Pubdate: Thu, 19 May 2016
Source: Portland Mercury (OR)
Column: Ask a Pot Lawyer
Copyright: 2016 The Portland Mercury
Author: Vince Sliwoski


Patenting Isn't Easy, But It Can Be Done

I CULTIVATED an innovative new strain of weed. Can I patent it?

Yes, you probably can.

The first weed strain patent was issued last August to a group of 
California breeders. This raised some eyebrows, and the US Patent and 
Trademark Office (USPTO) has since confirmed that it is processing 
both plant and utility patent applications for individual varieties 
of cannabis (and also poppy). To acquire a plant patent, your weed 
strain must simply have a distinct characteristic. To acquire a 
utility patent, however, it must be new and non-obvious as compared 
to existing strains. It also must exhibit different characteristics 
from weed in its natural state. Aside from that, one USPTO 
spokesperson recently assured a Vice magazine journalist that "there 
are no special statutory requirements of restrictions applied to 
marijuana plants." So, there you have it.

People tend to have strong feelings about patents, and about cannabis 
patents in particular. Specifically, they argue that patents hurt 
competition and inflate prices; create monopolies and extortionate 
secondary markets; and stifle innovation more than promote it. In the 
case of weed, people fear that the plant will become locked down by 
the likes of Monsanto, big tobacco, and big pharma, who would all 
play rough in the patent sandbox. Those rumors were so persistent 
that Monsanto felt compelled on April 19 to tweet, "Tomorrow is 4/20. 
FYI: Monsanto has not & is not working on GMO marijuana." Big tobacco 
has said the same. So maybe there is time for you yet.

Note that patent applications are complex and technical documents. 
For instance, the first weed patent was 145 pages long, stuffed with 
charts, graphs, and dense science-y language that described a suite 
of hybrid strains with precise cannabinoid ratios. If you do pursue a 
patent for your weed strain, you should budget and be organized, and 
it will probably take a few years to process the application. Once 
awarded, you should prepare to protect the patent and have a plan to 
monetize it. Those are serious tasks.

Most industry watchers believe that once weed becomes federally 
legal, it will fully commoditize behind hefty national brands. Many 
small farmers hope to compete with those brands, because of the head 
start afforded them while Monsanto and others sit idly by. I am 
skeptical that a privately held producer could bootstrap patents and 
elbow its way to the top, although it is hard to predict what will 
happen in weed. I do expect there will always be a place for craft 
producers of high-end, artisanal goods, a la Stumptown, Moonstruck, or Rogue.

If you want to acquire a weed patent, look for someone who has worked 
in and around plants, who will give you a solid estimate, and who 
seems like a reasonable pro. Think carefully about what you are 
trying to achieve with the patent and how that asset will work with 
everything else you are doing. Finally, if you choose to proceed, 
good luck! You are a true pioneer.
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MAP posted-by: Jay Bergstrom