Introducing Into the Weeds: A Series Investigating the Intersection Between Patent Law, Open Data, & Cannabis
Cannabis has had a long, convoluted history in the United States. In the 1600s, growing hemp was encouraged, as it produced a valuable fiber that could be used for rope and other industrial textiles. By the late 1800s, pharmacies regularly sold cannabis tinctures, and papers advertised for products like “Hasheesh candies.” Following the Mexican Revolution in the early 1900s, the US saw an influx of Mexican immigrants who came to town with a different language, unfamiliar customs, and a “new” drug: Marihuana. The beginning of the modern American drug war ensued, largely targeting minorities and incarcerating millions over the decades that followed — 8.2 million between 2001 and 2010 alone. Most recently, there has been a push to legalize cannabis in the US, and while still federally illegal, over half its states allow some form of medical cannabis. With this continued regulatory back-and-forth, cannabis now finds itself in a wonky space somewhere between full legalization and Schedule 1 classification.
Amid this tangled web of state-vs-federal regulations, something else has started to happen: the United States Patent & Trademark Office (USPTO) has begun accepting patents on cannabis. This includes not only cannabis-related products, but plant varieties and their cultivation methods as well. Sometimes these patents are quite limited in scope — only applying to a single strain (or cultivar / variety) and its clones. Other times, these patents can claim an exclusive right not only to a particular variety, but also to plants with similar characteristics, products made with the plant, or new plants bred with the patented plant.
History has shown us time and again that these kinds of patents — combined with the deep pockets and corporate interests that fund them — can be devastating to small businesses. There’s Monsanto in the soybean and corn industries, Fontem Industries (British Imperial Tobacco) in e-cigs, and countless more. We don’t want this type of restriction to happen to cannabis, which is why OCP is fighting to prevent overreaching patents on the plant.
Our investigation into patenting cannabis comes with no shortage of questions. Some of them are philosophical or policy-related — should we be patenting plants at all? Is it hypocritical for the federal government to accept — and in some cases hold — patents on a substance they still (stupidly — let’s be real) consider to be a drug that holds no medical benefit? Other questions have to do with the patenting system itself. How does one go about obtaining a patent on the cannabis plant? What are the legal and regulatory underpinnings and definitions at play? Where do these overlap with scientific definitions, and where is there contradiction?
Even for the more pragmatic questions, the answer isn’t always clear — US law is filled with contradictions, and is always subject to interpretation. This is the reason why federal judge appointments are so important, and it’s also the reason why talking about patents isn’t easy.
In addition to supporting open data and preventing overreaching cannabis patents, it’s our mission to inform and engage the public on these issues. Whether you’re a home-grower, cannabis business owner, breeder, budtender, or just curious, you deserve to understand how this system works, and you play a crucial role in this conversation. In order to participate effectively, you need access to quality information, and people shouldn’t need a law degree to understand it.
Which is why OCP is excited to announce our new blog series, Into The Weeds, where we’ll dive into the nitty gritty details of patent law, open data, and the weird ways they intersect with the cannabis space.
Stay tuned for our next post, where we start from the beginning by examining how patents work. Later on, we’ll tackle other big questions — like, how can we work together to create data standards between labs and regulatory bodies in the cannabis industry?
Throughout the series, we encourage you to ask questions and engage in the discussion by leaving comments below the article and on Instagram. If you have an idea or question you’d like to see us cover, drop us a line:
info [at] opencannabisproject [dot] org
We’re excited to to work with industry leaders to produce the content in this series and to share what we learn with you. We look forward to your feedback, comments, and questions — all of which, we hope, can be better informed thanks to Into the Weeds.
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This collaborative blog post was written by Beth Schechter and edited by Jen Hudyma.
