Dale Hunt, Dr. Ethan Russo, and Robert Clarke form Breeder’s Best
Conversations regarding plant and human genetics sway like a pendulum, oscillating to the extremist boundaries and all points in between. Sometimes you’ll hear troubling concerns over “playing god” via genetically modified organisms altered using foreign DNA to their own or genetically editing an organism’s DNA in the hopes of some enhancement. There’s a documentary series on Netflix that highlights pros and cons of the protein CRISPR, bringing the rather esoteric molecule into everyone’s living rooms. Aspects of human genetics conversations may include concerns over various mutations that cause diseases in us (autism, down syndrome, or sickle cell anemia) and ways to prevent them. Even theft of our own genetics isn’t just of X-Files lore anymore! 
Plant genetics are often changed to cause some type of enhancement. Some plant genetics are modified when trying to create food sources that will be more resistant to climatic changes that Earth is already enduring.  (Of course, there’s nefarious examples like “Roundup ready corn”, too.) Other geneticists seek ways of generating healthier cultivations such that yields are augmented with the same energy inputs, maximizing resources used at the farm. And one need only look at engorged lists of cannabis cultivar names revealing crossbred, hybridized spawn to witness surmounting interest in the genetics of Cannabis sativa.
A debate has evolved that travels alongside a breeder’s interest in tweaking their plants’ genetics to create something more chemically unique – their signature plants. Creativity should be rewarded, as in music or film or any type of art, and the artisanal aspects of Cannabis breeding are no different. After all, anyone can try to rip off someone else’s hard work and innovation, cloning facsimiles that dilute the creativity pool.
Options for cannabis genetics include allowing your genetics to be openly accessed, or patent-protection where another grow/breeder would pay an access/license fee. Some companies through their actions have stoked the debate.
Recently, I interviewed Dr. Dale Hunt, to get his take on the conversation. Hunt is a lawyer and plant scientist who’s been practicing intellectual property (IP) law for 23 years, and just so happens to have a Ph.D. in plant cellular and molecular biology. He’s recently formed a supergroup with Dr. Ethan Russo, and ethnobotanist Robert Clarke, in forming Breeder’s Best, a company seeking to help cannabis breeders legally protect their plants, and connect these breeders with downstream businesses who can get the crops to a wider market.
T&T: What’s your take on open access and blockchain genetics? Why you feel that protecting one’s IP is increasingly important?
Hunt: I think most people who advocate for open access genetics see the concept of “open source” as the solution. Unfortunately, when people use the term “open source” the actual result they get is “public domain” in almost all cases.
I believe that anyone who creates something they want to freely share, or share with conditions, should be free to do so. But, by the same token, a plant breeder whose life’s work is expressed in one or more special genetic selections (cultivar/chemovar) should not be obligated or pressured by others NOT to protect his or her creative work with IP. If they want to take advantage of available IP protection, they should be free to do so.
Blockchain is a way of verifying the existence of something (in the form of information) as of a certain time because it can’t be hacked later to change the information or the dates indicating when information was put into the blockchain. So, the blockchain is basically a notarized time capsule for information that’s put into it. But blockchain doesn’t really create or prevent access to genetics. It’s a form of documentation. Some people advocate using blockchain to verify that a certain genetic or chemical profile existed as of a certain date to defeat some other party’s later attempt to patent the same thing.
Most people don’t have a problem with the fact that the creative work of an author or a musician is protected by copyright. They don’t expect those people to give open access to their creative work without some compensation, and it’s the IP that permits them to place conditions on the sharing—share for a fee. Since plant breeders don’t have automatic copyright protection like artists and musicians, they need IP protection in the form of patents or plant variety rights to place effective conditions on access to their creative work.
Hunt: This is a great question, and it’s a topic I intend to write about soon. We have major naming and terminology problems in cannabis. It’s not uncommon for plants with identical genetic profiles (i.e., clones of a parent or ancestral plant) to have multiple names, and it’s also not uncommon for multiple plants that are different genetically to have the same name. Some names might convey some information, but there is no guarantee of that.
The way patent offices and plant variety offices in different countries define a plant variety for IP purposes generally starts with a description of the cross that created the new variety. The breeder must list the parents, if known (although even this is based on names so there’s lots of imprecision at this stage) and describe how the appearance, performance, chemical, and/or genetic features of the new variety differ from those of its parents. The breeder typically must also provide a comparison to other similar varieties and explain how to distinguish them.
In the rest of the world, this on-paper description is followed by an actual evaluation of the properties of the new variety by growing sample plants from seeds or clones (depending on the nature of the variety). An examiner conducts a “DUS test” looking for Distinctness (different from other known varieties), Uniformity (typically relatively uniform in properties within a generation) and Stability (typically looking for uniform properties from one generation or planting to the next).
Since chemical properties can be highly variable based on how and where the plant is grown, as well as its age and many other factors, characterizing a variety by its chemical profile alone would usually not be reliable. More reliable and less variable are the specific morphological/appearance features of the plant. While these can also vary, most morphological variation will be less significant than the possible chemical variation. And of course, the DNA sequence is generally even more stable and consistent among related plants than the plants’ appearance.
Many people think that a DNA sequence is required for plant IP protection, but it’s actually not required. DNA can certainly be helpful and if someone has sequence information, we would use it in their application. But it’s not essential.
However, when it’s time to prove infringement, the DNA sequence would almost certainly be the evidence of choice. At the time of a suspected infringement, DNA samples from the protected variety would be obtained and compared with DNA samples of the variety suspected of infringement. In simple terms, the DNA information would either be the same or different—so it’s quite straightforward in most cases to prove or disprove infringement. But whether the DNA information is first obtained prior to filing for IP protection or only after an infringement is suspected, it will tell the same story.
T&T: What does IP protection mean for someone else who wants to use that seed/clone/tissue culture? Would they pay a usage fee? What would a fee like that typically cost? For a mom and pop grower, if they are not breeding their own genetics, how might these fees affect their overhead costs?
Hunt: IP protection doesn’t necessarily equate to less access. In many cases, it’s a key to more access because the variety’s creator can have confidence in putting his/her genetics out there for others to grow under a license. With good IP protection, they can know that if the plant slips out of the original grower’s control, there will be a way to stop the bootleg use of their genetics. So, if a breeder has created something special and has IP protection, someone else who wants to use the seed/clone/tissue culture just needs to be willing to pay an appropriate fee for the right to do so. This is analogous to paying Spotify for access to music or paying to see a movie or buy a book. A portion of all those payments is an IP (copyright) license fee.
Of course, it’s up to the IP owner (the breeder or someone the breeder sold his/her IP rights to), to set the usage fee and terms of access. What that looks like is highly variable, but in the most stable and successful plant licensing businesses I have seen (with companies that license genetics for fruits or flowers, for example), the license fees are relatively modest—enough to be worth it to both parties to make the deal, but not so burdensome that the licensee is immediately looking for alternatives. And in the world of cannabis, there certainly can be alternatives.
So, someone who has IP to license might actually do better charging a smaller fee that supports the profitability of more production, instead of squeezing the licensee for a high fee and cutting so much out of the licensee’s profits, that it really doesn’t make sense to do much with the licensed plants. The mom and pop growers who want to cultivate something special, but are facing heavy tax burdens and production costs, will only be willing to pay a license royalty if the value of what they are growing under license will be above the value they would get with other options. And they need to measure that value after accounting for the royalty as another cost of production. Basically, this means that some people offering licensed plant varieties at very high royalty rates might price themselves out of some good relationships. This is where the market comes in because all of this is negotiable.
T&T: After some past events involving a genetics company, some people spoke out against Big Ag or the like having control over cannabis IP. How would Breeders Best help protect all growers?
Hunt: That is another great question. We have a few key philosophical and structural differences from the Big Ag model that are very important. We work with independent Cannabis breeders with the goal of helping as many of them as possible find great demand across the world for what they’ve created. The independent breeders are the creative engine while we’re here to help with the IP protection and the commercial relationships necessary for great genetics to reach people and for breeders to get paid.
We protect the breeder’s IP at the company’s expense, but the breeder (not the company) will own the IP. Instead of owning the breeder’s IP, we function as the breeder’s exclusive licensee with the right and responsibility to make deals that will get the plant to those who want it and will bring benefits back to the breeder. But exclusive licenses can be prone to abuse and problems. I’ve done a lot of plant licensing and other IP licensing and I’ve seen that, when someone grants an exclusive license, they only have one pathway to success—their licensee.
The way to balance that and make it less risky for the breeder is for there to be a guaranteed minimum annual royalty that the parties negotiate early on—when both parties have some understanding of how the variety will do commercially. If we don’t meet the minimum annual royalty, we lose our exclusivity, so the breeder can look at other options for what to do with the variety. And if we don’t even hit a specified lower threshold of performance, we can lose the license altogether. These are all major contrasts with Big Ag.
In addition to our commitment to independent breeders, we want to do all we can to partner with small, craft growers and regenerative farms and help promote the sustainability of their approach to growing. In some cases, with some genetics, there will be demand from large farms too, and that’s okay. We believe there will be so much worldwide demand for great genetics as legalization spreads, that there will be room for small growers and big farms to succeed and thrive. This will often be the case because they’re not working with the same genetics and are really not in competition for the same kinds of buyers. The big farms will be growing varieties that perform well as commodity crops while the smaller farms will be growing varieties that can be really special, craft flower or products of great flower.
T&T: What are some of the most compelling reasons regarding why one should protect their IP? For a novice to these types of discussions, what can go wrong?
Hunt: The main reason to protect IP is that plants can be reproduced in huge amounts even starting from one cutting or a single seed. I have seen this happen with my fruit clients in my work as a plant IP attorney. In one case, my client found out that pretty much all green table grapes in a foreign country looked and performed exactly like their grape variety that they had spent over a decade breeding and selecting. And sales from that country into other countries had a bad effect on my client’s business in a lot of markets. Fortunately, we had established precautionary IP protection in the foreign country. Using a DNA test to show that those hundreds or thousands of acres of grapevines were covered by my client’s IP, the client was able to make a fair deal with the farmers who were growing all those grapes and turn them from infringers to licensees. If they didn’t have IP protection, this good result never would have happened. By the way, all those grapevines in that country had originated from a single cutting that someone grabbed on a farm tour and smuggled out in his sock! (They learned this in the process of settling the case and making a deal.)
If you have something special and you want to be sure you can be paid for its use over potentially many years, you need IP protection to put the brakes on those who would somehow get their hands on a bit of propagating material and create a whole business from it. Maybe some breeders don’t want to take that approach. But the ones who do like that approach need IP to get there. Having good IP can also help promote good stable relationships between breeder and grower, because the grower wants to keep the license and wants to grow something special that not everyone has.
Another thing that can go wrong is for a breeder to spend money out of his/her own pocket on IP protection without a plan or the resources for getting their plants out there to good growing partners. IP can be a waste of money if it’s just a certificate you hang on your wall. You need to be able to put it to work and to get your genetics out to the people who are looking for exactly what you have worked so long and hard to create.
T&T: How can protected IP lead to enhanced genetic diversity?
Hunt: If IP protection and reasonable license revenues make it more possible for breeders to devote their time and creativity to more plant breeding efforts, there’s at least the potential that some breeders will include sources of greater genetic diversity outside the “mainstream” gene pool of commercial cannabis. One of the goals of Breeder’s Best is to match up great, new, interesting, and even exotic genetics with sources of demand for those things. As more countries legalize and as more people and industries embrace cannabis use in all its forms (including the myriad uses of hemp), there will be far more outlets for the creative work of great plant breeders. There will also be more interest in new solutions to old problems, better plant medicines, new chemotypes, etc. And increased genetic diversity offers opportunities for those benefits.
In this context, I would think of IP as one kind of fuel that can drive and sustain and lubricate the creative engine. It doesn’t say which direction we are going, but it will help us get there. If customers value greater diversity (and I think they will when it’s more fully understood), they will seek it among their options for cannabis. It’s customer demand and breeder responsiveness that will be the main drivers of greater genetic diversity.
T&T: Can you discuss the decision to collaborate with Ethan Russo and Robert Clarke? How did this collaboration form?
Hunt: I am so glad you asked this question. It’s one of my favorite stories. When I was new to the industry and was first learning about CBD [cannabidiol], I heard so many personal stories about how CBD had helped people with a huge variety of diseases or other problems, from brain injury to autoimmune diseases to pain and sleep problems to… on and on… so many stories. While I trusted the sincerity of these accounts, as a scientist, I couldn’t understand how one molecule could have so many effects. It made no sense to me.
Then I heard about a doctor who had a completely plausible, molecular-level explanation that really made sense. This was Ethan Russo’s “chronic endocannabinoid deficiency” explanation.  In simplified form, it basically says that the body uses the endocannabinoid system to maintain different body functions in a “normal” range (this is called homeostasis). When the body doesn’t make enough of its own endocannabinoids to keep this system controlling homeostasis at full strength, lots of things can go wrong, including the kinds of diseases people had been talking about in connection with CBD testimonials. When you replace the missing endocannabinoids with CBD, it can restore the proper signaling in the system and therefore restores homeostasis. (Sorry, Ethan, I know I didn’t do this great insight justice, but that was how I understood it, and it was a huge A-HA moment for me.)
After learning about this, I was an instant fan of Ethan Russo. I saw that he would be speaking at Emerald Cup and my main goal was to meet him and just introduce myself, tell him I admired his work, etc. So, I had big plans to attend his talk and then hang out until I could meet him. As it turned out, I was part of a panel discussion at an earlier session and, when I was coming off the stage, Ethan’s business colleague, Nishi Whiteley, stopped me and asked if I’d be willing to have dinner with her and Ethan. That was a shocker! Of course, I said yes. It was only weeks before Emerald Cup that I’d had the idea for what became Breeder’s Best. Ethan and Nishi were among the first people I shared the idea with. They were enthusiastic and supportive. And that had a huge effect on my determination to make this whole thing happen, and Ethan and Nishi are now both part of Breeder’s Best.
Similarly, I had heard many people rave about Rob Clarke’s work as a Cannabis ethnobotanist. My favorite story was one a breeder friend of mine told me. When he was in federal prison on a Cannabis-related conviction, someone had a copy of Rob’s book, Hashish! It was THE treasure inside—guarded more carefully and studied more fanatically than any of the “men’s magazines” that were also in below-the-radar circulation. He said that he read this book so many times, he felt he’d almost memorized it.
So, I knew Rob was a big deal, but I had never met him. As Ethan and I were discussing the company, he suggested that I reach out to Rob and share the concept, so I did. What followed was a long series of meetings in Los Angeles and San Diego over a few months with Rob and his long-time business partner Mojave Richmond. I came to truly admire and enjoy the intellect and character of both Rob and Mojave. They generously and patiently suggested many things I needed to refine about the business concept. And they were also very fun to hang out with.
Breeder’s Best simply wouldn’t be as good or workable a concept, or as fun and exciting a process, without Ethan and Nishi, Rob and Mojave. I could tell similar stories about my great fortune in each situation leading to the other members of our team becoming excited about and committed to Breeder’s Best. Our team is strong, deep, unique, and fully invested in the mission and ethics of the company.
- Joh EE. Ethics Watch: DNA Theft: Your Genetic Information at Risk. Nat Rev Genet. 2011;12(12):808. [journal impact factor = 33.133; times cited = 6]
- Henry RJ. Innovations in Plant Genetics Adapting Agriculture to Climate Change [published online ahead of print, 2019 Dec 10]. Curr Opin Plant Biol. 2019;S1369-5266(19)30112-8. [journal impact factor = 8.356; times cited = 4]
- Russo EB. Clinical Endocannabinoid Deficiency Reconsidered: Current Research Supports the Theory in Migraine, Fibromyalgia, Irritable Bowel, and Other Treatment-Resistant Syndromes. Cannabis Cannabinoid Res. 2016;1(1):154-165. [journal impact factor = N/A; times cited = 20]
Dr. Ethan Russo
Dr. Dale Hunt