Hemp Industry Magazine Fall 2019

9 HEMP INDUSTRY MAGAZINE • FALL 2019 I t takes years to breed a new plant variety—a painstaking process that includes hybridizing, growing, trialing, selecting and then repeating those steps several times. But since hemp was legalized through the 2018 Farm Bill, hemp plant breeders have unprecedented new options to protect their plant genetics from those who would attempt to capitalize on years of hard work. Hemp farmers need varieties designed to grow in their specific climates and with unique traits suited to their end customers.With this in mind, plant breeders are developing new hemp varieties selected for specific growing regions and adding traits such as disease resistance and new combinations of cannabinoids. With all the work that goes into identifying traits, hybridizing new varieties and building up a supply of genetics for the marketplace, breeders must protect their work to ensure they receive payments associated with their genes, traits and varieties. Breeders have a few options to get that protection, so it helps to be familiar with the types of patents available. In the United States, breeders can seek: • Plant variety protection. • Plant patents. • Utility patents. Plant Variety Protection This type of patent protection was off-limits to cannabis breeders until hemp was legalized in last year’s Farm Bill. That’s when the U.S. Department of Agriculture (USDA) opened its Plant Variety Protection Office (PVPO) in Washington DC to hemp breeders. Plant Variety Protection (PVP) certificates cover varieties for up to 20 years.They’re recognized worldwide and help expedite protection applications in other countries. NewWest Genetics wasted no time applying for a PVP certificate after the protection was created by the 2018 Farm Bill, said CEOWendy Mosher. The Fort Collins, Colorado-based bio- tech company is applying its experience breeding row crops such as corn, rice, barley, canola and sorghum to hemp. “The primary goal is to create stable seed varieties that serve various end markets—and principally, right now, the active markets are grains and cannabi- noids and terpenes,” Mosher said. A member of the American Seed Trade Association’s recently formed hemp committee, Mosher said that as hemp genetics become more stable, the market will shift toward seed varieties versus clonal reproductions. Hemp entrepreneurs could see proposed PVP rules for asexually propagated clones by the end of 2019. How To Get PVP Plant Variety Protection is supposed to be a simple application process, with no annual maintenance fees, through the USDA. Here are some key details: • A PVP certificate costs more than $4,000. • Applicants must provide 3,000 viable, untreated seeds of the variety and 3,000 seeds of each parent of hybrid varieties. • Federal authorities must also keep tissue culture samples now that asexual tissue varieties are eligible for protection, according to James Weatherly, a patent attorney with Denver-based intellectual property law firm Cochran, Freund andYoung. The PVP certificate protects only the plant. Once the certificate expires in 20 years, seed samples can be accessed by the public. But there may be drawbacks to taking the PVP route to protect intellectual property. Some plant breeders opt out because of the requirement for turning over such a large number of proprietary seeds. Others may not like PVP certificates because they allow potential competitors to access those seeds through the Plant Breeders’ Rights system, a global plant-protection regulatory convention that dates to the 1960s, said Eric Mathur, chief science officer of California-based hemp and marijuana companyTilt Holdings. Plant Patents Unlike the PVP system, federal plant patents can be used by both hemp and marijuana breeders of asexually propagated or clonal varieties. “There’s no rule that (your product) has to be legal under the U.S. federal system,”Weatherly said. The U.S. Patent andTrade Office (USPTO) grants 20-year plant patents. However, protection is limited to the plant’s key characteristics, such as resistance to disease or dampness. Here’s what’s involved process: • Filing a plant patent application costs $400–$800.With legal and examination fees, a patent typically costs $2,500–$3,000. • Plant patent recipients are required to turn over a deposit of plant germplasm. “Under both patents and PVP, you are asking to exclude others from making, using or offering for sale that variety for 20 years,”Weatherly said. “The social contract for that right is (to) make (seed or tissue culture) avail- able to the public for future generations.” Utility Patents Broader than a plant patent, a utility patent offers the most protection avail- able under federal law. Also adminis- tered by the USPTO, utility patents Patent protection is a privilege recently made available to hemp breeders. Options for protecting intellectual property include: • Plant Variety Protection through the U.S. Department of Agriculture. • Protecting key characteristics through the U.S. Patent and Trade Office. • Applying for a utility patent, though the process can be costly and time-consuming. • Charging others to use your IP through Material Licensing Agreements. INBRIEF