It鈥檚 not every day you get a true Eureka! moment in science. But Andrew Alfred, chief scientist at the Denver-based cannabis company, , recently did. The company grows marijuana in a giant indoor 鈥渇arm鈥� for sale at their dispensaries in Colorado and Oregon.
Alfred said one day 鈥渨e had someone come into our office and say 鈥楬ey I got something that I haven鈥檛 seen before. You want to come take a look at this?鈥�
He said what they found was Eureka-worthy indeed. Alfred had been growing a cannabis plant through an asexual breeding process called 鈥渢issue culture.鈥� It鈥檚 sort of like cloning. But their cloned plant was now behaving differently from its mother plant. It was healthier and hardier and altogether new.
So they decided to hire a patent lawyer. They worked on their patent application for more than a year, taking meticulous measurements and notes and describing their new plant in detail before finally submitting it to the discretion of the US Patent and Trademark Office.
鈥淚t was graded and evaluated purely on the merits of how well I described a plant,鈥� said Alfred, 鈥渏ust as if it were a rose.鈥�
And yes, he does see the paradox here: a federal agency issuing patents for something that is still illegal under federal law. But he said the reviewers didn鈥檛 care about that. He got his .
It鈥檚 no secret the cannabis industry is becoming mainstream, and some companies, like LivWell, are racing to patent their products -- from new strains of marijuana plants to new methods of extracting of THC. But because this industry has lived in the shadows for so long, that race may not be a clear or fair one.
Historically it鈥檚 been relatively rare for a strain of cannabis to gain a plant patent. Alfred knew of only in existence before LivWell鈥檚. That may be because the plant patent is a newer category for the US Patent and Trademark Office. It was in 1930 for inventors who, according to the , 鈥渋nvented or discovered and asexually reproduced a distinct and new variety of plant.鈥� But other kinds of patents in the cannabis industry have been around for a while.
The USPTO started handing out patents for decades ago. This was even before the period when a growing number of states started passing medical marijuana laws. But the number of awarded cannabis patents has picked up remarkably since Colorado and Washington legalized the plant for .
鈥淪o I think the race is on,鈥� said , a patent attorney focusing on marijuana law. He鈥檚 happy about the shift. He says it鈥檚 one way if normalizing this emerging industry.
But 鈥渢here's going to be winners and losers,鈥� he said. 鈥淚t's not a merit-based system. It's whoever's first and has the most money.鈥�
In other words, capitalism in action.
Beth Schechter is disappointed. She helped created an archive of marijuana plants for the non profit, .
鈥淚 think we did have the sense that the cannabis industry is not gonna be like other industries,鈥� Schechter said. 鈥淎nd we鈥檙e all having a really big wake-up call that that鈥檚 not the case. The cannabis industry is becoming very corporate very quickly.鈥�
By documenting existing cannabis plants she tried to prevent patents that would step on the toes of what others had already been doing.
Schecter said some are more threatening than others. She鈥檚 not quite as worried about narrow 鈥榩lant patents鈥� like the one Andrew Alfred got for LivWell. Those are limited to the unique strain of plant and any of its direct offspring.
She鈥檚 more concerned about utility patents 鈥� a patent type that鈥檚 wider in scope. It can cover a process, a piece of equipment, or even a plant鈥檚 DNA.
Still Schechter does see a way for companies to patent ethically. And that鈥檚 to make them appropriately narrow.
鈥淒on鈥檛 try and get a patent that鈥檚 so broad that now nobody else can breed something with THCv in it,鈥� she said. 鈥淒on鈥檛 do that.鈥�
Jim Parco has a different beef with cannabis patents. He owns a mid-sized cannabis extraction company in Pueblo, Colorado called . He said someone could easily run to the patent office with a process or product that he鈥檚 been using for years.
鈥淒oes that preclude us from using it? I don't know,鈥� Parco said. 鈥淏ut it's the five magic words: tell it to the judge.鈥�
He also has no idea if anything he鈥檚 currently doing is patentable.
鈥淎m I unique?鈥� he asked. 鈥淚 was. I was one of the first ones to do all of this. Am I still unique? Probably not.鈥�
So in a sense, he may have already lost out. On the other hand, he said patenting just isn鈥檛 his M.O. He said the industry started out with an open source collaborative ethic and he鈥檇 rather keep it that way.
Plus, he said, in the world of marijuana, you get used to high risk.
鈥淚f the DEA wanted to drive into my yard, take a battering ram and bust down our doors, arrest all of our employees, and confiscate all of this equipment, there鈥檚 not a damn thing I can do,鈥� said Parco.
So does he lose sleep worrying about patents? No. He just can鈥檛 be bothered.
This story was produced by the Mountain West News Bureau, a collaboration between Wyoming Public Media, Boise State Public Radio in Idaho, KUNR in Nevada, KUER in Salt Lake City, and KRCC and 萝莉少女 in Colorado.
Note: Jim Parco is also a professor at , KRCC's licensee.
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