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Will pot be patented?

Smokin Moose

Fallen Cannabis Warrior
Cannabis lovers need to beware a pharmaceutical marijuana monopoly.

"If you legalize it, the corporations will just take it over!" As an activist, I hear this all the time. The concern is very real. The cannabis culture should not accept that control of our sacred plant is handed over to pharmaceutical companies, private corporations or government agencies. We must not permit any sort of patents on specific strains or any restrictions on who can grow cannabis for their personal use.

Pharmaceutical follies

The global pharmaceutical industry is a very large and powerful lobby group with a big impact on public policy. The pharmaceutical industry was either first or second place in Fortune magazine's "most profitable list" for 24 of the 32 years between 1960 and 1991, averaging almost double the return of the top 500 industries.1 Global pharmaceutical sales grew 12% in 2001, to over $364 billion.2 This powerful industry will act to protect its interests against competitors, especially natural ones like cannabis.

Despite its illegality, cannabis is used regularly as a medicine by millions of people across North America and around the world. If cannabis was to became a legal plant then there would likely be an exponential growth in the number of medicinal marijuana users, which would threaten the profits of the pharmaceutical industry. These big companies have a lot to lose, unless they can somehow get exclusive control over medical pot.

Canada is at the forefront of the global medical marijuana scene, and what happens there may be seen as a testing ground for how this will play out in other nations. In March of 2000, Cannabis Culture reported on a leaked document from the Ministry of Health (CC#24, Genetically modified med-pot?). The document revealed two troubling things. The first was that "the government plans to eventually only allow the use of inhalers, similar to asthma inhalers."

Using inhalers as a tactic to monopolize med-pot use while still maintaining prohibition dovetailed with recent pronouncements from the US medical establishment. "We believe that clinical trials of cannabinoid drugs... should be conducted with the goal of developing an inhaler," said Stanley Watson, co-director of the US National Academy of Sciences report of 1999.3

The second troubling part of the Health Canada document was that it revealed that they were considering a system which would allow cultivated cannabis strains to be introduced by pharmaceutical companies and patented as if they were genetically modified plants. This would give the patent holder the exclusive right to grow that strain of cannabis. This could easily lead to a system where all known strains of cannabis are quickly patented by corporations, keeping it out of reach of the home-grower, medicinal or otherwise.

Wolves in hemp clothing?

GW Pharmaceuticals is a seemingly progressive British company which, unlike their American counterparts, promotes "whole plant extracts" and organic, potent, soil-grown buds. The company also supports radical new concepts such as "self-titration" – letting the user establish dose levels. They have hired some of the most knowledgeable and honorable pot-activists as consultants. Dr Geoffrey Guy founded and heads the company.

In an exclusive 2000 interview (CC#26, UK doc grows pharmaceutical pot), Dr Guy told Cannabis Culture:

"People have to understand we are producing pharmaceuticals. If we went to standards boards and said 'this is a plant, can't you treat this differently?' they would laugh at us."

This viewpoint conveniently ignores the fact that herbs are treated differently than pills – at least by Canada's Office of Natural Health Products.4 The safety and efficacy tests imposed on the pharmaceutical industry came about from the Thalidomide disaster – not from anything herbs had done.5 Therapeutically active herbs like echinacea, St. John's Wort and others do not have to be tested like pills do, yet they are freely sold. Why the different standard for cannabis?

Dr Guy also echoes the standard claim that "smoking has unacceptable negative health effects." This statement flies in the face of the long history of smoked herbs such as mullein, coltsfoot and kinnickinnick being used with great success as expectorants or "lung-cleaners."6 This attitude also ignores the growing body of evidence that radioactive metals, mostly from chemical fertilizers, are the primary if not sole cause of cancer in tobacco smokers (CC#35, Radioactive tobacco).

Although it may be true that some would prefer to get their cannabinoids from an "inhaler," the real motivation for this form of research is to create a monopoly on the delivery system, and to allow the use of "medical marijuana" without actually allowing anyone to grow or use actual cannabis. An inhaler and the additional bureaucracy and control also adds substantially to the cost of what is otherwise a virtually free home-grown medicine.

Patented plants

In the mid-1990's Canada lost our tradition of allowing generic brands of synthetic pharmaceutical drugs to be copied and sold for much less than brand-name versions. Now that Canada strengthened the profit-margin of these drug company patents, along with the fact there is a growing trend towards medicinal use of cannabis and other herbs, foreign drug companies like Monsanto and GW want to gain exclusive control over the new Canadian med-pot industry, going so far as to patent strains of cannabis!

GW candidly admits to having or seeking patents on their delivery devices and "plant varieties" of cannabis. Under the heading "Intellectual Property Rights" their website says:

"An integral part of the R&D program is to establish proprietary intellectual property rights to protect techniques and technologies involved in the development program. The company will be seeking protection in the following areas: Plant variety rights; Methods of extraction patents; Drug delivery device patents; Patents on compositions of matter for delivery of cannabis; Methods of use patents; Design copyright on devices; Trademarks. GW is also developing specialist security technology which can be applied to all of its drug delivery systems. The aim of this anti-diversionary technology is to prevent any potential abuse of cannabis-based medicines."7

I don't feel that replacing the threat of jail with the threat of being sued by some patent-wielding corporation for "plant variety rights violation" is much of an improvement. And did GW's website say "specialist security technology"? Upon further investigation, we learn:

"...this technology is being designed to enable the recording and remote monitoring of patient usage. The technology should recognize and prevent any abnormal use that differs from expected prescribed usage."

I can see it now: "Citizen! You have been caught on our satellite monitor sharing your GW cannabo-inhaler with an unauthorized self-medicator! Put your hands up, and step away from the herb!" Is this the future pot activists have been fighting for?

The matrix

On the same page of the GW website are comments regarding a "matrix of interlocking intellectual property rights" and a "varied patent portfolio" protected "via the Plant Varieties Act." This act, first created in 1961 by an international group concerned with "breeders rights,"8 was foisted upon country after country, much like the Single Convention on Narcotic Drugs (also from 1961) and CODEX – the vitamin over-regulation scam of today (CC#09, Herbal holocaust).

Even Canada has a version of the act, and hemp is listed as one of the crops available for protection.9 Various re-writes of the act (in 1978 and 1991) describe what is required for you to own a strain of cannabis, or any other plant: it has to be 1) new, 2) distinct, 3) uniform, 4) stable and 5) be named in such a way as to avoid "confusion as to the characteristics, value or identity of the new variety or identity of the breeder."10

Because cannabis has been illegal to grow in Canada for many decades, any strain introduced for patent would be considered "new" and "distinct." Currently, the only variety of cannabis that has a patent in Canada is "Finola" – an industrial variety.

I had difficulty locating any information on any Canadian medicinal herb patents. But other countries have them, including Germany and some other european nations.11 How long before GW or some other corporation snags one of the popular strains, claims exclusive credit for the breeding work of generations, and makes a killing, while still keeping the rest of us from growing those same buds in our own homes?

Even if a modern company improves a strain a bit, it's only been in the game a few years. The strains they began breeding with are the product of world cultures where cannabis breeding has been going on for millennia. All modern breeders stand on the shoulders of giants, so where's the "community heritage" concept? Why can't everyone breed and grow any seed without fear of a lawsuit?
Pharmacists are now salivating over the prospect of being the exclusive dealers of all the herbs as well as all the pills. For example, in a July 2001 Vancouver Sun article titled Get ready to dispense pot, Canada's pharmacists told, we read:

"Robin O'Brian, who also teaches pharmacy students at the University of BC, said she's not necessarily an advocate of medical marijuana, just a pragmatist who believes that since the federal government is now sanctioning marijuana use for certain ill people, it should hand over the dispensing duties to professionals who can give patients 'expert counselling.'

O'Brian said she hopes pharmaceutical companies can come up with a medical form of marijuana that doesn't have to be smoked to prevent users from the tar and risk of lung cancer. ...'I'd be very happy if someone developed a sublingual form' she said."12

What "counselling" could pharmacists possibly offer, other than "All smoke is bad for you, so try this Prozac first!" Professor O'Brian also betrays her own ignorance on the subject when she calls for a "sublingual form" – ignoring the tinctures already commonly found in most compassion clubs.

The future of activism

The future of cannabis activism seems to be stopping over-regulation and monopolization of our favorite plant, and other medicinal herbs.

I am not opposed to the trade marking of strain names which a breeder has developed and popularized, nor to breeders building up their reputations and doing well financially as a result. There is a lot of room for that to happen in the emerging cannabis industries. But owning the rights to sell seeds under the name "Panama Red" is much, much different than owning the right to be the only grower of the strain Panama Red.

Cannabis activists all over the world must work hard to insure that, in the future, the only regulations surrounding cannabis will be useful ones, such as organic certification and preventing impaired driving. Regulations, if they are to exist at all, should only be created to address concerns of actual harms – not to serve the interests of those who wish to limit our access to cheap, natural medicines so they can sell us expensive, synthetic substitutes.


1. Scherer, FM, "Pricing, Profits, and Technological Progress in the Pharmaceutical Industry," 1993, Journal of Economic Perspectives, 7(3):97-115
2. Chemical Week, May 15, 2002, p.28
3. "Smoking not seen in medical marijuana's future." USA Today, March 18, 1999
4. "Ottawa to allow herbal health claims." The Province, May 20, 1999, A33
5. Steven B. Harris MD, "The Right Lesson To Learn From Thalidomide" 1992, phone: 310-825-1927
6. The medicinal use of smoked herbs is detailed in many books, including the following: Willard, PhD Edible and Medicinal Plants of the Rocky Mountains and Neighbouring Territories, Wild Rose College of Natural Healing, 1992; Turner, Thompson, Thompson, York, Thompson ethnobotany, 1996, Royal British Columbia Museum; Aikman, Nature's Healing Arts, National Geographic Society, 1977, p. 15; Magic and Medicine of Plants, Readers Digest, 1990, p. 259; Grieve, A Modern Herbal, 1992, p. 565; Moerman, Native American Ethnobotany, Timber Press, 1998; Hitchcock, Gather Ye Wild Things – A Forager's Year, Harper & Row, 1980, pp. 96-98; Meyer, The Herbalist (1918), Meyer Books, 1993.
7. www.gwpharm.com/corp_glan_inte.html
8. The International Union for the Protection of New Varieties of Plants (UPOV). UPOV - Welcome to the International Union for the Protection of New Varieties of Plants
9. Canadian Food Inspection Agency - Plant Breeders' Rights Office - List of Varieties by Crop Kind
10. www.upov.int/eng/about/protect.htm#genera
11. Czechoslovakia: www.zeus.cz/odrudy/verze/aregistration.htm; Germany: www.uni-duesseldorf.de/WWW/GA/newsl962.htm; Estonia: www.epa.ee/pat/patact.htm; India: sunsite.sut.ac.jp/asia/india/jitnet/india/csir/cimap.html
12. "Get ready to dispense pot, Canada's pharmacists told. Medicinal marijuana should be handled like any other drug, BC experts says." July 12, 2001 Vancouver Sun p. A1

by David Malmo-Levine
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