Who owns that marijuana plant you've been tending on the hill? You might think it's the property of the landowner, the one paying you to garden for her. Maybe you think it belongs to that cancer patient you've been caretaking? Perhaps you think it's yours? Increasingly — however — it's possible that plant is the intellectual property of some far off company that secured a patent on its genetic makeup.
It sounds crazy, especially here in Humboldt County where cannabis has been grown for generations and mom and pop growers have spent years developing unique strains, but there's a patent war brewing and the future of the cannabis industry — and its projected $40 billion in annual revenue — is at stake.
It's no secret that investors have been increasingly lining up at the industry's door. Recent reports have Silicon Valley venture firm Benchmark Capital putting $8 million into Oakland startup Hound Labs, which is busily trying to create a cannabis intoxication testing device for law enforcement. Tech mogul Peter Thiel, the man who sunk Gawker and co-founded PayPal, has an investment group, Founders Fund, that has reportedly put millions into Privateer Holdings, the firm that launched Marley Natural, the pot brand named after the reggae legend. Then there's Arcview, an Oakland-based cannabis investment group that has raised more than $130 million in recent years, according to a report in STAT. Those are just a few, but the list goes on and on and on.
But the fight to cash in on cannabis seems to be entering a new arena: the lucrative world of creative property rights and patents. In many ways, it makes sense, as genetics have long dominated the marijuana industry, with "it" strains periodically dominating the lion's share of the market, from Mendo Purp to OG Kush to Trainwreck to Girl Scout Cookies. And patents certainly control current agricultural markets, allowing industry behemoth Monsanto to sue farmers for planting its particular variety of corn without buying the seeds from a licensed vendor.
Last year, the U.S. Patent and Trade Office issued Patent No. 0905554, its first-ever patent for a plant containing significant amounts of THC, the primary psychoactive ingredient in marijuana, to a group of three breeders that included Michael Backes, author of Cannabis Pharmacy. At the time, Backes told Vice that his lawyers expected there to be a ton of patents already on file for cannabis genetics but were shocked to find none.
According to a fabulously interesting — and somewhat terrifying — article on the cover of this week's GQ magazine, Backes recently worked at BioTech Institute, a mysterious, deep-pocketed company that industry insiders believe is working feverishly to register a host of utility patents — the strongest intellectual-property protection available for field crops in the United States, which essentially treats them like books, songs or other works of art — for cannabis. If granted, some fear the patents would allow BioTech to claim rights to large swaths of cannabis genetics, allowing them to charge licensing fees from growers, manufacturers and retailers that deal with certain strains. (Monsanto has used such patents to prevent farmers from planting the seeds harvested from their crops, forcing them to instead buy more Monsanto seeds every year.)
But the GQ article notes that marijuana "outlaws" are pushing back. The reporter, Amanda Chicago Lewis, recounts a recent breakfast she had with Kevin Jodrey, a prominent figure in the local weed industry who started Garberville's Wonderland Nursery. Jodrey told Lewis that he's been encouraging farmers to get their strains genetically sequenced by a Portland scientist by the name of Mowgli Holmes, who has created a system allowing growers to register their strain genetics into the public domain, leaving them open to use by anyone. But farmers are suspicious, Jodrey notes, fearing Holmes intends to steal the genetics for himself.
As local growers and manufacturers continue to jump through hoops on the road to compliance with the hopes of one day seeing their product selling legally in recreational markets, the nation's wealthiest investors are following the Monsanto model. Consider this, of the roughly 2.36 billion bushels of corn harvested in the United States annually, about 80 percent of it is genetically patented by Monsanto.
So, who owns that cannabis garden on the hill that you've been busy watering and prepping for harvest? Maybe it's you, maybe it's your patient, maybe it's your boss. But if any of those folks want to continue to own it in a few years, unimpeded by patent lawsuits, they should start looking past licenses and permits into the very genetic makeup of the plants. That, it appears, will be where fortunes are won and lost.
Thadeus Greenson is the Journal's news editor. Reach him at 442-1400, extension 321, or email@example.com. Follow him on Twitter @thadeusgreenson.