“It costs a lot to defend patent infringement — you could get into the millions pretty quickly,” Craig Nard, a law professor at Case Western Reserve University who has written about cannabis and patent law, explains.
He believes there is a legitimate fear in the burgeoning weed industry that large agricultural companies like Monsanto will aggressively enter the space in the near future. He says there’s no reason to believe it won’t happen.
But you can’t just grow a funky looking sativa, slap a copyright sticker on it, and call it a day.
“So what if I’m a smaller player, a grower who just wants to grow and sell locally, and I don’t have huge commercial ambitions?” he says. “All of a sudden, I get a cease and desist letter from a Dupont or Monsanto, what do I do with that?”
Behemoth companies can pay for fleets of lawyers or otherwise bury challengers. Patents and copyrights provide a way for smaller businesses to protect their products. But you can’t just grow a funky looking sativa, slap a copyright sticker on it, and call it a day.
Enter Medicinal Genomics, one company offering a way for cannabis growers to protect themselves in anticipation of future patent litigation. The company offers cannabis genetic sequencing and “point-of-grow” testing technology for weed cultivators, meaning it can give you a breakdown of the genetic makeup of your plant, along with other information.
Once Medicinal Genomics has sequences a strain, it puts the information in a file, attaches a timestamp to it, and puts it on the blockchain — essentially an “online ledger” that allows data to be verified. Doing so provides more concrete evidence of what a product actually is than, say, a photo or post on a website.
“Not everyone is really competent in the names of these clones being handed around or the seeds being handed around,” says Kevin McKernan, the founder of Medicinal Genomics and a former researcher on the Human Genome Project.
DNA sequencing of a plant’s genomes “can be used for defensive intellectual property purposes, where you can get a sequence of a plant,” he continues. “We end up registering the time at which that sequence existed by hashing it into a blockchain like bitcoin.”
If the Monsanto of weed sends you a cease and desist order, you’d have some ammunition to shoot back with.
This is important because, according to McKernan, there is a steady stream of patents in the pipeline, but they’re coming from a limited number of people. McKernan believes others will try to claim strains that have existed for a while because the U.S. doesn’t have a good database of legally confirmed, existing cannabis strains.
The blockchain could provide the framework for such a database. It’s a useful technology in this respect because an individual can’t change it. Once a sequence file of the plant’s genetic makeup is registered with the blockchain, it would take a consensus of blockchain users throughout the world to alter it. The technology is often referred to as an immutable ledger, which basically means a record that cannot be changed.
“It’s a cheap way to get something notarized, and then at least your stuff is public,” McKernan says. “If something comes up later, you can demonstrate that, ‘Hey, I’ve got first-use exemption because I had this timestamp showing that I had this strain on April 20th, and therefore it predates your patent.’”
While a company could attempt to torpedo your new strain before you’re able to file a patent, the blockchain would at least give you timestamped evidence saying exactly what your plant is, and it would be linked to a genetic profile. If the Monsanto of weed sends you a cease and desist order, you’d have some ammunition to shoot back with. And rather than the thousands of dollars patent litigation could cost, Medicinal Genomics wants to do this all for $600.
Kevin Fortin, a patent attorney at Hoban Law Group who has extensive experience with both blockchain and cannabis, says the approach could help someone make a case, although it can’t grant the legal protection of an official patent.
“Having an indelible ledger such as blockchain can demonstrate prior use of a particular genetic sequence of marijuana, for example,” says Fortin. “From a defensive standpoint, that means what you’re essentially doing is showing the genetic composition of a particular strain and publishing it… though it doesn’t provide the exclusive rights a patent would.”