Inside the Billion-Dollar Race to Patent Cannabis

December 10, 2019

“You can’t patent a plant, man.”

You may have heard that late one night while passing around a doobie—and it sure sounds right. After all, how could a capitalist enterprise be given legal domain over the DNA of a living being?

As anyone familiar with corporate agribusiness knows, however, it’s not only entirely possible to patent a plant, it’s commonplace. Patents are issued for GMO corn varieties resistant to specific pesticides. Patents cover Honeycrisp apples bred for extra sweetness. Once a plant is patented, nobody can legally grow anything that falls under that patent without acquiring the permission of the patent holder. And that typically requires a fee.

The U.S. Patent and Trademark Office (USPTO) has already issued several patents for specific kinds of cannabis (most recently one for a variety of high-CBD hemp), and for more wide-ranging “utility patents,”  but so far they’ve gone unenforced and even unnoticed.

That won’t continue much longer.

In patent law, every week is shark week

Patent protection lawsuits in the agribusiness field have produced some of the nastiest, most expensive litigation battles of the past 20 years. In 2013, a jury ordered DuPont to pay Monsanto $1 billion for infringing Monsanto’s patents for Roundup Ready seeds, which are resistant to the corporation’s weed killer. Monsanto has also famously sued hundreds of small farmers to protect their seed patents. Now biotech and Big Ag are moving in on the cannabis plant.

Today’s legal cannabis market is worth an estimated $11 billion. That could easily double within the next few years. Imagine holding a patent that required every grower of a popular strain to pay the patent holder a licensing fee.

Biotech startups and Big Ag corporations aren’t imagining—they’re planning. With federal legalization looming, some are already filing patent claims on cannabis strains. The bigger players are waiting in the wings, ready to purchase those patents and claim ownership of hugely valuable DNA.

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