cultivar (IE: We invested a lot of time and money into researching this and would like to recoup our losses).
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over 28,000 patents are pending on strains at the patent office. No one has ever been given a patent for this before (I believe there is only one strain which is patented - could be wrong). The problem with strain patents is that you can cross so many different strains, mathematically there can be almost infinitely many ‘new’ strains.

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Some news on the patent and trademark front. It’s more for the business brand name than the strains, but it’s a step towards protecting your name:
http://ireadculture.com/power-of-the-brand/

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Thanks for sharing! Interesting.

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Interesting article from Forbes around the patent issues with cannabis:
https://www.forbes.com/sites/julieweed/2017/07/24/us-patent-office-issuing-cannabis-patents-to-a-growing-market/

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We have issued a similar license for Growers Alliances / Associations to offer to their members.

It’s called “Open Cannabis License”

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Well said, and I agree with this side of the coin, in the same sense that neighbor A. shouldn’t sue neighbor B. because “his” Kentucky Bluegrass comes on his property! Once this begins to be anything but a frivolous, and arbitrary, matter we, as growers, will all be in danger.

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IMO, it can help drive innovation and more diversity as more companies develop new strains and race to meet market requests.
Cannabis, imo, doesnt thrive off the monoculture/planned herbicide use type cultivation so “monsanto events” as far as frivolous seed patent litigation is less likely.
BUDSY had it right, there is an almost infinite amount of genetic variation if one were to pool unpatented strains so there wouldnt be any issue of diversity running out, it would have to be upto the market demand and grower drive to ensure that even with patents, open source genetic diversity remained.

In light of all this, has anyone considered starting a open source public seed bank where certain legacy genotypes could be kept, archived, and produced for sale to growers and the public? Sounds fun

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Addition/deletion of genes, epigenetics, and products of proprietary processes typically determine the patentability of an organism, iirc.
Roundup corn would very likely never evolve on its own, said corn’s offspring (if allowed) would carry the gene, and the process by which they isolated and inserted those genes are propriety IP.

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Here’s what we believe

Plant patents are an intellectual fraud for the most part, a threat to biodiversity. We’ve got over 50 years of demonstration that patent-driven breeding leads to genetic streamlining but some folks still argue this is fostering biodiversity…

Time to leave the old world behind :wink:

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Here are some things to consider about patents, IP and cannabis.

Please note that I am not a lawyer, but as the ED of Open Cannabis Project have consulted with dozens of lawyers on this matter. (And of course, I always recommend that if you have a specific legal question to consult a legal professional who is licensed to work withing your jurisdiction or the jurisdiction in.)

Ok here goes:

  • The vast majority of cannabis plants are neither new or unique enough to warrant patentability, plant variety protection (PVP), or plant breeders rights (PBR).

  • PVP and PBR cover seed registration; plant patents cover asexually produced plant clones; utility patents cover basically anything (incl. brooms and machine processes and cannabis).

  • Most cannabis seeds (including hemp) are not stable enough to be granted plant variety protection or plant breeders’ rights. Some have managed to get the certification for hemp in partnership with state departments of agriculture, however the US Dept. of Ag has yet to accept any cannabis seeds (as far as I know).

Which then begs these questions:

  • If PVP, PBR, and patents are not a way for me to protect my IP, what is?
  • How is it that patents are issued on plants that are presumably not new or unique enough to patent?

The answer to the first question is licensing. @Strainly has put together an open source license, for use by growers’ associations, which is a great start for an open source solution. There are also countless commercial licenses. The main challenge for all licenses, from my understanding, has to do with enforcement. Are, say, growers’ associations in a good position to enforce an open source license they may be using?

The answer to the second question is: money to pay for clever lawyers + a lack of public documentation, particularly in the form of prior art (which has its own technical set of rules).

The main (and really only) example we have of utility patents being issued on cannabis are the patent family issued to Biotech Institute, LLC. These patents are what brought this question of cannabis and patents into the forefront back in 2015.

These patents were issued in an environment where there was very limited published research, if any, on the types of terpenes present in cannabis plants. The USPTO is only instructed to look at patent documents and published academic documents in making their determinations about what is new and unique. Which is why, from what I understand, despite being presented with evidence countering the patents, the PTO maintains that the patents are valid. We will not know how it shakes out until there is an infringement case, which there hasn’t been yet, and we might not see it until cannabis is federally legal in the US. (It’s worth noting that Biotech was awarded a similar patent in Canada, but a far less broad one, because in Canada they do not wish to set a precedent for restrictive patenting on cannabis, which is covered in part of this article).

I have caught wind of another company, Stem Holdings, which is trying to get a utility patent on genes for cannabis plants that are used to treat epilepsy. Some of the experts I’ve spoken with have told me not to worry about it, because GW Pharma pretty much has a stronghold on that. I have not yet seen any GW patents on cannabis plants; only on uses of cannabinoids for specific purposes. If there is one, please share.

There is only one plant patent on cannabis in the US, on a plant that apparently produces 45% limonene. Plant patents only cover a single plant and its clones, and I have questions about how that’s any better than a license. Sure it has more teeth than a license, but if it only covers clones of that specific plant…are the teeth necessary?

In any case, the lack of prior art for cannabis is why documenting cannabis is so important. And also so tricky. What’s evidence of prior art in an IP framework is criminal evidence in another.

Meanwhile, thousands of patents have been issued on uses of cannabis and cannabinoids, as well as formulations made with them and processes used to produce them. One of our legal advisors, Dale Hunt, has put together MJPatentsWeekly.com as a way to help shed light on what’s really happening with patents and cannabis, and to encourage public feedback and commentary in an area where such things are missing. What we see on his website are a bunch of patents covering uses and formulations, which in many ways are just as restrictive and scary - perhaps not for growers, but for small businesses.

Take this tea composition. Is this novel, unique, or non-obvious enough to patent?

Or this garment with cannabis leaves. Is that novel, unique, or non-obvious enough to patent?

Our focus at OCP is on plants and IP, but I’m learning that’s just one small sliver of this super weird and, unfortunately, ethically questionable landscape of patents and cannabis. (I know that patents are designed to protect inventors, but when the system skews to favor big money over actual inventors, and when there’s a lack of documentation due to prohibition, there is a real problem IMHO).

Anyway, that’s a lot of info. Open to any questions or thoughts. Like I said, I’m not a lawyer, but I’ve been steeped in this for nearly a year - if there’s information that’s technically incorrect, please let me know so that I can issue a correction.

Also, to @mike.c, it would be awesome for there to be a seed library, or even better, a network of seed libraries that were really designed for genetic preservation. Or a variety of different systems, so that if one got knocked out, others remained. I could imagine an archival registration system (for cultivars/seeds that are unique, but not new), or a series of seed exchanges. It might be a difficult thing to pull of in the US…makes me wonder if something like that would be possible in Canada.

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Very useful summary.

Problem, as you pointed, is that most cannabis strains do not meet the conditions to receive PBR, PVP or Plant Patent, but it didn’t prevent patents from being issued, due to lack of prior art visibility.

A way for smaller players to “protect their IP” is through appellations of origins. This is likely more practical, ethical and justified.

Regarding the network of seed libraries, it’s precisely what Strainly is about. Connecting seed hoarders, preservationists, breeders, growers (who are key to keep strains alive) and nurseries to form that decentralized library, physically dispersed and therefore resilient. When a growing number/majority of contributors feature a lab test of their strain to their record, the library gets more robust. And as a reminder… we are in Canada.

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Totally agree re: appellations. The question is then, how is that information published and documented in a way that PTOs see?

Reading through the Manual of Patent Examining Procedure, you can get an idea of the kinds of formats that patent examiners look at. Printed publications, manuals, e-books are considered; digital repositories, comment threads, even sites like OCP.org and Strainly may not be, or at least they are not required (at least in the US). The work has to be compiled into publication format and submitted. (Which I now realize is an extra step that OCP needs to take with documentation efforts, and likely Strainly and other sites as well.)

@Strainly I’d love to look at the equivalent manual in Canada to see what the rules are. As we are doing this work to protect IP, we need to make sure that we are doing it in a way that’s seen.

Learning that our work online may not was a gut punch, but it just makes me want to work harder and keep fighting for protecting cannabis. :fist: :herb:

We’ve reached out to MIT to see if we can get data into their prior art archive, and are looking for other universities to partner with. If anyone has any recommendations, I’d love to hear them.

Also thank you for the work you do at Strainly. It’s super important.

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No and that’s a big fat nooooo. These parent strains that came to make the current strains we love and enjoy we made a long long time ago. How can you even patent a strain. You can patent the strain name. Look how well its gone for GG#4. Since all that patenting talk about the GG#4 nobody wants GG#4, or wants to grow GG#4. I am the owner of a dispensary and I still say the only way to go is to de-schedule and free the weed and take the profit out of it. There would be no need to patent strains if the profits were taken away. Take the government out of Cannabis. Why should we be fixing cities budgets with Cannabis tax dollars.

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Head of the nail my friend!

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