Plant genes CAN be patented….Despite what most people hear in forums

By | November 24, 2017
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Patentability is country dependent, and in the USA, a bred strain of a plant can still be patented, and recently has been with cannabis.
Here is the Cannabis Patent claim that recently issued thus debunking what most people falsely believe  cannot be patented.
Notice the Bd/Bt Allele language (naturally occurring DNA). Notice the Chemotype language. It is these two combinations that the USPTO is looking for to strengthen eligibility and traversal of 35 U.S. Code § 101,102,103.
If you can demonstrate that you bred (human modification) a special plant, you can get claims like the one below but not if they already exist in the prior art. Hence the importance of placing genotypes and chemotypes public to prevent this. Many old timers in the cannabis field do not believe this genotype/chemotype is novel but few of them have notarized proof that would survive an ex-parte re-examination process. Or maybe they do and can’t afford to challenge this? It is important to understand that once a patent is issued, the process to invalidate it is expensive (~$100K) and the burden falls on the defendant for delivering rock solid time stamped prior art.
This patent claim basically covers all Type II cannabis plants. This is likely the natural Hardy-Weinberg equilibrium of the plant in the wild but with a terpene oil content over 1% by weight. This is extremely broad. It will be repeated on Mitogyna speciosa unless we engage in documenting as many of these genotype to chemotype correlations that currently exist in the market place.
CLAIMS(20)

The invention claimed is:

1. A cannabis plant, or an asexual clone of said cannabis plant, or a plant part, tissue, or cell thereof, which produces a female inflorescence, said inflorescence comprising:

a) at least one Ballele, and at least one Ballele;
b) cannabidiol (CBD) cannabinoid content of at least 1.5% by weight;
c) a tetrahydrocannabinol (THC) cannabinoid content such that the THC:CBD content ratio is greater than 1.4; and
d) a terpene oil content greater than about 1.0% by weight;
wherein the contents of THC and CBD comprise acidic and decarboxylated cannabinoids as measured by high performance liquid chromatography (HPLC) and calculated based on dry weight of the inflorescence; wherein the terpene oil content is the additive content of the terpenes in the inflorescence’s terpene profile; wherein the terpene profile consists of terpinolene, alpha phellandrene, beta ocimene, carene, limonene, gamma terpinene, alpha pinene, alpha terpinene, beta pinene, fenchol, camphene, alpha terpineol, alpha humulene, beta caryophyllene, linalool, caryophyllene oxide, and myrcene; and wherein the terpene contents are measured by gas chromatography-flame ionization detection (GC-FID) and are calculated based on dry weight of the inflorescence; wherein a representative sample of seed capable of producing said plants has been deposited under NCIMB Nos. 42248, 42249, and wherein cellular cultures representative of said plants are deposited under Bigelow NCMA Nos. PATENT201611001, PATENT201609001, and PATENT201612001.

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