Plant breeder's rights and the future of cannabis

A lot of people are concerned about the patenting of crop species, including cannabis. Some question the ethical implications of patenting a living organism. Others are more pragmatically concerned about the effect of patents on biodiversity and the availability of genetics. Occasionally people express fear that big companies will patent all available cannabis varieties, leaving nothing for anybody to legally grow. In any case, IP protection in the plant genetics world is unquestionably complicated, and changing quickly.  I hope this post can help people understand the ways in which plant varieties are protected, the reasons behind it (good or bad). At the end I will speculate on the risks to cannabis biodiversity and where we are headed. 

In the USA today, plant varieties can gain legal protection via the following means:

  • Plant Patent (NOT the same as utility patent )
  • Plant Variety Protection (PVP)
  • Utility Patent
  • Licensing agreements (aka 'Bag tags')

Let's walk through these one by one. 

Plant patents are the oldest mechanism of protecting plant inventions, established 1930. Before 1930 there was no protection for plant inventions - a breeder could work years on a project only to have someone else take it, reproduce and sell it the following year. Plant patents were created in response to the work of Luther Burbank, a famous plant breeder (if there is such a thing) who lived from 1849-1926. If you're interested in his life, I'd recommend reading "The Garden of Invention" by Jane Smith. The feeling at the time was that by giving plant breeders control over their inventions for a defined amount of time (20 years) you would encourage further innovation. 

Plant patents only apply to asexually propagated crops, like many fruit and nut trees, and vines. Tubers, like potatoes, were exempted at the time because they are also used as food To be awarded a plant patent, the inventor must demonstrate the the variety meets the DUS criteria. In addition to being new, a cultivar must be:

  • (D)istinct from other varieties
  • (U)niform in its characteristics of distinction
  • (S)table from generation to generation 

Very similar to Plant Patents, Plant Variety Protection (est. 1970) applies to seed (and tuber) propagated crops, which includes most vegetable and field crops. PVP has the same criteria for protection as plant patents, just applies to different crops.

Interestingly, in many European countries the criteria are more stringent. Not only do you have to show that a variety is DUS, but you often also have to demonstrate that your variety is an improvement over the currently available varieties in order to get it entered onto the national variety list. Entry onto the national list mandatory for the commercial cultivation of certain crops. 

The PVP act expressly allows the use of PVP material for plant breeding purposes. It also allows farmers to save seed for their own use. Not so bad, right?  

Utility patents on plants are where things start to get less friendly. Court decisions in 1980 (Diamond v Chakrabarty) and 1985 (ex parte Hibberd) established that plant inventions were subject to protection by 'regular' patents (called utility patents to distinguish them from plant patents). In general, these patents are used to protect the method of creating a new variety, or the DNA sequences (e.g. the Roundup Ready construct) used to create a variety. Utility patents do not allow seed saving by farmers or use by breeders. 

More recently, utility patents have been extended to theoretically cover varieties created through traditional breeding, and not just the methods or genetic constructs used to create them. However, in order to gain protection any such varieties must be demonstrably novel, and "non-obvious". Whether something is 'obvious' or not is a very sticky matter. 

Licensing agreements aka 'Bag-tags' are kin to the software EULAs that no one ever reads - by opening the package the purchaser agrees to whatever terms the manufacturer has placed on the package. Personally, I hate to see these on bags of seed. To me, it doesn't seem fair to put whatever restrictions you like onto your product, regardless of legal protection by other means (like legitimate patents or PVP) and the nature of the product itself. Bag-tags are questionably enforceable, but seem to be often upheld in court. Licensing agreements are already employed by in cannabis. 

And now, a little perspective: 

As a plant breeder, I am in favor of plant patents and PVP. They provide incentive for breeders to invest years into breeding projects, while at the same time ensuring the genetics remain available for further progress. Utility patents and (more so) licence agreements make me nervous because they limit the ability of others to build upon genetic progress, and can limit the availability of genetics to growers.

That being said, I don't think utility patents are a huge threat to cannabis for the following reasons: 

1. The USTPO is unlikely to award patents for cannabis due to its current federal status. 

2. Patents expire! Licence agreements and biological protection mechanisms (perhaps the topic for another blog post) do not!

3.  To be patented, a cultivar has to be new and non-obvious. Both of these would be hard bars to meet for any currently available cultivars.  

4. Patents are expensive to obtain and defend. Typically agriculture companies only pursue and defend patents that provide them significant advantage over a long period - like a new disease resistance. There are many crops where patents and PVP are rare to nonexistent - often the breeding moves faster than the patenting process, making obtaining a patent for a run-of-the-mill variety uninteresting. Refer to the table below (from http://gmopundit.blogspot.com/2012/06/seed-biodiverity-as-measured-on-in.html). 

You will notice that 675/854 Utility patents filed to date are for field corn alone. This is because field corn seed is really big business. Monsanto sold 6 billion of dollars of seed corn (and traits) in 2015, and holds about 30% of the market. I've heard estimates that the retail market for cannabis in the USA is ~50 billion - but how big is the cannabis seed market? It will be bigger than most (possibly all) vegetables, but will be smaller than corn for a long time.  

While utility patents may not be a big threat, license agreements, unfortunately, may become common.  The good news is that these agreements won't restrict the availability of current genetics. 

As a final note, I'd suggest that the pharmaceutical industry as a larger threat to the future of cannabis biodiversity than the horticulture industry. Horticulture works at the plant level, and there is space in horticulture (and agriculture) a range of cultivation methods, grower needs, and consumer preferences. Pharmaceuticals, on the other hand, seek to reduce the plant to one or a few constituent parts. Cannabis-as-pharmaceutical would be, frankly, boring - concerned only with maximizing the extraction of active ingredient. 

 

 

Where did the winter go?

We are back! The last four months have been a very busy time here at New Breed - building our first greenhouse, setting up our breeding and seed processing equipment, upgrading the utilities at our site, and getting ourselves compliant with the OLCC. We're happy to say that we passed our OLCC inspection and are anxious to get started on the project we are here for - producing quality seeds and improved varieties for Oregon growers. 

We expect to have seeds on store shelves, and available for trialing by growers, this fall. In the mean time, if you want to discuss breeding or are interested in talking about our business, drop us a line! 

 For those of you who might be curious, the greenhouse is a Conley 3600 - heated by gas and cooled by a high-pressure fog system. 

For those of you who might be curious, the greenhouse is a Conley 3600 - heated by gas and cooled by a high-pressure fog system. 

Looking forward to 2016

Here at NBS we are anxiously awaiting approval of building permits from our city, and the beginning of the licensing process with the OLCC. We hope that early in the new year we will be able to make rapid progress on our greenhouse construction project and get growing as soon as possible.

While not all local jurisdictions are looking on cannabis businesses as favorably as ours, our experience so far with the city of Cottage Grove has been trouble free and congenial. For citizens of counties and cities that  have placed bans on 'recreational' cannabis, at least many of you will have the opportunity to vote again. Folks in Washington were not so lucky. 

The OLCC so far has been proving itself to be more flexible than the WSLCB was in Washington. As part of the licensing process they have stated that they will make allowances for e.g. security systems that cannot meet the letter of the rules, but meet the intent. 

I am convinced, having talked to growers and dispensaries, and witnessed the OLCC rule formation process, that Oregon will have the most sensible, innovative and productive cannabis economy in the USA. We are looking forward to being a part of it. Happy New Year!

The long view on genetic progress

One of the major pitfalls in breeding programs is allowing your genetic base to become too narrow. Over time, a breeding program tends to focus on the most advanced and productive lines, while ignoring those that are further from commercial quality. It can be productive in the short run to have this focus, but in the long run it results in the limitation of further genetic progress. 

For this reason, I have been somewhat surprised by the rules established in Oregon and Washington that will make each state into genetic 'islands'. The rules state that after a short introductory window, all seeds and clones must be purchased from other producers within the state. I understand the motivation behind this (a conservative interpretation of the Cole memo), but if the rules remain the same for more than a few years, it will create a problem for growers:

As new, improved varieties are developed outside their home state, they will be faced with either becoming noncompetitive, or breaking the established rules to acquire new varieties. I don't like to see non-sustainable systems created. 

If we are lucky, within a few years legalized states will be able to initiate reciprocity agreements that will allow, at a minimum, the exchange of breeding material. 

As for NBS, we are collecting as much germplasm as we can for our breeding program. We will maintain as much of it as possible, to ensure that we have the ability to continue making genetic progress for many years to come. 

The messy realities of breeding

Cannabis cultivars are often advertised as being 'Indica', 'Sativa', or some blend of these (even getting so specific as to claim something like 20% Indica / 80% Sativa). Cultivars are advertised this way as a result of the commonly held belief is that 'Indica' cultivars have relaxing effects, while 'Sativa' cultivars are more energizing and cerebral.

Unfortunately, inheritance does not work this way. 

While I believe that the effects of different cultivars vary depending on cannabinoid (or other secondary metabolite) content, the truth is that the 'Indica'/'Sativa'  dichotomy is little more than genetic hocus-pocus.  

They say with every legend there is a grain of truth, so perhaps we will start with what MIGHT be true.

  • It is possible that pure Indica and Sativa cultivars each have a distinct chemotype that also has unique effects. 
  • It is possible, depending on the inheritance of the chemotype, that an F1 hybrid made between a pure Indica and a pure Sativa would have a chemotype (and effect) intermediate between the two. In addition, a breeder could reliably claim that the hybrid was 50% Indica / 50% sativa. 

But things fall apart after that. Any additional work with that 50/50 plant opens Pandora's box. Chromosomes segregate independently, and recombination between chromosomes may occur. If you cross two of the 50/50 plants you could theoretically get a pure 'Sativa', pure 'Indica', or anything in between. The only way to know the background of a given plant would be to test a lot of genetic markers, as was done by these researchers.

http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0133292#pone.0133292.ref007

Look at part 'b' of this figure. The colored column shows the actual percentage of Sativa (red) genetic background as determined by molecular markers, vs the reported background in numbers. There is only a weak relationship between the advertised background and the actual background. 

On a more alarming note, the same research found that in 1/3 of cases, cultivars with one name were most similar to some other named cultivar.... meaning that the consumer has little idea what they are purchasing based on name alone. 

Furthermore, the  genetic background is mostly irrelevant to the chemotype once the breeding process begins. What really matters are the specific genetic loci that control the chemotype. These loci are unknown in number and location, but could be inherited independently of the majority of the genetic 'background'. In other words, a savvy breeder could create a 99.99% 'Indica' background cultivar with a full 'Sativa' chemotype. 

I would encourage consumers to pay attention to the results from analytical labs, and their own bodies, and avoid buying into simplistic genetic explanations.  

Here is some more information on cannabis chemotypes for those interested in the subject. 

Variety - Strain - Cultivar - Landrace - Phenotype

There are differing opinions in the cannabis world over what to call a group of plants that share certain physical, genetic, or chemical traits. While I'm usually more interested in being effective than being precise, I thought it might be useful to define some terms, and maybe uncover the source of some confusion.

Species:

We all agree that cannabis plants belongs to the scientific genus Cannabis. Some scientists believe there are distinct species of Cannabis (indica, sativa, ruderalis)while others believe there is only one species (sativa) with sub-types (subspecies or varieties). They can all interbreed, so the matter is primarily one of whether you are a taxonomic 'splitter' or 'lumper'.

Variety:

Botanically speaking, a 'variety' is a sub-type of a species that has a certain trait in common with other members of that sub-type, and breeds true for that trait. If you believe there is only one species of  Cannabis (sativa), you might also believe there is a variety within this species called Cannabis sativa var. indica. Or maybe it is a subspecies instead of a variety. Some organizations (agricultural ones) consider 'variety' and 'cultivar' to be interchangeable, but the botanical meaning is quite specific. 

Cultivar:

'Cultivar' is short for for 'cultivated variety'. Most of the plants in your garden are cultivars. They might be hybrids, they might be propagated by seed or by clone, and could be true-breeding or not. What is common between them is that people create and maintain a cultivar. Continuing our example, one might be growing Cannabis sativa var. indica 'Bubba Kush'. Cultivar is, in my view, the most proper term for cultivated cannabis types. However, as I noted before, 'cultivars' are often also referred to as 'varieties'. If you want to name a cultivar, there are several rules to follow.

Strain: 

At one time this word seems to have been used somewhat interchangeably with 'variety' 'breed' 'selection' or 'race' to indicate a low level sub-type. However, it is not a term used in botanical classification today, and is not a word I have encountered in the plant world outside of cannabis.  I have run into it in biology, where a 'strain' is a sub-type of a microorganism (eg bacteria or virus) that has a particular genetic variant, such as influenza H1N1. In animal breeding, someone might refer to a particular breeding stock for a variety as a 'strain'... as in "Ben's strain of Barred Plymouth Rock chickens are heavier than Joe's", but in the vegetable breeding world, this type of difference would usually be referred to as a selection. This is true particularly when talking about older cultivars for which there may be many distinct types floating around, such as the 'Peckham' or 'Utah' selections from the 'Sweet Spanish' onion. 

Landrace: 

Another term frequently used in the cannabis community. Formally, a landrace is a cultivar (or variety) that has a specific geographical/historical origin where it developed (and to which it is presumably adapted). Landraces frequently contain quite a lot of genetic variation and have not be subjected to formal improvement processes. They are valued for their ability contribute specific traits to a breeding program (e.g. disease resistance) but are often too variable and unproductive for most cultivation purposes. 

Phenotype:

A genetic term pulled into common usage in the cannabis world, but not used commonly in other crops. Quite simply, the phenotype is the physical manifestation of an individual plant. Geneticists like to think about the phenotype as being a results of the combination of the effects of the genetic background of the organism (genotype) as influenced by the environment. 

I hope this helps those who might have questions on this topic. If you wish to discuss plant improvement, genetics or breeding, I can be reached at harold.frazier@newbreedseed.com. 

Water, Water, Everywhere...

As part of the application process for recreational licensing, the OLCC will be requiring producers to provide proof of their legal access to water for growing cannabis (a water right or access to a public water supply). This would not be a problem of itself, but it reveals a serious inconsistency in Oregon water law. 

Obtaining a new water right varies from difficult to impossible. However, Oregon law allows groundwater to be used for certain purposes without a water right. These purposes include:

  • Use of 15,000 gallons a day for your house (a ridiculous amount of water) AND
  • An unlimited amount of water for your cows, pigs, chickens, peacocks, manatees AND
  • Watering 1/2 acre non-commercial yard or garden AND
  • 5000 gallons a day for a single 'commercial or industrial' purpose

The catch is that growing plants for commercial purposes as part of the horticulture industry is not considered by the Oregon Water Resources Department to be a 'commercial or industrial' use of water. It is hard not to notice how inconsistent this law is... you can't even write about it without engaging in doublethink. 

The same issue has come up in Washington in the past, and was resolved in favor of allowing 5000 gallons a day to be used for commercial irrigation.   http://www.ecy.wa.gov/programs/wr/caselaw/images/pdf/kimvpchb.pdf

My suspicion is that the only way to fix this in Oregon is going to be a lawsuit. Maybe affected growers can put together the funds to fight this one. 

Seeds vs Clones

One of the most frequent questions we get at NBS is: why we are developing seed-based varieties, when most producers use clones?

Why not? Seeds are...

  • Portable (1000 seeds weigh about an ounce)
  • Storable (seeds can be kept for many years under good conditions)
  • Affordable (production costs are lower than cuttings or tissue culture)
  • Cleaner (seeds are less likely to carry disease)
  • Easier to handle (no propagation equipment or facilities; just put them in some soil!)

Is there any biological or genetic reason not to produce seeds? The short answer is no; the longer answer is that if you look across modern crops, those that are propagated by clones have one of the following features:

  • They have a long life cycle, which makes it difficult to produce stable varieties (fruit trees)
  • They have complex genomes - same story (strawberry)
  • They are weak seed producers (banana)

In contrast, cannabis is a annual plant with a (relatively) simple genome and is a prolific seed producer.

So, let's turn the question around and ask why do so many current growers depend on cuttings for propagation?

In my view, this is a result of the (historically) underground nature of cannabis cultivation. Producing a stable seed-based variety takes a large number of plants, which is something most cannabis growers have not had. The lack of stable varieties, combined with the limited space available for growing lead growers to maximize productivity by finding one superior plant and propagating it via cuttings. Cuttings produce a highly uniform crop, but come at a cost of labor and potential for spreading diseases.

So, the choice between seeds and clones might depend on the societal context in which they are cultivated, and we are all happy to say that context is shifting rapidly.

 

Introducing New Breed Seed

Welcome to New Breed Seed! We are a small group of Oregon seed professionals who have decided to enter the exciting world of cannabis seed. 

Cannabis seeds today are expensive and of variable quality. Our goal is to provide top quality seeds and service to home growers and licensed adult-use and medical producers in Oregon. We are not a flower production company that sells seeds on the side. Our entire effort is in the development and distribution of the best varieties for the grower and the consumer. 

In addition to providing quality selections from currently available genetic sources, our in-house breeding program will be generating new varieties with improved uniformity, disease tolerance and interesting new combinations of color and aroma.    

We can be reached through our website or via info@newbreedseed.com.

Looking forward to hearing from you!

Harold Frazier