Marijuana Patents: Fear, Loathing, and Beating Monsanto
Some of you may have noticed that on the day before 4/20 this year, Monsanto tweeted the following public service announcement:
Tomorrow is 4/20. FYI: Monsanto has not & is not working on GMO marijuana. We address other Monsanto myths here: http://monsanto.info/23XSjum
But what about in the future? Is Monsanto GMO marijuana a possibility? That’s anyone’s guess. But the existing state-legal cannabis industry is already taking steps to curb the Agro-giant’s (and anyone else’s) control over marijuana patents. And, according to VICE News, a patent war could be looming as a result.
We’ve blogged in the past that we believed that the USPTO could, in theory, grant a cannabis-related or cannabis strain patent (unlike a cannabis-related trademark). And now we have confirmation that our belief was correct. VICE News reported last week that an unnamed spokesperson for the USPTO admitted that,
In general, the [patent] office issues both utility and plant patents to all types of plants, including cannabis and poppy, provided the applications meet and comply with thehere are no special statutory requirements or restrictions applied to marijuana plants.
Some of the issues surrounding the ability to obtain a patent for a given marijuana strain (whether it’s a utility or a plant patent) revolve around the “novelty and non-obviousness” requirements for a patent. However, you are not going to be able to secure a patent for an “invention” that already existed in the public domain before you filed a patent for it, and tons of well-known strains have existed in the public domain for decades (though at least one Portland-based company is trying to remedy the relatively unknown “authorship” of some of the best known strains). However, opportunities for new inventions when it comes to strains and cannabis genetics are emerging and industry players are starting to take advantage of the patent system.
In August of 2015, the USPTO issued to California-based Biotech Institute, LLC what is apparently the first-ever marijuana breeding-related patent (which Biotech Institute filed in 2013). See here. The abstract for the patent (which is part of a 147-page application) states that “[t]he invention provides compositions and methods for the breeding, production, processing and use of specialty cannabis.”
Monsanto currently maintains that its seed-trade does not include marijuana and that it just isn’t interested in the cannabis industry. Which makes sense so long as marijuana is still federally illegal, especially since Monsanto is publicly traded and its involvement with cannabis could create new risk for its shareholders who don’t need to violate federal law to receive a healthy return. Industry fears of Monsanto’s involvement with GMO marijuana stem from Monsanto’s willingness to sue farmers (large or small) who appropriate its seeds and agro-innovations in alleged violation of the company’s licensing agreements. Nonetheless, unless and until Monsanto starts playing in the marijuana sandbox, cannabis cultivators and processors still have a significant window of time to protect their creations. Especially now that patents are officially a playing piece in the game.
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