How strain patents could shape the future of cannabis

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Cannabis breeders have been at the forefront of the genetic boom that now boasts hundreds of varieties, not to mention millions in tax revenue, but they haven’t always been able to use legal methods to distinguish their hard work and results, writes Danielle Guercio. Yet, as the industry matures, an ever-expanding index of the cannabis plant's unique expressions will be driving medical research and big recreational capital — but who will be holding the paperwork?

Currently, there are a few methods for those looking to protect their proprietary plants. Tom Zuber, managing partner of Zuber Lawler, has been working with cannabis businesses for over a decade, guiding entrepreneurs through many phases of growth. Intellectual property is a critical part of business in any industry, says Zuber, with cannabis being no different.

"Without properly protecting those inventions, including new cannabis strains, you may find that you have just done all the research and put in all the work just so that everyone else can profit from your efforts," he says. He explains that someone with a new strain can apply for one of three types of protections with the US Patent & Trademark office: utility patents, design patents, and plant patents.

The most basic, a utility patent, protects the invention of new and useful machines; processes; formulas; articles of manufacture; or new and utile improvements to something. A design patent, on the other hand, protects novel, decorative designs inherent in or applied to a manufactured item. And lastly, plant patents, explains Zuber, "are available for cannabis strains that meet certain criteria, including that it is new, asexually reproduced, the product of plant breeding, and is both stable and distinctive.” The patent must also be filed within a year of the first sale, leaving little time to waste.

This is mostly a good thing, but smaller businesses may not always be able to complete the extensive legwork of obtaining a patent. It’s a process that Zuber says takes loads of documentation, details, and patience. When the pharmaceutical industry comes around to making manufactured cannabis based medicines, they will bring along not only their patent strategies, but their capacity to file them quickly, en masse. Patents will be necessary for innovation, and presumably should not threaten craft business (assuming the patent holders don't monopolize any part of the cultivation process).

To learn more about strain ownership (or lack thereof), Civilized caught up with the legendary Mario Guzman, founder of Sherbinskis and creator of the influential Gelato, a leading strain leading across the country. While Gelato has become popular among dozens of other growers, Sherbinskis remains the reputed creator of the original variety.

“I think it was a perfect storm of technology, culture, and cannabis that collided over 10 years ago," Guzman says of how Gelato got so popular. With social media as a broadcasting tool, local Bay Area rappers and artists helped bring attention to the strain throughout California. Thanks to friends within the Sherbinskis crew, Gelato became a studio favorite, then an Instagram mainstay for weed lovers.

This virality kept customers returning to Sherbinskis as the original brand, despite that other growers began cultivating their own Gelato, too. “A grower’s ownership of a strain can almost be compared to the relationship between a mother and her child," Guzman says. "Even though she created and birthed her child, there are instances where the child might not grow up with their mother, or [will] lose her somewhere in life.”

Gelato spread thanks to a few of the original seeds from Sherbinskis. “That's how it became a global strain," Guzman says. "People on every street in America had Gelato and it just went viral organically through the seeds.”

No matter who grows Gelato, Guzman says he knows he's the one responsible for bringing its two parent strains together. And his customers know that, too, thanks to the strong Sherbinskis branding. “For people to associate our strains so much with us, that is actually what gives Sherbinskis real ownership in culture," he adds.

However, given the proliferation of Gelato among hundreds of growers, it's clear why things will need to shift to protect a breeder's creativity. Not everyone gets the recognition for their creations the way Guzman and Sherbinskis do.

“It is unclear how many plant patent applications have been filed for cannabis strains, but we have seen a number of these applications start the process and then die along the way for one reason or another," says Zuber. "While the plant patent recently approved for our client appears to only be the second of its kind approved by the US Patent Office, we are very confident that it won’t be the last.”

In the 1930s, one of cannabis’ first foes, John DuPont, fought to take hemp out of America in the 1930s to boost his company's products, including plastics that pollute the earth today — but one of the conglomerate’s current patent policing strategies , however, could be used by cannabis industry players in the future. Currently, DuPont uses seed patents to sue farmers who replant their GMO seed, rather than purchasing new seed from them each season, a seemingly counterproductive tactic that could spread into cannabis.

Stephen Martin, co-founder of Gene Pool Technologies, thinks that without protections for proprietary technology, we won’t get the FDA approved treatments and studies that we desperately need. “Cannabis has huge potential for pharmaceutical research, but actually getting cannabis-based treatments approved costs tens of millions of dollars," he says. "And without that ability to protect relevant findings, the funding will never be there.”

Once federal prohibition is lifted, when a new strain is created, businesses will take steps to maintain advantages they have worked towards, like patenting plants and going after anyone who grows or sells them without authorization. In this new landscape, Zuber thinks that it’s unlikely we’ll see many battles over the classic strains — too much time has passed for patent filing. “Even if you can show that the strain is unique, if it can be shown that it has been sold or offered for sale for more than a year, the US Patent Office will likely be unwilling to issue the patent," he says. "The strain will be publicly available for anyone to use.”

Growers either have to act immediately on their new strains or risk losing the rights to their creation. In the black market days, collaboration was crucial to cannabis genetics. In these legal times, we may see more closed off innovation once more money is at stake. Guzman thinks that's sometimes part of the game: “That plant might be born by the grower and in its lifetime sold off to someone[else].”

We can’t see what will happen tomorrow in the cannabis industry, but more invention benefits everyone. The benefits of cannabis innovation could be widespread, especially in the medical community. When and if federal adult use regulations come through, the green rush will dismantle many of the old barriers that kept big business out of cannabis, but quality heritage businesses must be a part of the equation — we cannot afford the cultural loss of those who have carried the industry this far.

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