The Open Cannabis Project has a simple mission: to protect the richness and diversity of cannabis. Decades of careful stewardship and breeding have made cannabis into one of the most varied, interesting and powerful plants in the world. The growing wave of legalization may have the unintended consequence of narrowing and restricting this diversity. The Open Cannabis Project is a community-led organization that is building an archival record of all existing cannabis varieties, in order to ensure that they remain available, and in the public domain, forever.
A new cannabis industry is emerging, and the dominant forces giving it shape are a contradictory patchwork of state laws, and a huge and sudden influx of capital. Cannabis production could soon become dominated by a small number of large producers, and that the existing cannabis industry will be replaced rather than legalized.
This process puts the cannabis plant itself in danger. The centralized production model of modern commercial agriculture does not lend itself to the continued availability and development of so many different varieties. And the U.S. Patent and Trademark Office (USPTO) is now granting patents on cannabis varieties. These patents overlap with existing but undocumented varieties, and they stake out large territories that are then closed off to innovation.
The only way to protect the diversity of today’s cannabis is to build an archive of prior art that will expand the boundaries of the public domain.
Many breeders and growers are uncomfortable with releasing their varieties into the public domain. These are the people whose work led to such rich diversity in the first place, and they’ve generally never made much money from their efforts. Protecting these breeders and encouraging them to continue to innovate is critical.
But it’s also important that everyone realize that the plants these breeders have developed and sold are already in the public domain. Once something has been public for more than a year, it can no longer be patented. It belongs to everyone. Breeders can of course hold plants very closely, and protect them as trade secrets. But they can never be patented, at least not legally. Therefore releasing information about them only does good: it makes absolutely certain that they can never be patented by anyone else.
However, breeders can protect plants that they have newly developed (within the last year.) New varieties can be protected by simple plant patents (through the USPTO) or Plant Variety Protection (through the USDA). These types of protection are narrow, they apply to only a single well-defined plant variety and they are affordable.
Breeders can also apply for another kind of patent protection: utility plant patents. But these are the kind of broad and damaging patents that are expensive to obtain and defend for anyone besides wealthy corporations. And they are so sweeping that they stifle innovation. Two such patents have already been granted for cannabis. If many more of them are granted, the entire range of existing and potential cannabis varieties could be locked up.
We understand the importance that narrow plant patents and Plant Variety Protection can have for small breeders. Our mission is twofold: to fight patents that cover pre-existing plants, and to fight the use of broad utility patents that cover wide ranges of possible plants, almost all of which the patent applicant has never actually developed.