Breeders’ rights and the preservation of cannabis cultivars – Part 2

Strainly‘s goal is to foster the preservation of cannabis genetics and phenotypes with an inclusive community spirit. Breeding is the manifestation of passion, creativity and hard work. Breeders should find achievement and reward in playing a key role in the conservation and evolution of the plant. Cannabis Intellectual Property is becoming a sensitive topic among breeders. But now that we are a bit more familiar with the concepts of “plant protection” and “public domain”, we should be able to execute on a strategy to protect biodiversity and breeders’ interests.

In our previous article, we covered the principles and mechanisms through which a breeder can be granted exclusive rights over a cannabis cultivar. We also described what are the implications of being granted exclusive rights over a cultivar. We believe that preserving cannabis biodiversity should be a priority for the cannabis community/industry as a whole (as opposed to a “hole”…), and that breeders should make informed decisions when it comes to protecting their own strains.

PRESERVING CANNABIS BIODIVERSITY

WILL HISTORY REPEAT ITSELF?

With legalization, cannabis could follow the same route as the rest of agriculture, a route toward monoculture, centralization, and restrictive patenting. There’s a number of documentaries on the issue.

Today, crops available to farmers and to the public are a lot less diverse and abundant than they used to be in the 1950s. Most fruits, vegetables and cereals that are consumed in western countries nowadays (and ever increasingly across the rest of the world), are grown from patented varieties or cultivars. Many of them are GMOs, particularly when it comes to cereals/grains.

Though levels of restrictions on seeds vary from a geography to another, a large number of heirloom varieties have been phased out of the market across many countries. Seed laws may only allow you to grow public domain cultivars for your own consumption…provided that you are able to find the propagation material.  Where there were hundreds of (heirloom/public domain) cultivars of tomatoes available, there are now a couple dozens patented tomato cultivars available and legal to propagate in geographies enforcing restrictive seed laws.

WHAT IT MEANS FOR CANNABIS

It goes without saying that it is extremely critical for the cannabis community to collectively take care of public domain strains to avoid facing a similar situation a few decades from now. Given the persistant stigma around cannabis, groups of lobbyists may find it even easier to convince law-makers to ban public domain strains, in the name of “public safety”, claiming that “engineered and patented cultivars are indeed safer for the public”. We can’t say we didn’t know.

As this article is being written, both the Canadian Food Inspection Agency and the US Patent and Trademark Office (USPTO) have started granting patents on cannabis varieties. There is no reason to expect a different outcome than what we observed for other crops. Patented crops are usually going hand-in-hand with monoculture, chemical intensive techniques and dependence of farmers toward the seed companies. Patented crops are mostly serving the holder of exclusive rights over the cultivar.

According to the Open Cannabis Project (OCP), patents in the world of cannabis are a disaster:

“The first cannabis patents issued by the USPTO are the kind of overly broad patent protection that kills innovation instead of incentivizing it. They’re called utility patents, and they don’t cover single varieties: they cover huge categories of cannabis. Which means that just a handful of such patents could potentially lock up all of cannabis.”

What should we Do?

Whether in Canada, the US or any member country of the UPOV, patent offices and ministries of agriculture (e.g. the USPTO, USDA, CFIA and their equivalents in other countries) can’t legally grant patents that would cover existing cultivars (i.e. public domain cultivars), BUT,  there has to be proof that they exist! According to the OCP, “we can block this process by providing this proof: documenting genetic and chemovar data for all of the cannabis varieties in existence today”.

the public domain, a safe haven?

reminder of the basics

Remember, the owner of a (cannabis) cultivar can be granted  a Plant Variety Protection (US) or Plant Breeder’s Rights (Canada) if it can be demonstrated that the variety is:

  • New;
  • Distinct;
  • Uniform; and
  • Stable.
As we mentioned in Part 1, the vast majority of existing cannabis cultivars doesn’t meet these criteria and is therefore in the public domain. Cannabis cultivars are in many cases not eligible for plant protection (e.g. PVP, PBR or Plant Patent) for the simple reason that they have been available to the public for more than a year (i.e. they are not new). However, there are actions you can take as a breeder if your strains are in the public domain, to avoid any frustration in the future. You should make sure that your cultivars are known in the public domain in order to prevent any third-party from “patenting” your cultivar (i.e. an overreaching PVP, PBR or Plant Patent on that strain you bred years ago…).

GETTING MY STRAINS KNOWN IN THE PUBLIC DOMAIN

The USPTO, PVPO and CFIA consult the data available on public domain creations prior to allowing plant protection on a cultivar. Until recently, there wasn’t any database for these “patent offices” to check against. But, there are now people with the same concerns as ours who decide to create such public databases to document “prior art”. Kannapedia and the Open Cannabis Project (OCP) both have their databases to which labs and individuals with test results can contribute. In addition, the National Center for Biotechnology Information (NCBI) also accepts cannabis genetic test results from testing labs. Now, when it comes to proving that your cultivar has been made available to the public for more than a year, then… Strainly is an option you should consider, since it allows you to stay in control of when and how your strains are available to third parties, relying on fewer intermediaries, while also keeping a better control on WHO gets your creations. Finally, the dated reviews you receive for your strains on Strainly, can be used to demonstrate for how long they have been made available to the public.

Genotyping My Strains

This part is an important one. When looking at the criteria to be met for a strain to be patentable, genotyping your cultivar may prove very helpful to secure its position in the public domain. Genotype reports will usually show the closest genetic relatives, the line stability, the population profile, identical clones, cannabinoids concentrations, terpenes combinations and more. This data will reinforce the position of your cultivar in the public domain when combined with the fact that it was made publicly available for more than a year (see above sections).

There are various laboratories that can perform such tests. Below is a non-exhaustive list:

Conclusion

Securing your cannabis cultivars into the public domain is something we can only recommend breeders doing. Not only does it serve the interest of breeders who created strains that are over a year old, but it serves our entire community and the preservation of the genetics of our favorite plant. Bear in mind however, that while such an initiative will imply efforts and costs (for lab testing), it won’t give you exclusive rights over your strain. It will only prevent someone else from acquiring exclusive rights over your creation and reap the benefits of your work. However, once you went through the process, your strains are forever in the public domain and you do not need to pay annual fees nor renew your protection later on. Being proactive is key, since it is possible to challenge an overreaching protection over your own strain, but the process will cost you time and money.

Some breeders may consider that their new creations are worth putting the money and efforts to obtain a PVP, a PBR or a Plant Patent (potentially in various countries). Remember, PVP Certificates and PBRs imply spending several thousands of dollars to obtain and maintain associated “exclusive rights” (higher costs for Plant or Utility Patents). PVP Certificates or PBRs do not prevent anyone from infringing them, they are an entitlement to spend more time, money and efforts to track, demonstrate and fight if/when someone used your cultivar without your prior consent. They come with obligations that can be costly to meet if you’re willing to maintain your rights. Always compare the benefits and the costs when taking that route.

Finally, enforcing exclusive rights (e.g. patent or PVP) over a cannabis cultivar in the US could expose both plaintiff and defendant to prosecutions, in relation to FDA Schedule 1 drugs (demonstrations require carrying, manipulating and distributing cannabis plants). Quite ironically, both the USPTO and USDA process applications and issue PVPs or Patents for a plant that is still on the FDA’s Schedule 1.

A history of passion, trials and errors proves that it is possible to be creative and innovative in a public domain-based cannabis breeding context. A vibrant public domain genetic pool is essential to a thriving cannabis industry and community. We believe in an inclusive model where “microgroweries”, craft, small scale farmers and growers remain relevant through differentiation with exclusive cultivars, adapted to their cultivation environment and techniques. A model that empowers urban and rural communities through diversification of the crops, improved resilience and environment conscious practices.

craft cannabis cannabis breeders intellectual property public domain cannabis strains cultivars

6 thoughts on “Breeders’ rights and the preservation of cannabis cultivars – Part 2

  1. I rant on various pot forums about the breeders that only offer their strains in feminized versions to keep me and other hobby growers from replicating those seeds without crossing with a different strain or trying to self the plants to make more feminized versions of the same.

    Hard to do without a genetically different female as doing it with a clone of the same plant ends up with mongoloid children. Same reason you shouldn’t make babies with your sister.

    Fem plants are for the lazy growers that don’t want to take the time to sex their plants and breed the best of them to maintain a strain in it’s purity.

    Different for humans. Go ahead and make babies with a different raced person so in 200 years we’re all little brown babies and can drop this racial BS. Now we just have to figure out a way to get all the “gods” out of the equation and we may eventually have world peace!

    I flat-out refuse to buy fem seeds even when I see a strain I’d love to have. One plant can produce thousands of seeds and not one of them is worth more than $5 to me if that. So many are just F1s and offered at $10+. That’s blatant ripoff and any reputable seed bank would refuse to list them unless $2 each or less. Doesn’t take much work or expertise to crank out tons of F1s. I’ve been doing it for over 20 years.

    Cash crop growers and most breeders are no less greedy than the corporations that vie to rule cannabis and food world wide.

    Screw ’em all!

  2. The OCP is a fraud. We’ve been putting cannabis genetics public since 2011 at Medicinal Genomics. They have intentionally omitted our work for what appears to be commercial associations with Phylos.

    The DNA sequencing methods they use are not reproducible and cannot achieve any of the stated goals of the project. Any genome center worth their salt would throw all of their data out as the methods are based on single amplicon PCR per loci, very short reads, and exhibit allele specific primer bias. Run their public data through pipelines built at the Broad/MIT and all of their data gets trashed as it’s worthless.

    Their poorly managed commercial connections to Phylos pollutes the whole project. Phylos has circulated biz plans calling their sex test a “massive data intake tool” with plans to release their own unique strains and compete with their own customers.

    If they are so open, why do they censor data that is so easy to find? Are they really doing the community a service by limiting the prior art scope because they are afraid of us as a competitor?
    Isn’t science built on referencing other people’s work? What does this censorship say about their scientific ethics? They don’t have much of a scientiific publication history in Genomics so I’m not surprised their scientific endeavors get corrupted by their conflicts.

  3. The patents in question have absolutely zero to do with owning rights to commercially-available strains, and are strictly for the purpose of treating disease under the guidelines set by the FDA/DEA.

    These corporate scientists are far more advanced than any commercial breeder in existence –> likewise, so are their cultivars.

    Biotech already [created] their own cultivars which are completely devoid of THC, with pre-determined cannabinoid-content and pre-determined terpenoid-profiles

    These corporations have no interest in our strains…. so why would they want rights to them????

    ~

  4. While applying for a formal PVP may not be prudent for Cannabis at this time, there is no reason why breeders cant insist purchasers to sign a contract that provides the same IP rights as PVP. However, many breeders are currently requiring purchasers to sign contracts that go far beyond the protections provided by PVP. PVP does not protect genetic material from (1) use in other breeding programs OR (2) farmers saving seed for personal use, yet I have seen many breeders requring purchasers sign contracts with these provisions in them! Any such agreement is UNENFORCEABLE even if Cannabis laws were changed today and those breeders demanding such strict provisions are a disgrace on the industry. Conventional Cannabis breeders should not expect IP protections equivalent to those provided to GMO patent holders now or ever.

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