cannabis genetics

Patent Zero: If Big Business Continues To Pursue Cannabis Patents, What Will Happen To Small-Scale Growers And Breeders?

Much like all other life on Earth, cannabis evolved naturally — that is, until humans discovered its many uses and began breeding it to our desires. For thousands of years, people all over the world have cultivated this crop for food, fiber, medicine and fuel, and every single time they have planted a new seed, they have brought to life new and unique cannabis genetics and the potential for the evolution of more.

While most people don’t seem to understand genetics scientifically, they do understand there is massive value in rare varieties of cannabis. Indeed, different varieties present different opportunities to claim exclusivity in the marketplace, to create a brand or secure a patent — and thus a potential monopoly — on the life-changing medical and economy-changing industrial uses of this natural plant.

But who gets to own nature? It’s a fundamental ethical question, but one that is settled legally: Finders keepers. Despite the work done by nature and the countless humans who nurtured the plant and coaxed out its genetics over time, big business is already staking its claim to cannabis DNA.

A Brief History Of Patenting Nature

The first law allowing plant patents in the United States was the Plant Patent Act of 1930. The law was prompted by the work of horticulturist Luther Burbank, who was said to have developed more than 800 unique plant varieties, mainly food crops. The law specifies that plants can be patented only if they were cultivated and asexually produced (cloned or grafted). The purpose of allowing things like the pluot (i.e., a plum crossed with an apricot) or the Granny Smith apple to be patented was meant to promote more work like that of Burbank’s.

But it wasn’t until 1981 that the United States Patent and Trademark Office (USPTO) began to issue patents for natural plants, following the 1980 US Supreme Court decision, Diamond v. Chakrabarty.

Ananda Mohan Chakrabarty, who at the time worked as a genetic engineer for General Electric (GE), developed bacteria that was capable of breaking down crude oil, and so GE and Chakrabarty sought a patent. The USPTO denied their initial request because the bacteria was a “living thing” incapable of being invented by anything but nature. Chakrabarty and GE appealed to the US Court of Customs and Patent Appeals (USCCPA), arguing that because they genetically modified the organism, it could not exist in nature. The USCCPA ruled in their favor, saying, “The fact that microorganisms are alive is without legal significance for purposes of the patent law.”

Sidney A. Diamond, then-commissioner of patents and trademarks, appealed that decision, putting the case before the US Supreme Court. Diamond lost, with the court ruling that anything that has been modified genetically can be patented, paving the way for many of the genetically modified crops that have now become industry standard in big agribusiness.

Today, the USPTO’s guidelines on patenting living things are even broader, allowing anyone who “invents or discovers and asexually reproduces any distinct and new variety of plant … may obtain a patent therefor.” This means that “simple discovery” is now akin to “invention” when it comes to patenting DNA.

While patenting plants has become the standard in the US and to some extent Europe, it remains controversial globally. The vast majority of drugs or drug compounds available on the market are mimicked or derived from active plant compounds already in use by humans, particularly those in tropical and subtropical regions with high biodiversity and a historical culture of herbalism.

Environmental activists like Vandana Shiva in India refer to this process as “biopiracy,” or the act of biopharmaceutical firms isolating and patenting plant compounds in for-profit drug or other product development. Shiva points out that the bulk of biopirated drugs are coming from countries like India and the bulk of the patents are coming from the West. She and other activists successfully argued for the protection of traditional agriculture on the Indian subcontinent.

In India, plants and other natural life — including animals, species and seeds — are unpatentable. Further, since the early 2000s, the government there has licensed hundreds of thousands of plants as traditional-use treatments that are considered public property, “free for anyone to use but no one to sell as a ‘brand.’”

India has also fought international patents, even successfully removing a patent on a part of the neem oil plant in the European Union in 2005. The government was motivated by the “bioprospecting” of foreign companies and its discovery of 5,000 patents issued globally for plants originating from and cultivated in the Indian region.

“More than 2,000 of those belong to the Indian systems of medicine. … We began to ask why multinational companies were spending millions of dollars to patent treatments that so many lobbies in Europe deny work at all,” Vinod Kumar Gupta, who at the time oversaw the Traditional Knowledge Digital Library, told The Guardian in 2009.

Still, thanks to the rise of Big Agriculture in the late 20th century, biodiversity of staple crops like corn, wheat and soy has diminished, and in its place, patented, genetically modified commodity crops with a virtual monopoly are now on the market.

How A Patent Works

Patents are expensive, but valuable. It works like this: First, an inventor files an application, in which they must provide details on four sets of criteria:

1. Whether or not the invention can be patented under law
2. Proof that the invention is truly new
3. The invention is useful
4. The invention is non-obvious

Once the application is received, it is reviewed by a USPTO examiner who evaluates the claim. The examiner and applicant usually go through a series of rejections and revisions, as it is rare a patent is approved on initial filing.

“Add in a little bit of capitalism and suddenly what was once a system intended to aid inventors and help inventors protect their work becomes a big money game. Patents tend to cost anywhere from five figures to apply for, maybe six to actually get a patent accepted,” says Beth Schechter, executive director of the Open Cannabis Project.

Once a patent is accepted, the inventor has a 20-year monopoly over that invention. Enforcement on the patent is up to the patent holder, who can demand licensing fees from others who use their invention, even unknowingly, or they can prevent rival products from coming to market. Challenging a patent is expensive and time-consuming; it is often easier to pay the fee than to fight them, making patents incredibly valuable.

“With big money comes corporatization and within that framework, small businesses struggle, fold or get eaten,” Schechter adds.

In Silicon Valley, as tech was in its nascent stages, patent trolls emerged to patent intellectual property associated to what was until that time considered open-source software development. These patents have been the source of a lot of frustration — and a lot of money for the trolls. According to a 2014 study from the Stanford Law Review, patent trolls tend to go after small companies with fewer resources to challenge said patent, writing that “at least 55 percent of unique defendants in troll suits make $10M or less per year.”

Schechter warns that patents on cannabis genetics threaten the incredibly prohibition-driven biodiversity of the cannabis species.

“We have seen this with corn, soybeans and other large agricultural crops. We really don’t have any reason to think this wouldn’t happen with cannabis,” she says.

Monsanto: The Elephant In The Room

In any discussion of patented plant genetics, it would be remiss to leave out Monsanto, if for no other reason than conspiracy theories about the corporation and GMO cannabis have been ever-present in the cannabis community for the past few years.

In 1974, Monsanto invented the notoriously toxic and now-ubiquitous herbicide Roundup, a.k.a. glyphosate. By the early 2000s, it was the most widely used herbicide in the United States — well after its patent had expired — despite concern about allegations the herbicide was a likely cause of cancer.

After the 1980 Diamond v. Chakrabarty decision, which opened the door to patenting of living but genetically modified organisms, Monsanto became the world leader in genetically modified crops. The vast majority of commodity corn and soybean crops were engineered to be “Roundup ready,” meaning farmers could spray the whole field and kill just weeds, not the crop itself.

Each new Roundup-ready crop is patented. Farmers using these varieties are promised the highest yields (essential in a commoditized marketplace) and must purchase the seed, soil conditioners and pesticides direct from Monsanto. They are prevented from saving their seeds, ensuring that they must continue buying them, year after year, from Monsanto.

Monsanto is known to be aggressive in patent enforcement and has taken farmers to court for saving seeds or not paying royalties on them. The issue has become so controversial that the company has dedicated a whole web page to explaining its position to the public:

Patents are necessary to ensure that we are paid for our products and for all the investments we put into developing these products. This is one of the basic reasons for patents. A more important reason is to help foster innovation. Without the protection of patents there would be little incentive for privately-owned companies to pursue and re-invest in innovation. Monsanto invests more than $2.6 million per day in research and development that ultimately benefits farmers and consumers. Without the protection of patents, this would not be possible.

When farmers purchase a patented seed variety, they sign an agreement that they will not save and replant seeds produced from the seed they buy from us. More than 325,000 farmers a year buy seed under these agreements in the United States. Other seed companies sell their seed under similar provisions. They understand the basic simplicity of the agreement, which is that a business must be paid for its product. The vast majority of farmers understand and appreciate our research and are willing to pay for our inventions and the value they provide. They don’t think it’s fair that some farmers don’t pay.

Could Cannabis Genetics Be Locked Away Forever?

In a 2017 article for GQ, investigative journalist Amanda Chicago Lewis followed a tip provided to her by Mowgli Holmes, CEO of cannabis genomic company Phylos Bioscience:

A secretive company called BioTech Institute LLC had begun registering patents on the cannabis plant. Three have already been granted, and several more are in the pipeline, both in the U.S. and internationally. And these are not narrow patents on individual strains like Sour Diesel. These are utility patents, the strongest intellectual-property protection available for crops. Utility patents are so strict that almost everyone who comes in contact with the plant could be hit with a licensing fee: growers and shops, of course, but also anyone looking to breed new varieties or conduct research. Even after someone pays a royalty, they can’t use the seeds produced by the plants they grow. They can only buy more patented seeds.

“Utility patents are big. Scary,” Holmes told Lewis. “All of cannabis could be locked up. They could sue people for growing in their own backyards.”

While Lewis was able to identify two of the primary investors in the corporation, it is still unclear what BioTech Institute LLC intends to do with the patents. In the meantime, it’s is not the only company that has patented cannabis. Steven Kubby of Cannabis Science Inc. has a patent for his Ecuadorian Sativa variety. With a cadre of new biotech firms getting into pharmaceutical products derived from cannabis, even more patents are expected along the way.

The idea that a company like Monsanto or BioTech could snatch up patents before cannabis is federally legal worried Holmes in particular enough to do something to stop it, and so the Open Cannabis Project (OCP) was born. According to the OCP website:

Cannabis is in danger of going the way the rest of agriculture has gone: toward monoculture, centralization, and restrictive patenting.

The Open Cannabis Project (OCP) was established by industry leaders to resist these forces and to protect genetic diversity of the Cannabis plant as well as the economic diversity of the cannabis industry.

The US Patent and Trademark Office (USPTO) has started granting patents on cannabis varieties. Agricultural patents are generally bad for the environment, for farmers, and for the future of crop plants themselves.

For cannabis, they’re a disaster.

Because of this threat, the OCP has made it a goal to work to bring cannabis growers, breeders and labs together to open source genetic and chemical data about the varieties they are growing. The database OCP has built is in its early stages, but is already providing the hard proof of prior use needed to prevent patents on commonly used clones, seed families, and otherwise patentable plant material emerging from the illegal market.

“As a bonus, we can create the biggest, most kick-ass, scientifically verified cannabis data source the world has ever seen,” Schechter says.

Joining OCP in 2017, Schechter comes from a background in tech, community education, design and data visualization, with a particular focus on data surrounding gardening, technology and nonprofit activism.

“We [at OCP] are in the space of learning, curiosity and research. Patents are something that bring a lot of feeling for people. We are all figuring this out together,” Schechter explains. “Patents in and of themselves aren’t necessarily bad things. They become problematic when they refer to something that is not actually new. Ultimately, if a patent removes something from the public domain that was supposed to be inside of it, then it’s a problem.”

OCP president John Gilmore is familiar with how patents can be used to dominate new markets. He was one of the earliest employees at Sun Microsystems and cashed out big, which allowed him the time and resources to focus on activist causes, including cannabis legalization. To fight patent trolls in Silicon Valley, he founded the Electronic Frontiers Foundation (EFF), which has worked to patent and open source code to prevent it from being monopolized, otherwise known as defensive patenting.

Gilmore’s work and expertise from his time at EFF has helped shape the mission at OCP: To prevent predatory patents and slow down corporate consolidation and conglomeration.

“Part of what we are trying to do with the OCP is to make it harder for those guys to use that strategy,” Gilmore said from the audience at the Cultivation Classic in Portland last May, where Schechter was presenting the new live database.

Distrust In The Cannabis Grow Community, And A Ticking Clock…

A cannabis variety’s genetics must be publicly available for at least a year before it is considered public domain. Schechter says the clock starts ticking the minute that data is open sourced, so growers must be encouraged to submit more data now. The cannabis grower community, however, has been for the most part distrustful about publicly sharing its DNA.

In her previous work, Schechter learned that data isn’t so cut and dry. Different stakeholders have different intentions, values, and motivations with the data they produce and collect. She acknowledges that data is something people “have a lot of feelings about,” but warns that evidence of prior use is the best weapon researchers and small-scale growers have against major corporations who attempt to lock up genetics, as this shared data is in the public’s interest.

“Without documentation, how can any of these farmers prove they had things before they were patented? We have yet to see how this will play out,” Schechter says.

“The data is free for everyone. It isn’t going to be used for anything but to prove that all of this has been in prior use,” she continues. “When it comes to sharing information about cannabis, you would think in some ways that it becomes easy to steal if it’s open source, [but] the truth is that by putting it out there, it is harder to patent it. We don’t have a way to take genetic data and reverse engineer it, that is an unfounded concern. … The longer people wait to do this, the more opportunity there [is] for other players to get patents and put them on the market.”

Due to decades of prohibition, underground growers competed on a truly free market and generated a wealth of biodiversity, which could now be quickly lost if cannabis is produced in the way other big agricultural commodities are — and so could the opportunity for small-scale growers and businesses to get a foothold in this burgeoning industry.

“Biodiversity is good for the species and economic diversity is good for the people tending the species,” Schechter explains. “Biodiversity and economic diversity have to do with real sustainability for both the farmers and for the plant. It would be the most heartbreaking tragedy to see both of those disappear after so many years of hard work, after so many people have gone to jail. It would be really sad for humans everywhere to see that go away because of corporate marijuana.”

Whose Cannabis Seeds? Our Cannabis Seeds

Green House Seed Company, based in Amsterdam, is one of the most famous and prolific cannabis seed banks in the world. It’s founders, Arjan Roskam and Franco Loja, are well-known for the popular documentary series Strain Hunters, which followed the duo as they traveled the world seeking out the seeds of isolated landrace genetics.

In 2017, Roskam and Loja traveled to the Democratic Republic of the Congo in search of a rare high-THCV strain with a film crew from Vice, who documented the trip in an episode of its long-form HBO news series. The partners viewed the Congo as Africa’s cannabis genetic gold mine because decades of war and a lack of infrastructure ensured genetic isolation of the plants. The episode depicts how, when they finally found the Congolese variety they were looking for, the local guides who brought them there used internet-connected phones to piece together the fact that Green House would be using the seeds to make millions of dollars.

Loja pointed out that the model of seeking out plants to make exclusive was not invented by Green House, but that the pharmaceutical industry has been strain hunting plants to make or synthesize into drugs for nearly a century. The incident did, however, influence Loja personally to return to the Congo to try to organize for legislative change and business opportunities for the local population that ultimately had been fostering the genetics for generations — despite the wars and lack of infrastructure.

He contracted malaria there and died in January 2017.

Roskam and Loja’s visit to the Congo highlights the ultimate fallacy in using patents to create genetic exclusivity in favor of corporate consolidation and profiteering. Cannabis is a product of both its nature and its nurture, and over time nurture affects nature. If nature evolved it and millions of people throughout time nurtured it, how can whoever possesses it now claim ownership of it?

The effects of these patents on the cannabis industry still remain to be seen.

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