Marijuana

Fear, Loathing, and Beating Monsanto to Marijuana Patents

Monsanto in the pot game?

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Hilary Bricken

Hilary Bricken

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.

My firm has blogged how we believe the USPTO could, in theory, grant a cannabis-related or cannabis strain patent (unlike a cannabis-related trademark). And now there’s confirmation that our belief is 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 the applicable patent statutes . . . [t]here 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.

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In August of 2015, the USPTO issued to 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 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.

But as of right now, 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.

Hilary Bricken is an attorney at Harris Moure, PLLC in Seattle and she chairs the firm’s Canna Law Group. Her practice consists of representing marijuana businesses of all sizes in multiple states on matters relating to licensing, corporate formation and contracts, commercial litigation, and intellectual property. Named one of the 100 most influential people in the cannabis industry in 2014, Hilary is also lead editor of the Canna Law Blog. You can reach her by email at hilary@harrismoure.com.

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