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Ethical Questions Posed by Cannabis Proprietary Protections

Protecting industry secrets sparks high competition and patent wars.

The legalization of cannabis (and hemp) has spiraled down many interesting rabbit holes, one of which is the evolving pursuit of plant patents and protections. A lot is riding on botanical invention within a global industry expected to reach nearly 100 billion USD by 2027 (15.26 billion hemp and 73.6 billion legal cannabis).

But cannabis is an industry built on the backs of clandestine breeding programs. Furthermore, many cultivators are still passionate about patient-controlled medicine. The growing drive for cannabis and hemp plant patents pose an ethical dilemma to the sector.

PLANT PATENTS PROTECT THE CORPORATE SIDE OF THE INDUSTRY 

Both the backyard breeder and the industrial-scale producer can easily breed new cannabis cultivars. The main difference is the investment, as the producer pumps much more into the program than the backyard breeder. A new strain, with exceptional disease resistance, an exciting cannabinoid profile, or other unique characteristics, can provide exponential returns. A commercial grower lays their money, name, and future on the line with these genetic inventions. Financially speaking, it makes sense to protect these new botanical strains against the competition, and have a chance to reap the financial returns.

This need to protect the financial investment is the driving force behind plant patents. At the most elemental level, a patent provides financial protections to the inventor (in this case, the breeder). Upon approval, a patent ensures that the inventor can hold exclusive rights to the invention for the life of the patent. Whether it’s a new technology, pharmaceutical, or a unique cultivar, the same principle holds.

Although other crops have long had the option of plant patent protection, this is a relatively new development for hemp (and still not on the table for cannabis). As patent lawyer Jeremy Kapteyn discussed with KUNR in 2019, “the race is on for cannabis producers to secure the rights to their inventions.” In his opinion, protections like these help legitimize an emerging industry, meaning patents will quickly transform cannabis from a back yard, black market crop into an all-out-corporate industry.

GROWING DRIVE FOR CANNABIS PATENTS IGNORES THE PAST

Even Kapteyn recognizes this move to proprietary protections will not play fair. He explained, “there’s going to be winners and losers. It’s not a merit-based system. It’s whoever’s first and has the most money.” Small craft producers, who have transitioned from the black market to the open market may have invested years into specialized cultivars, but all this could be taken away with an aggressive move by a more financed commercial operation.

It’s impossible to discuss the ethics of cannabis and hemp patents without discussing the plant’s recent and illicit history. Although cannabis is now legal in a growing number of countries and states, it wasn’t that long ago that it existed only in the black market. This illicit history forced cannabis breeding programs underground and pitted producers and consumers against the government.

Cannabis advocates have a long history of distrust for government, bureaucracy, and regulation – and rightly so. There is also a strong tradition of medical cannabis patients who turned to the plant as a rejection of Big Pharma and corporate control. Cannabis has long offered people personal control over their own lives, and they have fought hard to maintain this control.

With hemp and likely soon, THC-rich cannabis, getting swept under the control of large corporate entities through proprietary protections, this old guard of cannabis advocates remains staunchly opposed to corporate greed and botanical takeovers. From their standpoint, cannabis (and especially medical cannabis) is a plant for the people, not corporate profits.

LESSONS FROM THE MONSANTO EXAMPLE

Patent fear isn’t just a holdover from a black market of regulation. Cannabis cultivators have watched patent wars play out in other agricultural settings, like the now-famous examples from Monsanto.

Monsanto, an agrochemical and agricultural biotechnology, has long patented it’s biological and chemical innovations and followed up with fierce litigations against hundreds of farmers who often unknowingly break the rules. Under most Monsanto patents and licensee agreements, their genetically engineered seeds (for potato, wheat, rapeseed, soybeans, and more) may be planted and harvested, but the seeds of these plants may not be collected and planted again.

But despite Monsanto’s fierce control of their genetic property, nature still controls the winds and pollination patterns. In some cases, farmers have replanted seed collected or harvested seeds from windblown crops, cross-pollinated with Monsanto’s cultivars. Monsanto continues to take these farmers to court for stealing protected property. Monsanto, a company worth 60 billion USD, has one every single lawsuit it has pursued against these small-scale farmers.

Cannabis cultivators see the Monsanto precedent and worry about cannabis. With hundreds, if not thousands, of unique cannabis cultivars available, could these long-standing strains snapped up by commercial grow operations with deep pockets?

NO STRAIGHT ANSWER ON THE ETHICS OF PLANT PATENTS AND PROTECTIONS 

The nascent cannabis sector has long held itself apart from commercial conventions. This is especially true in comparison to the conventional agricultural industry. But as the cannabis and hemp sector grows, cannabis is going corporate. A bigger market and bigger payoffs mean the industry is leaning into more competitive business practices.

One aggressive move by a big commercial grow, could financially devastate long-time growers who have worked for generations to cultivate award-winning strains. Furthermore, plant patents may even threaten patient rights. Could patients eventually be excluded from growing their medicine depending on how cannabis and hemp plant patent scheme develops? For the older generation of cannabis entrepreneurs and advocates, the business of prosperity patents is a terrifying evolution.

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