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.