The Ridiculous Rush To Try To Patent Pot
from the *sigh* dept
Over the years, we’ve had a whole bunch of posts demonstrating various industries where there is no direct intellectual property protection — and yet where we still find tremendous innovation and competition. These include things like the fashion industry (where you can’t copyright fashion designs), the restaurant industry and some others. In fact, a few years ago, a couple of law professors wrote an entire book highlighting competitive and innovative industries where there was a lack of intellectual property protection. And, yet, time and time again, we see people who show up in the areas where there’s lots of competition and lots of innovation, and insist that those industries need more intellectual property protection.
The latest such industry? Apparently the legalized weed industry.
As you’re probably aware, the US has been moving more and more towards legalizing marijuana, starting mostly with “medical marijuana” (and I use the quote marks there very deliberately), and increasingly opening it up for all kinds of recreational use (four states so far…). And, if you’ve paid any attention to the legalized pot business at all, you’d know that it’s (1) a huge business with (2) tons and tons of competition and (3) an incredible amount of innovation. Lots of pot growers are trying to come up with newer and better strains, and there’s a ton of other innovation going on concerning ways to ingest the stuff.
But the lawyers are descending… and they’re telling people they need to “protect” everything. The article linked above, in the SF Chronicle, is ridiculous on multiple levels. It zips back and forth between patents and trademarks, doing little to explain the (vast) difference between the two. It also presents an entirely one-sided story, insisting (totally incorrectly) that “venture capitalists” require intellectual property protection to invest:
Investors, particularly those coming from the tech world, ?are attuned to coming into a company and trying to secure as much intellectual property as they can quickly,? said Timothy Yim, the Startup Policy Lab?s director of data and privacy, who counsels cannabis-related startups.
?They want to make sure that you have as much of your intellectual property secured as possible? before the invest, said Kyndra Miller, an attorney whose San FranciscoCannabusiness Law practice specializes in weed clients, including Blake.
It’s true that there are some investors focused on “intellectual property,” but they tend not to be very good. Most of the top investors have no problem at all admitting that focusing on intellectual property is a mistake, because good venture capitalists are betting on upside. All intellectual property does is protect your downside risk most of the time. But the article just presents it as fact and keeps repeating the misleading message that locking down intellectual property is “necessary.”
?A year and a half ago, we started telling people to think about (intellectual property) because this is what?s coming down the line,? said Reggie Gaudino, vice president for scientific operations and director of intellectual property at Steep Hill Labs, a Berkeley cannabis analytics lab with operations in several states. ?Only in the last few months have people started to listen to what we had to say.?
Even worse, the article (again, ridiculously and misleadingly) insists that “open source” is somehow anti-business and a “kumbaya” concept, rather than a good business strategy:
?The reality is that most mature businesses have established the importance of intellectual property,? said Gaudino. ?But one of the first things I noticed (in the cannabis industry) is that none of growers and breeders wanted to discuss that. They?d say, ?No, we?re all open source,? and the whole cannabis kumbaya stuff. And I?d say, ?Let me know how that works out for you, because once this is legal, Big Pharma and Big Ag are going to come in here and grab whatever they can.??
The reality is that big businesses tend to focus on intellectual property because they stopped innovating, so rather than compete, they like to use the law to block competition. And tons of open source offerings are very much about real (big) businesses, and there’s no reason that shouldn’t be true in other fields as well.
There’s nothing wrong with folks in the industry trademarking their brand names and specific designs and such, but the idea that people should start to look to “patent” specific strains is deeply problematic:
To try to bring some order to the industry through science, Steep Hill analysts are using leading-edge technology, like a $1 million DNA sequencer, to ?try to establish the genetic map of cannabis? as Gaudino puts it.
He said all of the marijuana strains found on dispensary shelves are blends ?from the hand of man,? and he believes that they will be able to be patented once they are definitively mapped. In the last 1? years, Steep Hill scientists have accumulated 1,000 samples of weed, sifting through some 400 strains that are on the market. Many of them, Gaudino said, share numerous similarities.
In other words — using patents to limit innovation and competition, which is the exact opposite purpose that the law is intended for — and in an industry that’s already thriving, with tremendous innovation and competition. Once again, we see more evidence of how frequently patents have nothing to do with “promoting” innovation, but are used to stifle innovation and competition.