Many cannabis companies spend significant resources developing new cannabis varieties or refining popular genetics. As they do so, more and more are looking for strategies to protect those investments. Plant patents for allegedly new cannabis plants are becoming increasingly common, but are plant patents the best way to protect cannabis genes?
In addition to traditional security measures, there are 3 types of intellectual property available that can be used to protect new cannabis strains: (1) plant patents, (2) invention patents, and (3) plant variety protection law. Each option has its own set of benefits and comes with its own registration requirements.
Plant patents for cannabis genes
Plant patents are one possible option for protecting a newly created cannabis variety. Plant patents can protect new plant varieties capable of asexual reproduction.
Cannabis is usually a sexually propagated plant: both male and female versions can contribute genetic material to the offspring (but only female plants produce the cannabis-rich flowers most people are interested in).
However, the asexual cannabis plant is relatively easy to propagate by cloning or cuttings. Newly created cannabis strains, whether created by mistake or by intentional crossbreeding, may be eligible for a plant patent once they have been reproduced asexually.
The drafting and prosecution of plant patent applications is relatively sketchy compared to other types of patents, which makes patenting cheap and efficient. But the trade-off, and the reason plant patents are not so popular for hemp or other hybrid crops, is that the scope of protection afforded by plant patents is very limited. Botanical patents cover only Genetically identical copiesreproduced from the claimed plant.
“If a plant is patented, the grant shall include the right to exclude others from asexually reproducing the plant, and from using, offering for sale, or selling the plant so reproduced, or any of its parts…” 35 USC § 163.
This means to infringe a plant patent, one must directly reproduce the patented plant—a narrow rule for an infringement claim. A plant patent does not prevent a person in possession of an authorized plant from crossbreeding or sexual reproduction. In practice, in the absence of direct evidence of theft or infringement of a patent license, it is extremely difficult to prove infringement of a vegetable patent.
Utility patents for cannabis genes
Patent is the most popular flavor of patent and is the preferred tool of major agricultural genetics companies. It is more expensive to obtain than botanical patents, but it can provide a much broader range of protection.
Patents are used to protect methods, devices, and chemical compounds. Because patents can protect new chemical compounds, the inventor of a new strain of cannabis can claim a plant, seed, or other plant part that has a specific genetic sequence (in another meaningchemical composition).
One of the main advantages of plant patents over plant patents is that they can prohibit both hybrid and sexual reproduction. This means that the owner of a utility patent can, if desired, prevent a customer from replanting seeds harvested from a licensed plant.
Utility patents require that the inventor describe the claimed invention in sufficient detail to enable any person of ordinary skill in the art to make and use it as required (after the patent has expired). Thanks to gene editing technologies such as CRISPR, it may be possible to meet the enabling requirements of some transgenic cannabis strains by characterizing the process of gene editing and reproducing gene sequence base pairs. In other cases where the genetic sequences are more complex or unknown, as is usually the case with cannabis, the inventor must deposit samples with the patent office so that others can reproduce the invention.
Plant Varieties Protection Act
The last means that can protect the intellectual property of a new strain of cannabis is the Plant Diversity Protection Act of 1970 (“PVPAPVPA provides protection similar to a plant patent but is specifically designed to protect any new, distinct, standardized, established sexually reproducing plants, such as cannabis. 2018 Bell Farm She extended this protection to plants that reproduce asexually.
However, the PVPA has a strict requirement that at least 3,000 seeds of a claimed plant species be deposited with the USDA. The deposit requirement adds an extra wrinkle for cannabis breeders. All seed deposits must be deposited at the USDA warehouse in Fort Collins, Colorado. And the USDA will not accept deposits of plants classified as controlled substances, including cannabis.
However, in January 2022, the DEA issued a Opinion It is reported that hemp seeds contain less than 0.3% delta-9-THC (in another meaning Almost all of them) are not controlled substances. This decision should open up PVPA protection for the cannabis variety, but it is not yet clear that the USDA will follow the DEA’s stance and accept cannabis seed deposits.
Each type of genetic protection comes with its own set of benefits and challenges. In addition to physical security, reliable staff, and well-drafted contracts, the best strategy for protecting proprietary cannabis genes is a web woven from patents and pseudo-patent rights.