What is the importance of intellectual property in the protection of new varieties of cannabis intended for medicinal or industrial use?
If I may, I would like to start with a bit of pedagogy and explain some basic principles for the uninitiated: Intellectual property, as a broad concept, in the case of plants is not very different from what we know of a literary work, or a patent, a musical work or other invention, which always have an authorship. It refers to the legal and moral rights that new crop developments have. A plant variety is considered new when you can demonstrate that it is distinguishable from others, is stable and is unique.
People who develop new varieties with desirable characteristics for the market, by crossing parents or using more advanced techniques, are known as breeders, and are a key part of the variety creation process. We could compare them to a writer or an inventor. Without breeders, there would be no new developments and agriculture would be static and without plants that are increasingly interesting for their intended purpose.
The existence of intellectual property allows breeders to control the use and distribution of these plant varieties, and allows growers to benefit from the improvements explained above, for example, by obtaining better yields, controlling resistance to pests or growing plants with product characteristics (a specific terpene, a cannabinoid….) that are desired or preferred by the users of these varieties.
Creating a new variety takes a lot of time and resources. Among many other things you have to make crosses, observe the offspring, select individuals, verify their stability, discard those individuals that have inherited undesirable traits… and all this is a very costly and long process. Preserving intellectual property is crucial to protect new varieties of Cannabis sativa L., as it ensures that developers can recoup their investments through licenses for exploitation in its many forms. Varietal protection and plant breeders’ rights allow developers to have exclusive control over their varieties, providing incentives for research and development of new varieties.
How can the protection of cannabis varieties through intellectual property be balanced with global access to genetics and traditional knowledge?
As with other plant species, there is a lot of traditional-use cannabis plant material that is completely free and has never been registered. In fact, most of the commercial materials available today do not have any intellectual property ownership and could be freely multiplied because they simply do not have an owner, or rather, they do have an owner, but no one has claimed authorship.
Unlike many plant species of economic interest, such as fruit trees or other horticultural species, there is no great tradition in the protection of the cannabis plant for obvious reasons: breeders and growers were clandestine when working with a prohibited plant that also produces a controlled substance. Its legal cultivation was not allowed due to international regulatory restrictions, and therefore, until very recently, no variety protection activities have emerged, except in hemp.
Biodiversity is the breeder’s tool, therefore, the existence of free varieties and exchanges of genetics between breeders will continue to drive innovation, whether or not the results are protected, so I believe that free, novel or traditional varieties and protected varieties will continue to coexist. The incentive to improve a plant will always increase if the breeder obtains a fair return for his efforts through commercialization mechanisms for licensing the use of novel genetics.
What legal challenges do cannabis strains face in terms of intellectual protection compared to other types of crops?
Cannabis plant breeders cannot be perceived as potential criminals, and it is unfair that they have to operate under restrictive regulations to the maximum. I would mainly point out the difficulty of obtaining administrative authorizations for cultivation, also to generate new varieties, and that these allow the development of R+D+i activities that require the use of infrastructures with very high security requirements, the use of specialized laboratories, or molecular tools that are not within the reach of all companies.
The transfer of materials to make crosses with strict phytosanitary standards, in addition to the administrative ones, between different jurisdictions, is inevitable, but I think it is a lesser evil. I believe that collaboration and interaction between the traditional knowledge of classical growers with centers of scientific excellence in plant breeding, which are usually publicly owned, should be the standard practice to develop better varieties in the future, and that is a difficult task today with the restrictive legislation on cannabis cultivation in many countries, which plays against the generation of quality intellectual property.
Eliecer López Jiménez
Agronomist Engineer
Development Director
GreenBe Pharma
