Intellectual Property and Medicinal Cannabis05/05/2020
The agreement between Medcann Colombia S.A.S and Klonetic Plant Science Inc. to make available for them different varieties of psychoactive and non-psychoactive cannabis, reminds the industry of the importance of intellectual property protection towards new developments. Colombia has become one of the leading countries in the export of medicinal cannabis. For this reason, it is necessary for entrepreneurs to inform themselves about the appropriate mechanisms to guarantee their rights.
In the different legal systems of the world, new varieties and scientific developments of plants can be protected either through patents or through plant breeders' rights. These regulations have been adopted within the framework of the WTO with the aim of providing legal protection to producers of new plant varieties.
Patents and plant breeder's right
Both patent and breeder's rights are independent intellectual property rights, with different protection and scope.
The patent right, gives a person the possibility of limiting the manufacture, use or sale of the product on which that right has been granted from third parties. The patent owner may successively assign or transfer the patent and grant license agreements on those varieties. Regarding the scope of protection, the minimum time under the patent modality is 20 years.
This concept was further developed through the TRIPS Agreement, within which patentable materials are considered as “any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application".
Colombia, as a member of the Andrean Community of Nations (CAN), is fully governed by what that organization has established in matters of intellectual property and other affairs. This corporation has indicated that plants or parts of the plants are not inventions and, therefore, cannot be patentable. However, despite the fact that the patent does not allow to protect modifications and new varieties of cannabis, the plant breeder's right does. This is an exclusive right that is based on the possibility of economic benefit and cost-benefit ratio that a new variety offers and is granted to whoever develops and finishes a new variety for its exploitation. The entity in charge of granting the breeder's certificate in Colombia is the ICA.
Not only is the development of a new variety necessary, but it must be homogeneous, distinguishable and stable. To be homogeneous, it has to be uniform in its characteristics, while stability implies that the unique characteristics of the seed must remain unchanged after the multiplication or reproduction process. Finally, the distinguishability lies in the possibility of clearly identifying the initial variety and the new one.
This right that protects the developers of a new variety, extends for a term of 10-15 years for species other than forest and fruit trees. This means that during this period of time, anyone who wants to produce or reproduce, commercialize, import or export must have authorization from the plant breeder.
Some countries like the United States allow the protection of new varieties from patents or plant breeder's rights; which constitutes a mixed protection. However, as evidenced, Colombia only permits the plant breeder's rights to protect new varieties that comply the conditions set forth in Decision 345 of the CAN.
Problems that entrepreneurs will face
Many of the seeds that are currently planted in Colombia have been brought into the country, some through a formal import process, some not; some with a duly executed licensing agreement with the seed owner, some not. This represents a future problem to the extent that national producers will seek ways to protect the developments through the plant breeder's right and the foreign originating developers of those varieties will be able to start international litigation against them for allegedly using their stains without good title.
The constant regulation of the National Government around the industry has allowed the country to position itself as one of the strongest exporters of cannabis, unlike other governments that have closed the doors to its development. Therefore, it is important that each company within the Cannabis industry get advice to protect the new varieties they develop. Not only to prevent third parties from requesting the rights related to the intellectual property of these varieties, but to ensure that those who wish to use it do so with the appropriate authorization of the plant breeder.