Protecting Cannabis Strains In Canada: A Growing Concern

Entrepreneurs and investors are quickly seeking to capitalize on what has been coined the "Green Rush" to the cannabis market. Those who finance, develop, produce and sell cannabis or cannabis derivatives should be cognizant of the intellectual property rights that are available in such products, as well as the risks of violating the rights of others. Plant breeders' rights (PBRs), patents and/or trade secrets may be relevant to the protection of a cannabis product and its method of production.

Branding and other related aspects of cannabis products may be protected through other forms of intellectual property such as trade-marks and industrial designs, which are not discussed in this article.

Plant Breeders' Rights

The only way to protect exclusivity in a cannabis plant in Canada is to obtain the grant of a PBR for a "plant variety" under the Plant Breeders' Rights Act (PBRA). To obtain a PBR, an applicant must not only demonstrate that the variety, such as a strain, is "new", but also that it is clearly distinguishable from all other varieties, stable in its essential characteristics and sufficiently homogenous from one generation of the plant to the next.

In general terms, a variety is considered "new" if the propagating or harvested material of the variety has not previously been sold for a prescribed period that varies, depending on the variety and whether the sale is made within or outside Canada, but is at least one year before the filing of the application.

A PBR only protects the specific variety of cannabis for which it is granted. To date, only a few cannabis varieties have been protected. There are issued PBRs and pending applications for varieties of hemp and a pending application for a variety of marijuana identified as "Big C".

A holder of a PBR has the right, in Canada, to exclude others from selling, producing, exporting, importing, making repeated use of, conditioning, and stocking the propagating material of the protected plant variety for 20 or 25 years, depending on the type of plant. In the United States, similar protection is offered under the Plant Variety Protection Act for sexually reproduced or tuber-propagated plant varieties, and under the federal Plant Patent Act for plant varieties that reproduce asexually.

Enforcement of a PBR against infringement is subject to several exceptions. A person may use the propagating material of a protected plant variety for private non-commercial purposes, for experimental...