Can Cannabis Strains Be Patented?

Emily Mullins

Posted by Emily Mullins on 04/02/2024 in Cannabis Laws

Can Cannabis Strains Be Patented?

Cannabis “strains” are distinct genetic varieties of the cannabis sativa plant that are bred for certain desirable characteristics such as aroma, terpene profile, potency, or flavor. Although it seems strange to patent a breathing, developing live organism, plants have been granted patents in the United States since the 1930s, with the very first plant patent being issued to Henry Bosenberg for a special breed of rose in 1931.

For breeders and cultivators, patenting a cannabis strain can provide advantages by granting exclusive rights to unique genetic compositions and desirable traits inherent in a particular plant. With patent protection, a breeder can benefit from compensation for their investment of time, resources, and expertise into developing novel cannabis varieties with enhanced properties. 

How are Strains Created?

Cannabis breeders combine traditional horticultural techniques with modern scientific knowledge of genetics.

Typically, a breeder will select parent plants, a male and a female plant, that exhibit desired traits, such as high potency, unique flavors, or specific medicinal properties. Then, these ideal parent plants are cross-pollinated to create diverse offspring with traits combined from both parents in a process called selective breeding. Pollen is extracted from a male plant and then gently deposited onto the flowers of the female plant, and seeds develop within six weeks.

Through successive generations of careful selection, breeders isolate and stabilize desired traits while eliminating undesirable ones over time. Ultimately, the aim is to develop plants that offer consumers unique, appealing characteristics. 

Patenting Plants

A plant patent is an intellectual property right granted to protect an inventor’s discovery or cultivation of a new variety of plants. The Plant Patent Act states that:

“Whoever invents or discovers and asexually reproduces any distinct and new variety of plant, including cultivated sports, mutants, hybrids, and newly found seedlings, other than a tuber propagated plant or a plant found in an uncultivated state, may obtain a patent therefor…”

Plants discovered in nature cannot be patented, because they occur spontaneously through biological processes and were not invented. Someone is said to have “invented” a plant and is eligible for a plant patent if the person created a novel and unique variety of a plant that they are able to reproduce asexually, such as by grafting.

Additionally, the plant eligible for a plant patent must have been altered by the inventor to the extent that the resulting organism is considered non-naturally occurring. Obtaining a plant patent ultimately ensures that an inventor, who invested labor and skill into producing a novel plant product, has protection from other growers cloning the plant or selling the plant and any of its parts.

Plants can also be designated as intellectual property with a utility patent, which provides more comprehensive protection. A plant patent is limited to protecting a single plant and its direct descendants, so the patent does not cover plants grown from the seeds of the patented mother plant, just clones of the mother plant and its parts.

On the other hand, a utility patent gives its owner the right to prevent any person in the US from making, using, selling, or importing the plant itself as well as its clones, tissues, or even individual cells, regardless of whether the plant is sexually or asexually produced. In order to obtain this type of patent, the cannabis plant must not be naturally occurring, and it must demonstrate usefulness and novelty, and its innovation must be non-obvious. 

Patenting a Cannabis Strain

Although it is federally illegal in the United States to possess, distribute, or cultivate cannabis plants (that do not meet the standards for classification as “hemp”), the US still grants patent protection for illegal substances just as they do for legal inventions. As long as an inventor can prove that their cannabis plant is novel, distinct, and non-natural, the plant is eligible for a US patent, and as of 2021, 12 patents for cannabis plant varieties have been issued.

Thus, under plant patents and utility patents, you can patent strains of cannabis. To apply for a patent, the inventor must prove that they discovered or created a strain that is not naturally occurring and is different from other existing plants by at least one distinguishing characteristic which is not caused by growing conditions (like fertilizers, etc.). Furthermore, the inventor must prove that the invention was not obvious to somebody with ordinary skills. These patents last around 20 years. 

A patent application for either a plant or utility patent to protect your cannabis strain must contain information such as:

  • What plants/breeds were crossed,
  • Description of plant phenotype, botanical features, and properties that distinguish the plant from other known plants,
  • If the plant was propagated asexually, technical details about the manner and placement of propagation,
  • Pictures of the plant, 
  • A certificate of analysis (depending on the state) or some other scientific description of how reported cannabinoid levels were ascertained. 

The Future of Cannabis Patents

While intellectual property rights offer incentives for innovation and investment in the development of novel cannabis plants, these legal protections also raise concerns about accessibility to medicinal cannabis and potential monopolization by corporate entities.

With substantial financial resources, extensive legal teams, and established market networks, large corporations possess a distinct advantage in navigating the complexities of the patenting process. Patents cost money, and small-scale growers can be effectively out-competed by enterprises in possession of more resources to conduct massive breeding operations and ultimately claim more numerous and more optimized strains for themselves.

Large corporations can leverage their resources to invest in sophisticated cultivation facilities to conduct extensive research and accelerate the creation of unique strains with desirable traits. Moreover, wealthier companies have greater access to distribution channels, which enables them to scale up production and reach a wider consumer base, thus profiting more from their creations than small-scale growers.

Despite the risk of monopolization in the industry, patenting cannabis plants is a relatively new phenomenon, and we are living through a future that holds promise for exciting discoveries, unforeseen opportunities, and novel experiences of the effects offered by the cannabis plant.

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