Preserving High‑Yield Cannabis Strains in Canada is an Evolving Concern and Priority

Environmentally conscious investors, venture capitalists, and entrepreneurs are leaving no stone unturned in cashing in on the market for green cannabis. Towards this end, market players who fund, develop, cultivate and market the weed, and its numerous variants or derivatives should familiarize themselves with the nitty‑gritty of IPS (intellectual property rights) related with such produce. At the same time, they should be aware of the pitfalls associated with transgressing on the rights of other stakeholders involved in the cannabis industry, starting from the plantation stage to the processing stage.

Germane and related to the safeguarding all marijuana products and derivatives linked to marijuana as well as the different production techniques are the rights and responsibilities of plant breeders, trade secrets, and patents. When it comes to brand positioning and other associated issues about cannabis items, these might be safeguarded via alternative forms of intellectual property rights including trademarks. However, discussing these aspects of intellectual property rights is beyond the scope of this article, and therefore the same has not been dwelled upon or delved into.

PBRs or Plant Breeders Rights

With regards to the above information, preserving high yield cannabis strains in Canada has become a matter of concern that is causing quite a lot of anxiety amongst planters, and cultivators of marijuana. Towards this end, the Canadian government is taking all the necessary steps to help cannabis breeders in every way possible to protect the plant strains. The only and the most efficient manner in which uniqueness of a strain of cannabis plant can be safeguarded in Canada is by applying for getting hold of the PBR grant concerning a plant strain or variety under the aegis of the PBRA (Plant Breeders Rights Act). In Canada, the Plant Breeders’ Rights Act gives you exclusive rights to new types of some plant species.

To receive a PBR, the applicant breeder has to provide proof circumstantially that the strain or variety of the cannabis is a novelty. At the same time, the candidate also has to demonstrate that the strain he has developed is perfectly discernible from other existing varieties, has its distinct set of attributes, and can repeatedly be cultivated to produce the same yield regarding characteristics. Generally speaking, a strain is labeled as new, if the variable being harvested has never been propagated previously for a commercial purpose or in other words selling the product on a large scale.

However, there is a rider attached to the selling clause‑the strain for which the breeder has forwarded an application as a new variety must not have been sold beforehand or in the past for a specific period. Nevertheless, the duration of the timeframe for which the newly developed type must not have been sold is determined not only by its quality but also on whether the trading takes place within Canada or internationally. In any case, all or any transaction should not have happened, nothing less than 12 months before the application for a plant breeder right protection.

As far as PBRs of Canadian cultivators are concerned, it only safeguards the particular strain for which the same has been awarded. Since the day the PBR came into effect, just a few strains of marijuana have been registered for a plant breeder right, while a few more are in the pipeline awaiting registration. Some of the varieties for which PBRs have already been granted as well as are pending, happen to be industrial hemp strains.

Industrial hemp or simply hemp is a variant of cannabis sativa that is cultivated exclusively for its fiber which is subsequently processed for producing a nearly endless range of commercial products including paper, biofuel, animal feed, clothing, textiles, biodegradable plastics, and food. The Canadian Food Inspection Agency, a few years back (2014 to be precise), awarded Breeders right to a cultivator named Chris Griffin based in Toronto, Ontario, for a particular strain of Cannabis Sativa, indexed as Big C. A cannabis grower in Canada who has secured Breeders right (for a specific variety of marijuana) owns the right to cultivate the type of commercial exploitation for at least 20‑25 years.

That implies no other cultivator or grower can produce, sell, export, import, stock or use the variety in any way (for commercial gain) for which PBR has been granted. The Plant Variety Protection Act and the federal Plant Patent Act in the USA bestow similar rights to farmers and agriculturists concerning sexually and asexually reproduced plant strains respectively. So, it follows that anybody infringing upon or breaching a PBR is liable to be hauled up in a court of law and face prosecution.

Nevertheless, exemption from infringement may be granted under specific circumstances. For instance, if an individual propagates the variety with a non‑commercial intent, like using it personally for medicinal purpose or for developing a new strain, will not be seen as violating the PBR stipulations. Additionally, a cultivator or planter who procures or purchases a protected strain legally for stocking seeds to produce the same for private use or consumption is not liable to face legal action on the premise of violating the PBR. This right of a Canadian farmer is known as farmers privilege, and the concession allows him to reproduce the protected strain on a continual basis.

Patents

A cannabis grower in Canada can apply for obtaining a patent provided the strain or variety is novel, serves a particular purpose, commercial or otherwise, and is inventive. Once the applicant or the cultivator is awarded a patent, he or she holds the exclusive rights over the variety. In other words, the array can be propagated, sold, arranged for sale by a third‑party, exported and imported solely by the patent holder. The patent is valid for 20 years at a stretch, in Canada, starting from the date the application was filed. A patent is very much similar to a PBR in that the former debars others from marketing the strain or licensing it to third parties for reaping commercial benefits. To be entitled to a Canadian patent, the description about the variety in the patent application form should conform to the standard delineation of the invention as outlined in the Patent Act.

To be precise, the cannabis cultivar in question must meet the criteria to be designated as an advancement of the existing variety, unique manufacturing process, and so on. The patent is granted to safeguard the invention imbued with a marihuana derivative or offshoot and also a specific method or technique about cannabinoids extraction as well as concentrate/edible production. Interestingly enough, the plant, whatever the strain or cultivar cannot be patented as such in Canada.

Nobody in Canada can apply for the patenting of a plant or any other life form belonging to the organic food chain as the Canadian Food Inspection Agency has kept out such life forms from the ambit of patentability. This convention is in sharp contrast to the norm in the US where it is perfectly valid to grant patents with regards to higher forms of life which also incorporates numerous cultivars of marijuana. Surprisingly enough, though possession of or trading in a pot is not legal in many states of US, one can always apply for a patent for cultivating a plant variety, producing an associate product or for inventing a particular technique/method of production or extraction.

Not very long ago, USPTO (the United States Patent and Trademark Office) awarded a patent for a crossbreed of the plant as the same exhibited attributes that were discernible and distinct from the characteristics of all known cannabis cultivars. Since patenting of new strains is legal in the US, there is always the possibility of issuance of patents for varieties which are already available‑though not in the open markets‑which would nullify their new variety tag, and consequently, render the protective patent invalid and unviable. The embargo on the US on cannabis makes it virtually impossible for the USPTO to screen all existing strains when it reviews a purported novel cultivar for deeming it new per se.

On the other hand, an individual in Canada is not permitted to seek the patent for any form of higher life which also includes plant life. However, one can always apply to a unicellular organism or life form that has not been cultivated naturally. These non‑natural life forms or bodies comprise cell cultures, cell lines, and genetically tweaked isolated genes and cells.

But cannabis cell lines, isolated cells, and genes obtained using conventional breeding methods like crossbreeding or hybridization are disqualified from being patentable. Moreover, when somebody secures a patent for a genetically modified (GM) cannabis cell line or a transgenic gene created using a genetic engineering technique, he or she might be unwittingly or automatically protecting the variety. That is so since trading in seeds or other plant parts or products derived from the copyrighted gene would be tantamount to violating the patent rights.

Furthermore, receiving a patent for the varieties mentioned above of cannabis would also accord a nearly impregnable ring of protection around the strain as exemptions relating to farmers privilege or breeders immunity will not be applicable.

Trade Secrets

In case a newly created cultivar of cannabis, processing technique, related derivative or production process is kept under wraps, the same becomes liable for protecting as a commercial secret. Data on the cannabis processing technique or a new cultivar regardless of whether the subject‑matter is technologically or commercially significant is of value mainly owing to its confidentiality. As far as legally securing the trade secret is concerned, there is no statutory requirement to get the same registered.

It is not at all necessary for a proprietor of the trade secret to opt for some written or even a viva‑voce contract to ensure its clandestineness. The trades current owner has to be very particular if he or she is sincere about not spilling the beans with regards to seeds, leaves, flowers or other reproducing and broadcasting materials. If the strains genetic structure or the production method is replicated through reverse genetics, then the secrecy cloak is automatically lost for good.

Another drawback about not protecting the trade secret with a patent in some form is that if and when someone somehow gets his hands on the strains legally propagating material, he will have no restrictions on replanting the same. The sincerity of an individual to safeguard the information relating to the trade secret is directly proportional to a court of laws seriousness to regard the data as classified. The trade secret will not remain a secret anymore once the relevant info is accessed or obtained via legal means or if the same is divulged by an individual who has knowledge about the data and is authorized to reveal it.

Owner of the trade secret may give his consent for disseminating the information explicitly and exclusively for the purpose it was intended to be circulated in the first place.

Best Practices

Any individual or institution that comes up with a new strain of cannabis or a product which includes a derivative of the weed should evaluate quite early on whether applying for a PBR or a patent would be apt for the discovery. At the same, the person or business should take into account if producing and sell the new or innovative product/service in a specific jurisdiction or jurisdiction would not infringe on the intellectual property rights of others.

By |2019-06-06T03:29:41+00:00January 10th, 2018|Trademark|0 Comments

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Anita Mar
CEO and Registered Trademark Agent at Trademark Angel Inc.

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