#126 – Intellectual Property Protection in the Cannabis Industry with Dr. Dale Hunt of Breeder’s Best
All right. Hello, this is CBD School and I’m your host, Jenn Procacci. Today I’m going to be joined by Dr. Dale Hunt. He is the founder and CEO of Breeder’s Best and founder and senior attorney at Plant & Planet Law Firm. So Breeder’s Best is the first cannabis company to focus on developing intellectual property otherwise known as IP protection for independent plant breeders and licensing that provides diverse and unique IP to markets worldwide. Breeder’s Best benefits breeders, patients, growers, investors and many other stakeholders by delivering genetics with many of the lesser known and rare cannabinoids as well as desirable combinations of cannabinoids and terpenes. These special varieties are developed through traditional breeding techniques that achieve specific target chemical profiles and premium commercial products. So Dr. Hunt is with me here on the line. Thank you so much for joining us today. How are you doing?
I’m doing great. Thanks for having me.
Thanks for taking the time to be here. I’d love to start our time today by asking you something I asked all of my guests, which is what is your personal relationship with cannabis?
Oh, that’s a fun place to start. My first real exposure to it was that I had a friend in high school that smoked a lot and we used to go to concerts. And I was the Mormon kid that didn’t touch any of that stuff. And I was his designated driver. So we would be in that setting and I would get all kinds of exposure and never actually tried it. Then much later in life, I had the opportunity to, I guess, change my rules change my life. And soon after that, I also got an invitation to begin to work in the cannabis industry by being an advisor to the Open Cannabis Project. They were extensively at least trying to address issues of international as well as US intellectual property protection on cannabis and its impact on ordinary people. And they wanted a legal adviser to help them navigate that. So since then, that was about seven years ago, since then, I’ve become more and more involved to the point of leaving my partnership and a law firm to start my own firm, which does a lot of different things, but has a very heavy emphasis on cannabis.
What is a Plant Patent? The Plant Patent Act
Fantastic. Thank you for sharing that with me. I’m always interested to see how cannabis has taken people on a journey. And it certainly sounds like it’s had a significant impact on your professional and personal journey. I’d like to talk a lot today about plant patents and what Breeder’s Best offers for readers and everybody in the cannabis supply chain. So would you describe for our listeners who may not know what exactly a plant patent is?
Sure. And this goes back to the days of — many people, especially people who are into plant breeding, have heard of Luther Burbank. He was kind of the original, highly prolific plant breeder. And he originated all kinds of different varieties of numerous fruits and vegetables. And there was a lot of value that was being generated by that, but there was no real effective way to protect his work. And for that reason, and I’m sure several other reasons, Congress passed the Plant Patent Act back in the 1930s, which established a special form of protection for certain plant varieties as long as they’re asexually propagated, which in cannabis speak means as long as they’re cloned. It does not extend to seeds. But there’s a different form of protection offered by the USDA that does extend to seeds. And then there’s yet another kind of protection available through the US Patent and Trademark Office that also extends to seeds. But historically, plant patents were meant to just protect the individual genetic selection that somebody wanted to propagate asexually. And in that way, it would always be uniform and it would be stable.
And it’s an interesting kind of protection. It usually is granted faster than a regular patent. It has the same term of 20 years from the filing date. It’s a little bit less expensive to get than a regular patent, but it’s narrow. I explained to people a lot actually that a plant patent is a little bit like a copyright on a plant variety. So, you know, we know that creative people, if they make music or art or if they’re photographers or they write a book, there’s automatic copyright protection that exists as soon as they make that creation. But there’s no analogous kind of protection available for plant breeders even though they do tremendously important creative work. And the closest thing you get to it is a plant patent which is only infringed by making direct copies. You can make something that’s a lot like it. If it’s not a direct copy, it does not infringe a plant patent. Now there are some broader forms of protection that are available. But to infringe a plant patent, you have to make a clonal copy.
One other comment about that is I think some people are pretty alarmed that people might want to be patenting cannabis. And I respect that. I understand.I hear that a lot, too. I respect that. Because for many people, cannabis is not just a wonderful plant, but they have a really sacred kind of relationship with it. And it just feels wrong to patent it. And my answer to that is, first of all, I respect that. I would never try to talk someone into patenting something they didn’t want, didn’t think they should patent or didn’t think should be patented. But the way I look at it is that this is the only way for a plant breeder to have rights over their creative work that are analogous to copyrights. And as we all know, all you need is one little cut of the right material from a plant and you can make an unlimited number of copies. And so if you don’t have some kind of protection then you’ve got to have very tight control over access to the plants. So long answer to a simple question. But I think it really is an important opportunity for plant breeders to protect their creative work and be able to put it out there without losing complete control over it in one generation.
Thank you for sharing that information. That was a very helpful explanation of plant patents. And I appreciate you addressing the spiritual relationship many people have with cannabis. I’m a cultivator myself up here in Mendocino. And I have felt a little funny about the concept of patenting cannabis myself. So it was very helpful to hear your explanation. I’m interested. As an attorney, have you worked on any cases that involved plant patents or like specifically cannabis plant patents?
Yeah, actually, I have. There’s a breeder up there, who’s your neighbor in Mendocino County, who I’ve worked with since just after founding this law firm. We filed patents on some of his work. And I’m happy to say that those have been allowed and they’re just about to be issued. So he’s been breeding for a long time to try to make some special kinds of cannabis that just aren’t available. And yeah, they’re really not available in the form that he’s developed. And he wants to share it with the world. But he also doesn’t want his entire life’s work to go out there and never help him pay for all the time that he’s devoted to this. So that’s one example. We filed a lot of patent applications for a lot of clients. But this is one where there’s a real personal connection with the breeder. This really is his life’s work and his passion. And it’s exciting that we’re soon going to be seeing three new cannabis patents issued for him and his company and his efforts.
Breeders’s Best – Cannabis IP Protection and Licensing
Wonderful. And is that through Breeder’s Best?
That’s actually through my law firm, Plant & Planet Law Firm. The reason I started Breeder’s Best is because the law firm focuses on just providing the legal services to help people protect their intellectual property or to make a license deal. But I had a lot of breeders that approached me and said, “I’ve got something special, I want to protect it.” But as we started talking to them about, you know, the steps and the cost, it was pretty clear that they didn’t necessarily have good opportunities to do something commercial with their variety once they protected it.
And one thing that I learned is, when I was a new patent attorney, I was in a meeting with a new client and like, the senior guy was explaining to the client, he said, “it’s easy enough to get you a patent. But when you have a patent, it doesn’t just rain money. you’ve got to find a way to use that patent so that it’ll pay for itself and to support a business.” And so as I talked with a lot of breeders that really either didn’t have the business opportunities or weren’t particularly interested in running a business, but they did have something special and they wanted to protect it and they wanted the world to be able to enjoy it, it became clear to me that there was a point at which the law firm wasn’t the right way to help them. And that there needed to be a company that would not just enable them to make deals, but would go find the deals for them and help them find the right markets, the right partners in different places in California or potentially around the world that would want access to their genetics and would be willing to pay for it. So that when we help them protect the IP, there’s also a way to do IP licensing so that the reader can enjoy some revenue.
That’s really the reason I started Breeder’s Best. You know, if you ask a lawyer a simple question, you might get a long answer. To come back to your simple question, he may end up working with Breeder’s Best. He’s a pretty independent guy, and I really respect his independence and he’s looking at all of his opportunities. So we’re working with him in the context of the law firm to get this protection and then we’ll be thrilled with him however he chooses to commercialize it. It may be through Breeder’s Best or it might not be
Who is Patenting Cannabis Strains?
Fascinating. Thank you for explaining that. And it leads me to my next question for you, which is, what types of folks in the cannabis industry does Breeder’s Best work with? Such as the breeder you described, would you say he is a pretty large-scale breeder or is he more of the small scale, like legacy Mendocino type cultivator?
He’s definitely a legacy Mendocino guy way up a dirt road, behind a couple of fences. He’s just passionate about the plant and has a long, long connection with it. I would say most of the breeders that we work with are like that. They are independent people who either have a relatively small business, or in some cases, no real business at all. They’re just individuals. And what they want to do is breed the plant, and they would like somebody else to help them make the deals and turn it into revenues. And also just get it out there for people to enjoy and use.
At the other end of the spectrum, though, you know, from the many individual independent plant breeders we work with, we have been kind of surprised to be approached by some people who are already quite well established. People who’ve won or placed in Emerald Cup and who already have a name and a reputation and a license. And we’re really pleased and gratified that they’re also interested in working with us. I think what they recognize is that even if you’ve got a successful California business or a successful business in some other state, there’s a lot to be said for working with somebody who has done plant licensing deals all over the world. And that’s something I’ve done in my career as an attorney. And then there’s also a lot to be said for working with our team. Because I’m sure you know, and I’m happy to tell your listeners, it’s not just me. This company has very well respected and beloved Dr. Ethan Russo as our Medical Director and Robert Clarke, the author of the seminal books on cannabis evolution and the interactions between humans and cannabis, is our Director of Botany and Genetics. And we’ve got some other real tremendous people on the team. And so our goal and our belief is that anybody, any breeder, from individual independent breeder with no interest in business or no business access, or experience, all the way up to a very successful business that still wants to be able to leverage this team and our capabilities to getting their cannabis into markets all over the world, we would hope that we can be a good resource for anybody else across that spectrum.
How IP Protection with Breeder’s Best Works
That’s awesome. Thank you for offering all those details. I wanted to ask you about, sort of a specific real life scenario that popped into my mind when you were describing that. And I wanted to use my own farm as an example here. I have a 5000-square-foot permitted full-term outdoor farm here in Mendocino County. And we grow a lot of our own genetics and we did place in the Emerald Cup, but I would definitely consider us to still be growing our business. We’re still starting out. What kind of services could Breeder’s Best offer to a farm like mine?
Let’s suppose you had one or two really special varieties that you thought there might be demand for for a long time in a lot of places and maybe you’ve got even more than that. But even if you just had one that you thought was really special, let’s suppose it’s the one that has already won Emerald Cup or placed in Emerald Cup, and that you believe that there’s a real market for that. You would like to be able to make some licensed deals, but you don’t want anyone to, you know, you don’t want to deal with all the legal work, you don’t want to pay a lawyer, et cetera.
The way Breeder’s Best works is if we have a place on our website where people can make a submission. They can tell us about their variety that they are interested in possibly submitting to us. And then once we agree to work with them, we file for patent protection at the expense of the company. That’s done by my law firm. So there’s no expense to the breeder. We put the plants on a number of different farms to do a test grow. And that’s all subject to really carefully written agreements with very trustworthy farms. And the idea there is to see how the plant performs under a lot of different cultivation conditions. Perhaps in different microclimates or in the hands of different indoor cultivators. And we really establish a research baseline for how this plant performs. In which ways is it always the same and in which ways is it different? Are there certain climates around the world where it might really thrive and others where it might struggle?
So we try to document that as well as we can. So that that can go into the package of, you know, value-added information that that a licensee is going to care about. It’s gonna make someone want to pay a royalty for access to that. So it starts with IP protection. A really careful rigorous test grow and then using our network to help to find the right places, the right businesses that might want to take a license. And then we negotiate those license deals. And then there’s a royalty that comes back to the company and that is shared with the breeder.
And when I was thinking about starting this company, my idea was somewhat analogous to a music label. The artist is a creative person, but they don’t necessarily want to do things besides making music, they want to focus on that. There’s a record company that does everything else. They do all the legal work, the production, the marketing, all of that stuff. And then it creates a big market for that creative person’s work and the value from that big market flows back to that creative person. And in a very much the same way, in your situation, if you had a variety that you thought people all around the world could really benefit from, we would help you get the IP protection so that it was safe to put it in a lot of different places, make the right kinds of agreements, so that it’s not just IP, it’s also good, strong legal agreements with a trusted network, and then put it out there with good documentation so that people are going to be willing to pay a premium on that because they know what they’re going to get. And then the royalties start coming back and you get the benefit of that.
One thing I want to mention is that even though we’re getting the IP protection, our company, Breeder’s Best, is not going to own that IP. That IP will always be owned by the breeder. One of the things that was pointed out to me when I was using this record company analogy is that, yeah, record companies kind of rip off their artists and they get into fights with their artists. And I realized, yeah, a lot of that is about ownership and control of their copyrights. And I recognize that, for us to be a good partner for independent breeders and for us to be trustworthy, we need to make sure that we’re not perceived and certainly not behaving as some aggregator of IP rights. Yeah, we’re gonna have licenses for these things. But the independent breeders will always be the ones that own that IP. Another long answer, but there’s a lot to talk about there. There’s a lot that goes into making that whole thing work.
Working with Ethan Russo on IP Protection for Little-Known Cannabinoids
No worries on your long answers. They’re very, very informative and interesting. And it’s a fascinating subject matter. So thank you for describing those services to me. That was very helpful. Now, in the description of Breeder’s Best that I read at the beginning of the show, I talked about how Breeder’s Best works by helping deliver genetics with many of the lesser known and rare cannabinoids as well as desirable combinations of cannabinoids and terpenes. And I wanted to ask you to talk a little more about that. And maybe there is a sort of very unique variety of cannabis that you, Breeder’s Best, have worked with that you could use as an example or just anything you would have to say on that topic.
Sure. Yeah, there are a few things. I’ll start by telling a story. A couple of years ago, let’s see, I guess it was late 2018. I was going to Emerald Cup to speak on a panel. But I noticed that Ethan Russo was also speaking and I’d never met him and I was already kind of a big admirer. So one of my main goals for going to Emerald Cup was just to get to meet him and tell him how much I admired his work. So as I was coming off the stage from my panel discussion, Ethan’s business partner grabbed me and said, “Hey, we’ve been looking for somebody who knows plant genetics and IP, would you be willing to have dinner with Ethan Russo?” I was like, “Good heavens, yes, I’d have dinner with Ethan.” So we had dinner and we talked about this idea for Breeder’s Best. And Ethan mentioned, he got excited about it, because he has had for a long time a wishlist of different combinations of cannabinoids and terpenes that aren’t currently available in whole flower form and that he wishes did exist because he already has ideas about which kinds of conditions those would treat, or which kinds of needs those would best meet.
And so part of what we’re working on in Breeder’s Best is a particular search for things that fit Ethan’s wishlist. And those can become very quickly, really special medicines that are essentially endorsed by Ethan and that we already have, I think, a big head start in believing they’ll have a real impact on patients. So that’s one of, you know, when it talks about particular combinations of cannabinoids and terpenes, that’s largely inspired by Ethan’s wishlist. It’s not solely Ethan’s wishlist, but that’s a big inspiration. And to me, it’s just such an honor to be able to work with him and to help tap into the vast creative potential of all of these cannabis breeders to find things that will become great whole plant medicines.
But in addition to that, you know, on the rare cannabinoids side, everybody’s heard of THC and CBD. People in your audience I’m sure have heard of other cannabinoids like THCV and CBG and CBN and CBC and so on. There is special potential to help people and to make great medicines and great products from any of those cannabinoids and definitely from those cannabinoids in combination with each other as well as in combination with CBD and THC. And so we are definitely on the lookout for the things that you can’t already find in a dispensary or that aren’t particularly in a good form in a dispensary. You know, they’re not necessarily combined with the right terpene profile or something. So we are working with breeders who have submitted genetics that are way higher than normal in THCV or CBG or CBC, just to name a few.
And we’ve had inquiries from people who’ve heard about our company from all over the world saying, “Hey, if you can find this, we’ve already got a market for that.” And so occasionally on our social media, we’ll put out a request for genetics, which is kind of like, you know, one of those contract requests for proposals. Tell us what you’ve got and we’ll see if we can help to turn that into a success. And so we are on the lookout for really anything that can meet a need. We want to connect all this creative work on the part of the breeders with all the demand all over the world, from patients and product developers, so that we can have this plant realize its full potential to impact people all over the world.