Ryan Alexander-Tanner

I CULTIVATED an innovative new strain of weed. Can I patent it?

Yes, you probably can.

The first weed strain patent was issued last August to a group of California breeders. This raised some eyebrows, and the US Patent and Trademark Office (USPTO) has since confirmed that it is processing both plant and utility patent applications for individual varieties of cannabis (and also poppy). To acquire a plant patent, your weed strain must simply have a distinct characteristic. To acquire a utility patent, however, it must be new and non-obvious as compared to existing strains. It also must exhibit different characteristics from weed in its natural state. Aside from that, one USPTO spokesperson recently assured a Vice magazine journalist that "there are no special statutory requirements of restrictions applied to marijuana plants." So, there you have it.

People tend to have strong feelings about patents, and about cannabis patents in particular. Specifically, they argue that patents hurt competition and inflate prices; create monopolies and extortionate secondary markets; and stifle innovation more than promote it. In the case of weed, people fear that the plant will become locked down by the likes of Monsanto, big tobacco, and big pharma, who would all play rough in the patent sandbox. Those rumors were so persistent that Monsanto felt compelled on April 19 to tweet, "Tomorrow is 4/20. FYI: Monsanto has not & is not working on GMO marijuana." Big tobacco has said the same. So maybe there is time for you yet.

Note that patent applications are complex and technical documents. For instance, the first weed patent was 145 pages long, stuffed with charts, graphs, and dense science-y language that described a suite of hybrid strains with precise cannabinoid ratios. If you do pursue a patent for your weed strain, you should budget and be organized, and it will probably take a few years to process the application. Once awarded, you should prepare to protect the patent and have a plan to monetize it. Those are serious tasks.

Most industry watchers believe that once weed becomes federally legal, it will fully commoditize behind hefty national brands. Many small farmers hope to compete with those brands, because of the head start afforded them while Monsanto and others sit idly by. I am skeptical that a privately held producer could bootstrap patents and elbow its way to the top, although it is hard to predict what will happen in weed. I do expect there will always be a place for craft producers of high-end, artisanal goods, à la Stumptown, Moonstruck, or Rogue.

If you want to acquire a weed patent, look for someone who has worked in and around plants, who will give you a solid estimate, and who seems like a reasonable pro. Think carefully about what you are trying to achieve with the patent and how that asset will work with everything else you are doing. Finally, if you choose to proceed, good luck! You are a true pioneer.