Pot growers cultivating in the shadows seek U.S. patent protection
Sunday, 28 December 2014
Ben Holmes gently lowers the turntable needle onto the album, and Traffic's "Medicated Goo," begins to play.
Steve Winwood's wistful tenor sweeps through the Centennial Seeds laboratory: "My own homegrown recipe'll see you through."
"Everyone stole from Stevie Winwood," Holmes says, his foot tapping as he injects a syringe of dark, syrupy liquid into his gas chromatograph.
No one is stealing from Holmes, a self-taught scientist, engineer, farmer and cannabis seed geek who next month will take a rare step to apply for a patent on a laboriously created cannabis superstrain.
If it is awarded, the U.S. patent on Holmes' medical-grade Otto II strain will be the first to protect a cannabis plant and a first step in establishing plant-breeder rights for growers who only a few years ago were considered criminals.
"This industry came up in stealth, born in basements and crawl spaces," Holmes said. "But now, with companies forming and making larger investments, the desire to protect intellectual property is becoming paramount. Bleeding-edge stuff, right here."
Indeed. Gone are the days when pie-eyed longhairs haphazardly hurled pollen into jungles of pot plants, hoping to meld two strains.
Today's top breeders are geneticists, taking years to weed through carefully engineered generations of cannabis to elevate the most desired traits.
Some of these new superstrains are high in cannabidiol, or CBD, one of several dozen cannabinoid chemical compounds in cannabis and the plant's major non-psychoactive ingredient. CBD has been credited with relieving some epileptic seizures, prompting widespread calls for additional research.
Other more utilitarian superstrains are resistant to mites or the crop-killing powder mildew that plagues grow operations across Colorado.
Some superstrains are simply super stony, with sky-high levels of tetrahydrocannabinol, or THC, the psychoactive compound in cannabis.
The gas chromatograph is Holmes' key tool in shaping Otto II, a high-CBD, low-THC strain he hopes can fuel medical therapies. The 50-year-old gizmo separates molecules and converts them into an electrical impulse. A green line tracking across a screen reveals the level of THC in the substance. That line will be the baseline for a measurement of Otto II.
Holmes produces a well-worn legal tablet laden with acronyms and millivolt values from the gas chromatograph. Those figures reveal his painstaking progress toward breeding the THC out of, and the CBD into, his treasured varietal.
It is, in many ways, the result of a lifelong career dedicated to breeding, growing, cloning, engineering and charting the most useful cannabis plants.
As Winwood sings the oft-covered "Dear Mr. Fantasy," Holmes shares his plans to protect Otto II, which ranks among the most valuable of his collection of 400 varieties of cannabis and hemp seeds, most of which are stored in an industrial freezer in his Lafayette lab. In addition to the patent, he hopes to be the first cannabis breeder to secure protection under the Plant Variety Protection Act, the seminal plant breeders' rights legislation from 1970.
"The value of that seed, long-term, could be very, very valuable — an annuity," said Holmes, a father of two who serves on the state's Industrial Hemp Advisory Committee and is collaborating on the University of Colorado's groundbreaking Cannabis Genomic Research Initiative.
"Everyone who does this wants to produce something with durability," he said. "A seed with good utility that produces well can have longevity for generations."
Holmes is a sort of modern-day Luther Burbank, the pioneering American botanist and horticulturist who developed more than 800 varieties and strains of plants in the late 1800s and early 1900s. Burbank faced intellectual property challenges in his career, as he created still-heralded peaches, plums, daisies and the world-dominant Burbank russet potato.
Holmes follows Burbank's lead, offering a few types of seeds to a single, large distributor who can flood the market in the first year, before anyone can take it as their own by cloning the young seedlings.
By the time the copycats have cloned Holmes' strains, he already has made his money. He also licenses the use of his heirloom seeds, but not the extra-special seeds he doesn't want copied.
"Really the focus, minus any patent protection, is on licensing and careful selection of distributors," Holmes said.
State trademark protection can safeguard the name of an innovation within a state's borders. But protecting intellectual property through state laws is a bandage.
Patents are exclusively federal. Marijuana is illegal under federal law. And federal law trumps state law.
The U.S. Patent and Trademark Office has rejected cannabis-related patents consistently, arguing that the invention is "immoral and scandalous" because marijuana is illegal or that the invention has no useful purpose because its use violates federal drug law.
And there is little indication the federal government is ready to begin awarding patents for marijuana strains, even though the government granted 17,591 plant patents between 1989 and 2013.
But then the federal government appears reticent to do anything regarding marijuana, despite voters in 23 states approving some form of decriminalization or medicinal use and an 11 more this year approving CBD oils for seizure treatment.
"They are still trying to pretend that this industry does not exist," said Taylor West, deputy director of the National Cannabis Industry Association. "These patent questions and this whole intellectual property issue, this is one of those areas that is so new and still falls in that stagnant area between state and federal law."
West said the feds recently seem to be accepting the medical value of CBD while continuing to abhor THC-dominant strains. While 11 unlikely states — Alabama, Kentucky, Utah and Mississippi among them — legalized the use of CBD-rich extracts and oils for seizure treatment, West said a focus on just CBD is myopic.
"When you start to look at the medical possibilities of cannabis, you have to look at research that shows an entourage effect, which means essentially that the whole of the compounds is greater than the sum of its parts," West said.
The other cannabinoids
Nolan Kane agrees.
Kane, an assistant professor in the University of Colorado's department of ecology who is leading the Cannabis Genomic Research Initiative, rattles off acronyms like CBN, CBA, CBG, THCA, THCB and other cannabinoids for which potential therapeutic values are unknown.
Like any good professor, Kane says more research is needed. And it starts with things like mapping DNA sequences of marijuana and hemp and identifying the genomes that deliver certain characteristics to particular strains.
The $1 trillion farm bill passed this year allowed universities in states that permit hemp cultivation, including Colorado, to research the plant without threatening the flow of federal funding.
The work is creating a genomic blueprint similar to those that have enabled tinkering botanists to create — and protect — thousands of varieties of major crops such as wheat, corn, soy and rice.
With that genetic map, breeders can speed production of cannabis strains that yield favored characteristics, Kane said. The research may highlight many new agents that could play a role in evolving medical treatments or, like hemp, illuminate industrial uses for things like biomass energy or hempcrete.
"The high-CBD materials have a lot of advantages in the legal environment combined with a lot of exciting potential for medical applications," he said. "But the story is not just CBD. We hope we can come up with varieties that are high in other different compounds."
Kane is focused on the agricultural side of cannabis, so it will be up to other researchers to discover any potential therapeutic or industrial applications for varieties he maps.
Those researchers likely will come from companies seeking to capitalize on the new strains — such as GW Pharmaceuticals and Denver's United Cannabis Corp.
United Kingdom-based GW last year secured a U.S. patent for the use of a CBD-THC blend to treat brain tumors.
Publicly traded United Cannabis in October filed for draft patents on ratios of cannabinoids — say a concoction that is 90 percent CBD and 10 percent THC — to treat cancer and nervous- and immune-system disorders. The patents would give the company 12 months to prove its combinations of cannabinoids deliver a medical benefit.
"We have to go out and do our robust safety trials and our rodent trials and really come out with the science behind the concept we have," United Cannabis' chief operating officer, Chad Ruby, said.
United Cannabis licenses its trademarks but is pushing for broader patent protection.
"We don't want to waste a bunch of time and a bunch of money and a bunch of effort only to have someone take all our work," he said. "Everyone in this industry is sitting and waiting on the federal level to see what they will allow."
Despite the waiting, there is a sense of urgency.
If the federal government ever drops its prohibition, or begins granting patents, industry watchers expect cannabis to be suddenly interesting to such mega-corporations as Monsanto, Philip Morris' parent Altria Group, Pfizer, Walgreens and Anheuser-Busch InBev. (The Internet throbs with conjecture that Monsanto has long schemed a genetically modified marijuana. It's important to note, breeders say, that engineering marijuana strains through selective breeding is not the same as genetically modifying the plant's DNA.)
Even without the corporate players, the cannabis business is booming. The National Marijuana Business Conference in Las Vegas last month saw 3,000 attendees, up from 600 last year.
The patent game
And the business problems are growing too, as companies begin to invest heavily in innovative products.
Rohan Marley, son of reggae musician Bob Marley, announced last month he would begin distributing Jamaican cannabis strains and hemp-infused products under what the Marley family describes as the world's first global cannabis brand, Marley Natural.
But Steven Fagen, a Montserrat tobacco exporter, registered four Marley trademarks — the words "Natural Marley Spirit Marijuana" with a lion and cannabis leaf, as well as Natural Marley Spirit Cigarettes — in Colorado last month.
His trademark filings illustrate the need for protection. Fagen has no connection with Marley Natural.
Fagen "is blatantly trading upon the Marley name, and steps are being taken to stop their infringement," said Zach Hutson, with Seattle-based Privateer Holdings, the equity firm that has partnered with the Marley family in the Marley-branded marijuana.
Fagen did not return messages asking for comment.
The firm is filing for trademark protection with the U.S. Patent and Trademark Office and in other countries.
(The Colorado secretary of state's website lists more than 130 companies registering trademarks including the words "cannabis," "marijuana" and "hemp.")
Ean Seeb fields a regular stream of calls from attorneys seeking to help his Denver Relief dispensary — the city's oldest — protect its intellectual property.
His team is deep into a multiyear effort to create a high-CBD strain and strain of potent marijuana that resists powder mildew, but Seeb remains wary of investing in intellectual property protection.
There are too many uncertainties, said Seeb, who serves as chairman of the 800-member National Cannabis Industry Association.
Will someone be able to patent timeless strains like Durban Poison, Bubba Kush or Skunk #1? If they do, how will that patent-owner collect from growers and sellers of that ubiquitous strain? How will the patents be awarded and enforced?
"This whole patent game is going to be very interesting," Seeb said. "This started as a hippy industry, but it certainly is getting more corporate. We are certainly getting away from the free-love mentality. Patents is a pure money play, right?"
Jason Blevins: 303-954-1374