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Meds Patenting Cannabis


Vapor Accessory Addict
Staff member
I posted an article (somewhere) a while back that indicated Monsanto was trying to get a patent on cannabis. Leafly has started a series of articles on this....

Leafly investigation: Inside the billion-dollar race to patent cannabis

Patenting cannabis: A four-part Leafly investigation
Part 1, Inside the billion-dollar race to patent cannabis

“You can’t patent a plant, man.”

You may have heard that late one night while passing around a doobie—and it sure sounds right. After all, how could a capitalist enterprise be given legal domain over the DNA of a living being?

Can you really patent a plant? Yes. It's already happening with cannabis strains.
As anyone familiar with corporate agribusiness knows, however, it’s not only entirely possible to patent a plant, it’s commonplace. Patents are issued for GMO corn varieties resistant to specific pesticides. Patents cover Honeycrisp apples bred for extra sweetness. Once a plant is patented, nobody can legally grow anything that falls under that patent without acquiring the permission of the patent holder. And that typically requires a fee.

The U.S. Patent and Trademark Office (USPTO) has already issued several patents for specific kinds of cannabis (most recently one for a variety of high-CBD hemp), and for more wide-ranging “utility patents,” but so far they’ve gone unenforced and even unnoticed.

That won’t continue much longer.

In patent law, every week is shark week
Patent protection lawsuits in the agribusiness field have produced some of the nastiest, most expensive litigation battles of the past 20 years. In 2013, a jury ordered DuPont to pay Monsanto $1 billion for infringing Monsanto’s patents for Roundup Ready seeds, which are resistant to the corporation’s weed killer. Monsanto has also famously sued hundreds of small farmers to protect their seed patents. Now biotech and Big Ag are moving in on the cannabis plant.

Today’s legal cannabis market is worth an estimated $11 billion. That could easily double within the next few years. Imagine holding a patent that required every grower of a popular strain to pay the patent holder a licensing fee.

Biotech startups and Big Ag corporations aren’t imagining—they’re planning. With federal legalization looming, some are already filing patent claims on cannabis strains. The bigger players are waiting in the wings, ready to purchase those patents and claim ownership of hugely valuable DNA.

Prepping for the coming patent war

It’s not hard to imagine a Monsanto-fication of commercial cannabis farming.

Several players are already filing patent claims as federal legalization becomes increasingly likely.
In fact, several interested parties are already jockeying for that position as federal legalization becomes increasingly likely, and the threat of a massive cannabis patent war looms on the horizon.

So over the past few months, Leafly has investigated the state of cannabis biotech and what it portends for the future. What we found was a story—told in four parts—that’s perhaps business as usual in the cutthroat world of corporate agriculture, but represents a massive paradigm shift for traditional cannabis growers.

We start the series with the saga of Phylos Bioscience, a startup company that touted itself as the craft cannabis farmer’s friend—right up until the day founder Mowgli Holmes revealed his master plan.

Ready player one: Mowgli Holmes & Phylos Bioscience
In March 2019, Phylos Bioscience founder Mowgli Holmes stood before a crowd of high-net-worth investors in Miami and prepared to give a sales pitch. Billed as North America’s premier gathering of cannabis capitalists, the annual Benzinga Cannabis Capital Conference brings together entrepreneurs and investors who want to enter the booming industry.

Phylos Bioscience offered cannabis growers a way to protect the strains they'd spent years breeding.
Notably absent from the proceedings: cannabis growers, at least the kind who believe that farming shouldn’t require an eight-figure market cap.

You know the ones I mean: the OG underground heads up in the hills who kept the plant alive through decades of prohibition and now hope to find a toehold in the legal industry.

When Mowgli Holmes founded Phylos in Portland, Oregon, in 2014, those salt-of-the-earth weed farmers were his target demographic. They’re a cagey, distrustful lot, but Holmes steadily won them over with a virtuous story. Phylos, he said, would use cutting-edge technology to safeguard the plant’s incredible genetic diversity, while protecting small-scale growers and breeders from patent trolls and predatory Big Ag corporations.

Above: Phylos founder Mowgli Holmes outlines his vision at the 2017 CannaTech conference.
Creating a ‘galaxy’ of strains
In 2015, Holmes explained his strategy to Cannabis Now:

Holmes coaxed growers into having their heirloom genetics sequenced—and pay for the privilege.
“We keep hearing rumors—so and so lives way out in the Mendocino hills, he’s been growing this and that for 30 years without stopping, never hybridized it. And so we’ll send people out to track it down or try to get word to them. It’s not easy. People are a little nervous about this kind of thing, of course.”

Strain by strain, Holmes coaxed growers into having their unique heirloom genetics sequenced and added to a publicly accessible database—and pay for the privilege. Phylos’ online portal, dubbed the Galaxy, includes a 3D visualization tool that uses DNA data to map the relationships between thousands of cannabis varieties like constellations in the night sky.

Phylos: the boom years
Investors loved the Phylos story. They pumped more than $14 million into the company between 2014 and 2019.

Farmers and breeders also liked Phylos, and they loved Mowgli Holmes. The company founder’s personal style combined hippie values (he grew up on an Oregon commune) with scientific expertise (he earned a PhD from Columbia University). And his public statements left no doubt where his loyalties lay.

Phylos 2016: ‘We fucking hate Monsanto’
Here’s what Holmes told Vocative in 2016:

“We fucking hate Monsanto. If we can’t find a way to create a craft, artisanal industry, where lots of little people who really lavish love on interesting plants can be involved, and we just get this Anheuser-Busch industry, it’s going to suck.”

Some growers signed up simply because they liked the idea of participating in a scientifically significant exploration of the cannabis plant as a species and wanted to help Holmes fight back against Big Ag. Others joined to establish a “prior art” claim in case of future patent disputes.

Why establishing ‘prior art’ is important
Anyone applying for a patent from the USPTO must prove that their invention is new and non-obvious. The simplest way to reject or invalidate a patent claim is to show what’s known as “prior art”—evidence that the invention was already publicly known or available before the effective filing date of the patent application.

By registering their cannabis strains with Phylos, individual growers and breeders hoped to establish the prior art required to block any future patent claims on those same strains.


The USPTO uses this four-part test to evaluate patent applications. (Gillian Levine for Leafly)
Legal, illegal: patent office doesn’t care
But what about federal law? Cannabis is still a Schedule 1 narcotic according to the US government. So how can you effectively establish “prior art” when the invention in question is illegal?

I contacted the USPTO to find out. They sent the following reply via email:

The evaluation of prior art for cannabis plant is the same as any other application under review. Extensive search of the prior art in multiple commercial databases are conducted to thoroughly search the claims as compared to what’s already been taught in the public domain. If the strains are already present in the public domain then the claims are evaluated based on the teachings of prior art.”

The USPTO statement also noted that patent applicants are “under duty of candor” to provide anything they know about potential competing claims, and there are also legal means by which members of the public can challenge the validity of an existing patent.

Phylos 2019: They fucking love Monsanto
At the Benzinga investor conference, Holmes at long last pivoted from hippie to capitalist. He opened with a shot at the small farmers who’d trusted him with their prized DNA:

“Compared to how it’s going to be in a few years, [cannabis] kinda sucks right now…”

“In a few years, all the cannabis that’s around right now will be replaced by new, optimized, specialized plants… Our company is developing this next generation of plants, and it’s not going to take very long either.”

Over the past century, Holmes said, “every other major crop has been through an incredibly complex process of plant improvement, for every major important trait.” Only prohibition has kept cannabis out of the Big Ag loop—and that’s about to change, and quickly, because advanced technologies and techniques have vastly sped up the process of breeding.

Then came his big finish.

Bringing Syngenta, DuPont veterans aboard
Holmes name-checked a few members of the Phylos Bioscience Advisory Board, noting that they all have equity in the company. Like Ron Wulfkuhle, who once headed the GMO corn division of agrochemical giant Syngenta. And Barbara Mazur, who recently retired from DuPont Pioneer (“the world’s leading developer and supplier of advanced plant genetics”), where she worked in acquisitions.

“Having these guys around is just critical for us because we’re building a company that’s ultimately going to be acquired by that universe,” Holmes said. “We need to make sure we’re building what they need us to be building.”

Happy 4/20, farmers
On April 16, 2019, about a month after Mowgli Holmes’ Benzinga presentation, and just four days before the annual cannabis holiday of 4/20, Phylos publicly announced that the company would soon begin an in-house cannabis breeding program.

'So, you stole the genetics I paid you to test?'
Mz Jill, cannabis breeder, responding to the Phylos announcement
To many of the old heads who offered genetics for inclusion in the Galaxy, this felt like a cold betrayal. Breeders had been sold on the idea that Phylos was building “the world’s largest database of hemp and cannabis genetics” in order to prevent Big Ag companies from pushing them around. Now Phylos was using that same data to compete against them.

Mz Jill, one of the world’s best known cannabis breeders (she created Agent Orange and Jilly Bean, among others), expressed the outrage felt by a lot of her colleagues. “So, you stole the genetics I paid you to test?” she wrote in an Instagram post. “You told me this wasn’t true!”

No, no no, argued Holmes, including in a 9,000 word interview on the subject.

In an email to Leafly, he made his case more succinctly:

“We didn’t steal our customers’ plants, data, or IP. That data can’t be used for breeding plants, and, when customers gave us permission, we made the data publicly accessible. We’re also not planning to replace all the cannabis out there. We have always been supportive of the craft flower market, and when we do release varieties for that market, they will be open source and available for anyone to breed with. The large-scale market is a different story. Cannabis is not adapted to large-scale cultivation. It needs a lot of work, and it’s our job as a crop science company to develop varieties that really work for that market.”

Former Phylos employee speaks out
Despite these denials, many people reported feeling misled by Mowgli Holmes.

'Phylos has chosen to support Big Ag over craft botanists. They took the money. They fucking blew it.'
Former Phylos staff member
In a pseudonymous post published earlier this year in High Times, a disillusioned former Phylos employee described being bamboozled into pushing the company line when talking with growers. The ex-staffer claimed “the brass at the top of the company didn’t give a shit about the [cannabis] community.” The former employee wrote:

“[Phylos] has chosen to support Big Ag over craft botanists… They had a real, solid chance with one of the most valuable crops on earth as it emerges into full marketplace acceptance to stand with the right people, and change the way the game of agronomics is played. Instead, they took the money. They fucking blew it.”

The Open Cannabis Project closes
Backlash started popping up on social media immediately after the company’s April 16 announcement. It spiked a few days later when somebody began circulating a YouTube video (since taken down) of Holmes speaking in Miami at the Benzinga conference. Soon after, the Open Cannabis Project (OCP) voted to disband itself.

Conceived and created by Phylos ostensibly as “a project to protect heirloom varieties from overbroad patents as cannabis transitions into a legal market,” the OCP issued a statement announcing its own self-immolation, which also included an apology for playing “a key part in shaping Phylos’ public image as altruistic and science-loving protectors of the cultivation community.”

The OCP had already splintered off from Phylos in 2017 to form an independent organization, but the board felt nothing would ever remove the stain from their work.

Next, the Cannabis Classic broke ties with Phylos. Oregon’s premiere cannabis competition and tasting event had previously offered winning entries a free listing in the company’s solar system of strains. Mowgli Holmes had been part of the event’s original thought leadership circle. But no more.

“The bottom line is transparency,” says Steph Barnhart, the Cannabis Classic’s longtime program director. “We took the opportunity to stand beside the farmers we work with, and also to update our own data privacy policies.”

Phylos pushes back
Meanwhile, the angry comments online just kept building. Phylos fired back on Instagram with a lengthy response that was at times evasive, contrite, self-aggrandizing and opaque:

“It’s been suggested that we’re claiming ownership over plant samples that have been sent to us and leveraging our genetic database to compete against our customers. That would be really f*cked up. But it’s not true… We have no claim to any of those plants. And as for bringing dead plant samples back to life, it’s just not possible. And if it was, we wouldn’t do it, because they’re not our plants.”

At first glance, a strong pushback.

Holmes used a variation on the word fuck (just like how he “fucking hates Monsanto”) and flatly denied the allegations. But we’re dealing with a master of double talk. So what exactly is Holmes denying, and more importantly, what is he not denying?

Industry pros not pleased
Seth Crawford is a leading cannabis breeder and co-founder of Oregon CBD, a federally legal cannabis research and development company and CBD-rich hemp seed supplier.

'Mowgli is a brilliant guy, but it was clear from the outset that he had a specific vision of what was to come, and that was Big Ag moving in.'
Seth Crawford, Oregon cannabis breeder
In September 2014, Crawford was serving on the Oregon Medical Marijuana Advisory Board, and also teaching at Oregon State University. After reading an article in The Oregonian that profiled Phylos, he got in touch and arranged for a tour of their lab.

“Mowgli is a brilliant guy,” Crawford says, looking back five years later, “but it was very clear from the outset that he had a specific vision of what was to come, and that was Big Ag moving in and small farmers getting trampled. What set me back in our conversation was that he started playing devil’s advocate, and saying if these small farmers are going to get crushed anyway, why should we try to support them?”

Crawford says from that moment on he has advised people to be wary and not submit their strains to Phylos.

“I just assumed they were trying to scoop up as much data as possible and then get bought out by one of the Big Ag companies that do most of the world’s seed production.”

Next: A mysterious company called Bioscience Institute is patenting cannabis cultivars at an alarming rate. Who really owns the company’s patents?

Biotech Institute lists no executive officers and has no corporate home office. So... WTF is it? (Gillian Levine for Leafly)

The world first learned about Biotech Institute LLC two years ago in an explosive GQ feature by Amanda Chicago Lewis called “The Great Pot Monopoly Mystery.” In the story’s opening scene, Lewis describes getting approached at a cannabis industry event by “a faun-like 40-something man named after a character from The Jungle Book.”
Biotech Institute 'could sue people for growing in their own backyards,' warned one competitor.
That was, of course, Phylos Bioscience founder Mowgli Holmes, whose own controversial business practices were profiled in part one of this series.
Holmes warned Lewis that a mysterious company had begun registering patents on cannabis “so strict that almost everyone who comes in contact with the plant could be hit with a licensing fee: growers and shops, of course, but also anyone looking to breed new varieties or conduct research.”
Biotech Institute’s patents, Holmes warned, could conceivably give the company global control over cannabis: “They could sue people for growing in their own backyards,” he warned. “And the craziest part is no one knows who’s behind this or when they plan to enforce what they have.”

Who runs Biotech Institute?
According to its website, Biotech Institute LLC “develops groundbreaking, novel, and sustainable therapeutic products by optimizing the naturally occurring resources found within all living organisms.”
But what does that mean, exactly? And who stands behind Biotech Institute? The short answer is nobody really knows. And they didn’t reply to my emails—at least not at first.
The website’s “Who We Are” page doesn’t name any officers or employees of the company, or divulge any ownership information. But it does list an address in an office park outside Thousand Oaks, California.
So I paid them a visit.
Hello, anybody home?
Around 11 a.m. on a Tuesday in September, I arrived at an aggressively nondescript office park. Aside from a strip mall of upscale eateries a short walk down the road, there’s really nothing nearby but indistinct places like this one, where companies you’ve never heard of do things they mostly don’t want you to notice.
The company lists no names on its website, but claims to be based in Thousand Oaks. So I paid a visit.
In an afterthought of a courtyard, half a dozen carp swam in tight circles in a tiny pond, endlessly seeking a nonexistent path to open water. Otherwise all was eerily still as I approached Suite 226. A woman answered my knock and initially looked perplexed—then a bit annoyed when I explained that I’m a journalist. It’s a small office, one that clearly does not get a lot of visitors.
From the back emerged a white-haired man with a tight-lipped smile and crisp blue jeans. He stepped away from a floor covered in three ring binders to introduce himself as Carl D. Hasting—attorney at law and certified public accountant.
I said I’d come looking for Biotech Institute LLC. “This is the address listed.”
“I’m the lawyer for the company,” Hasting told me. “I couldn’t answer your questions if I wanted to.”
Okay. Who can answer my questions, I asked.
“I couldn’t begin to answer that.”
‘Get in touch with Gary Hiller’
Hasting explained that he functions as outside counsel for Biotech Institute. Eventually he suggested I contact Gary Hiller.

Hiller is the president and chief operating officer of Phytecs, a Los Angeles-based cannabis biotech startup associated with former California congressman Tony Coelho. A lawyer, former Congressional aide, and self-described “seasoned business executive,” Hiller has played a key but unquantified role in the rise of Biotech Institute and a cluster of other companies in the cannabis biotech space.
“Gary Hiller works for [Biotech Institute],” Hasting explained, “while [Biotech Institute] is a client of mine.”
I reached out to Gary Hiller. Eventually, he responded to me via email, but declined to disclose the names of any employees, executives, or investors in the company.
Patent #9095554B2
The sizzle copy on Biotech Institute’s website alludes to developing “proprietary approaches” to mitigating harmful impacts of THC, developing advanced medicinal applications for cannabis, and helping growers “enhance their yields through non-chemical means, while simultaneously reducing the risk of harmful pests and disease.”
But it never directly mentions that Biotech Institute has been steadily seeking out patents on the “breeding, production, processing, and use of specialty cannabis.” In 2015, the company was granted US Patent 9095554B2, the first ever directly related to cannabis genomics. It’s a doozy.


Patent 9095554, issued in 2015 to Biotech Institute LLC.
A powerful ‘utility patent’
While plant patents cover one distinct strain, utility patents like #9095554B2 are far more expansive and cover wide ranges of plant characteristics. It’s the utility patents that most concern those worried about a Big Ag takeover of commercial cannabis cultivation.
Mowgli Holmes has claimed that Biotech Institute’s existing patents could give them leverage over “almost anybody who comes in contact with the plant.” But given Holmes’ spotty track record for transparency, I thought it best to seek out a few additional expert opinions.
A patent on all THC:CBD plants?
Kevin McKernan was a research and development manager on the Human Genome Project (HGP), and one of the first scientists to sequence the cannabis genome. He now serves as Chief Science Officer at Medicinal Genomics, a cannabis science company we’ll learn much more about in part three of this series
I asked McKernan about the scope and power of Patent #9095554B2. “In the broadest reading of it,” he told me, “you could say they have a patent over all Type 2 cannabis plants that don’t have myrcene as the dominant terpene.”
Since Type 2 basically refers to cannabis plants that produce significant amounts of both THC and CBD, that’s an extremely broad patent, in the hands of a decidedly shadowy operation. Though McKernan is not so alarmist as Mowgli Holmes.
“I do not doubt that the talented team at Biotech Institute bred something novel and unique, and they have excellent documentation to back up what they have done,” McKernan said. “But I think the gap lies with how broad the claims stand. Still, it’s anyone’s guess how this will play out, as the cannabis industry is new to the U.S. Patent and Trademark Office.”
The patents might not be valid
I also asked Dale Hunt, who is both a registered patent attorney and a lawyer specializing in cannabis, to weigh in.
Hunt told me that Biotech Institute’s “most expansive patents are widely believed to be invalid,” adding, “That’s not a legal opinion but rather a restatement and summary of numerous conversations I’ve had with people in the industry who attest that the chemotypes claimed in these patents are simply not new. If that is indeed the case, then the patents would not be valid.”
Tracking down the inventors
In addition to Patent #9095554B2, Biotech Institute also holds cannabis patents covering methods of analysis and classification systems; utility patents covering plants with novel chemistries; plant patents covering particular cultivars; cannabis propagation methods; and composition claims.
This includes six separate utility patents (like #9095554B2) that cover broad ranges of plant characteristics. And in just the past year they’ve applied for additional patents tied to specific cannabis strains, including Lemon Crush, Cake Batter, Primo Cherry, Holy Crunch, Rainbow Gummeez, Guava Jam, Grape Lollipop, and Raspberry Punch.
My first attempt to shed light on the company’s backers ended up at the dead end of a Thousand Oaks office park. But there were other clues to follow. Every patent is registered to both an assignee (who owns the patent) and an inventor. All of which is public information.

So I sought out Michael D. Backes, Mark Anthony Lewis, and Matthew W. Giese—the three men listed as inventors on Patent #9095554B2.
Biotech’s dream team
Individually and together, the three inventors listed on Biotech Institute’s first patent have made huge contributions to the world of cannabis science. They have a legacy of research and innovation that they’re justifiably proud of, and one that has provided significant benefits to cannabis breeders, growers, consumers, and patients around the world.
But when it comes to talking about patents, they turn evasive.
Matthew Geiss declined to speak with me at all.
Mark Lewis graciously spent two hours with me on the phone, without ever disclosing how exactly Biotech Institute LLC gained control over his inventions, or what he got in return.
Michael Backes at first flatly refused to discuss patents, then fired off a series of increasingly contentious and insulting emails in response to my questions. Ironically, those emails came closest to answering my questions. But more on Backes in a bit.
First, let’s start with Mark Lewis, an idealistic cannabis enthusiast with a PhD in biochemistry from Purdue.
Mark Lewis: garage inventor
Almost immediately after earning his PhD in 2007, Lewis moved to California to pursue “innovation-focused work” in the cannabis space. Initially he set up a lab in his own garage, he said, “like the start of Silicon Valley.” Then in 2011, Gary Hiller came along and helped him incubate a “data-driven plant science” business called Napro Research, where he remains president to this day.
Yes, the same Gary Hiller who works for Biotech Institute.
Lewis says that when Napro started, the laboratories testing cannabis didn’t have validated methods. So he “hired three chemists from Pharma and started writing validated methodologies” that were then published open source, so any laboratory in the world could use them, all in an effort to elevate testing standards to benefit both the industry and consumers.
I asked when his focus shifted to creating patentable intellectual property, and how Biotech Institute ended up as the beneficiary of that research.
Lewis responded by defending the importance of patents, biotech, and Big Ag.
“I’m not a patent lawyer,” he told me. “I’m a researcher. My contribution is innovation, not patents. I’m motivated by expansive outside-of-the-box innovation. The IP merely helps justify the time, energy, and resources spent during the innovation process.”

Above: Mark Lewis, speaking at DefCon 26 in Las Vegas in August, 2018.

“Did Biotech Institute fund your work?” I asked.
“They supported our work, yes,” said Lewis.
“Did you have an understanding of how they planned to use those patents to secure a return on that investment?”
“No,” he said.
And what if Biotech Institute planned to follow the Monsanto model?
“I definitely don’t have a crystal ball,” Lewis said, “but I do like to point out that there’s a lot more food available to a lot more people in regions where malnutrition and starvation were commonplace because of companies like Bayer/Monsanto and their innovations.”
Lewis also confirmed that Biotech Institute has already begun working with cannabis and hemp farmers—“over a dozen in six states,” he said. Those farmers contact Lewis’ company, Napro, for access to proprietary genetics. The farmers then pay Biotech Institute a licensing fee.

The latest breeding technologies
As one example, Lewis points to Molecular Farms, “an all-organic grower of premium cannabis, using the latest breeding technologies” that in 2017 won Best CBD Flower (Guava Jam) and Best Overall Flower (Lemon Crush) at the prestigious Emerald Cup.
Both strains are patent pending, with Mark Lewis as co-inventor and Biotech Institute as assignee. Lewis says Napro and Biotech Institute have also been supplying patented CBD-rich hemp cultivars to commercial farmers, including many eager to find a profitable, eco-friendly crop to replace tobacco.
I finished our long conversation with a greater appreciation of how much Lewis and his fellow inventors have contributed to our understanding of the cannabis plant, and how their breeding of new next-generation strains can produce marked improvements in everything from plant yield and drought resistance, to tailored medicinal effects and wholly unique terpene profiles.
But what’s frustrating is that he refuses to acknowledge that there’s a considerable trade-off involved. That biotech companies acquire utility patents on plants not to help humanity, but to increase profits, consolidate power, and—eventually—vertically integrate their operations. Until they’ve sucked up as much market share as possible while leaving their competitors (and the Earth’s topsoil) in the dust.
That’s how Big Ag have grown ever bigger, richer, and more politically influential over the last fifty years, while during the same timespan, America’s small family farms have been disappearing in droves. So maybe those of us worried about the same thing happening to cannabis aren’t so naive as we look.

Michael Backes, author of Cannabis Pharmacy, is well known and respected in the cannabis world. But he gets testy when asked about his work for Biotech Institute. (Gillian Levine for Leafly)
Michael Backes himself into a corner
In 2007, Michael Backes founded the Cornerstone Research Collective, a pioneering patient-focused California medical cannabis organization. Backes was a founding board member of the National Cannabis Industry Association, his book Cannabis Pharmacy: The Practical Guide to Medical Marijuana is one of the foundational works in the field, and he’s a frequent guest lecturer at universities around the nation.
'I don't do interviews about patents,' Backes told me. 'I write them.'
He initially told me via email that he won’t offer any comment on cannabis patents, including those that list him as co-inventor.
“I don’t do interviews about patents. I write them.Nothing comes from speaking about them… And to clarify: I do not get money in any form from my first utility patents. Never have received money or royalties or license fees or stock. Never will… I do not own any financial interest in ANY patent grant, directly or indirectly.
Which sure sounded odd, not just because he would have performed an awful lot of painstaking work without “any financial interest,” but also because those patents didn’t enter the public domain, they became the property of Biotech Institute LLC, a privately held company with almost no public face. Something didn’t add up.
“What motivated you to pursue and put your name on those patents,” I asked, “if it was not a financial incentive?”
Here’s a taste of the email exchange that followed:
Backes: Because when I started in 2011/2012, nobody had ANY Type II cultivars that weren’t loaded with myrcene. ALL CBD cannabis tasted like a rope cured in shit… This is when California’s idea of a state-of-the-art cannabis lab was run, respectively, by a degenerate poker player and a warm, friendly stoner. Back when I tried to explain terpene pharmacology to you [in a 2012 High Times interview], you looked at me like my Border Collie looks at me when I speak Spanish. I had a state-of-the-art chemistry lab solely established for exploring the plant and not just trying to cultivate crap that breaks 30 percent THCA. Run by two real ex-pharma chemists with decades of cannabis cultivation experience. We did it simply because we were the only folks in the US that could.
Leafly: Okay, admittedly I’m a little slow, so let me make sure I’ve got this right. Because you’re so much smarter than everyone else you pursued these patents with no financial gain for yourself (direct or indirect) and thereby effectively put these valuable patents in the hands of…. who? And what made [Biotech Institute LLC] worthy of such a selfless gift?
Backes: No I am DEFINITELY not smarter. Just got VERY lucky and started much earlier on the science/raise money to do science front… What made them worthy??? LMFAO! Oh, please, selfless one. The person who wrote my check, your check, anybody’s check. Don’t want to keep you, your work at the soup kitchen is waiting...

I do not benefit from the patent and my sole intent in writing it was to create organoleptically pleasing Type II cultivars and homozygous seed to sell.
Leafly: I’m not disputing that your ‘sole intent in writing it was to create organoleptically pleasing Type II cultivars and homozygous seed to sell,’ but that leaves open the question of your intent in granting Biotech Institute the role of assignee.
Backes: When I have an idea for a patent and write one, whether I work for the Red Cross, the CIA, Harvard, or Monsanto, they own it. I have to assign it, but so does every single limp dick that creates IP for a company anywhere in the known fucking universe.
Don’t hate the player, Michael Backes seemed to be telling me. Hate the game.
Fund researchers, reap patents
Not long after my back-and-forth with Michael Backes, I received an emailed reply from Biotech Institute offering to let me submit questions in writing.
I asked about their patents—how expansive are they? And has Biotech Institute LLC ever had cause to enforce them?
To which Gary Hiller, Managing Member of Biotech Institute LLC replied:
“Although BI’s aggregated patent portfolio is expansive, each individual set of allowed patent claims is narrowly tailored to cover a particular, specified invention… Today, BI is focused exclusively on facilitating continued innovation to benefit farmers, adult-use customers, medical patients, and public safety generally. We will address the issue of enforcement if and when it is prudent to do so.”
Is it possible that Biotech Institute LLC would ever sell one or all of its patents to a company like Monsanto/Bayer?
“We license our technology and provide support in the form of genetics and other know-how to assist our partners to produce award-winning cannabis. It is possible that some could view these partners as falling within the category of companies cited in your question. Separately… the phrase ‘a company like Monsanto/Bayer’ seems to reflect an inherent bias that we do not share.”
Girding for a patent war
So far Biotech Institute has licensed its patented seeds and clones through partners like Mark Lewis’ company Napro, but has not yet enforced its cannabis patents. Perhaps they never will. But with so little known about the company, it’s also not hard to imagine them patent-trolling the entire cannabis industry.
All they would have to do to ignite the Great Cannabis Patent War is send a single letter to a commercial cultivation operation claiming infringement and demanding retribution. Thus leaving the grower with a choice: pay up, or fight it out in court.
Even if you mount a successful defense, legal fees alone can easily reach hundreds of thousands of dollars or more. For a small operation, that’s often too bitter a pill to swallow, especially when you could conceivably spend all that money and still lose.
Right or wrong, for most companies hit with a patent claim, it’s often wiser to just give them what they want. Which is exactly how Big Ag got so big in the first place.
Coming in Part 3: A leading genetic scientist wants to open-source the cannabis space. What’s behind his crusade to move cannabis DNA into the public domain?
Part 3

One man’s crusade to open-source cannabis DNA


If the cannabis genome map for various strains is already published, nobody can patent them—and lock them up. (Gillian Levine for Leafly)

In the late 1990s, Kevin McKernan worked as a research and development manager on the Human Genome Project (HGP), at the time one of the largest scientific research projects in human history. That massive effort was publicly funded, but by the time the work was successfully completed, up to one-fifth of the human genome had been privately patented.

To keep cannabis in the public domain, Kevin McKernan published a genome map for a specific strain.
Vowing not to let the same fate befall cannabis, McKernan decided that the best way to circumvent future attempts to patent all or part of the plant’s DNA would be to create a genome map for a specific strain and put it in the public domain.

So in 2011, McKernan and his newly formed company, Medicinal Genomics, mapped the DNA of a high-THC strain called Chemdog. After making the data publicly available using Amazon’s EC2 cloud computing system, McKernan informed the U.S. Patent Office so the federal agency would have that information on hand if and when an individual or corporation applied for a patent covering the same ground.

Mapping Jamaican Lion
By 2018, Medicinal Genomics’s ability to map the genome of cannabis strains had advanced greatly. So when a cryptocurrency gave McKernan’s company 150 DASH (approximately $67,500 at the time of the grant) to map a strain called Jamaican Lion, the genome was assembled and publicly available within 60 days of the payment.

Blockchain technology didn’t just fund the effort. Jamaican Lion’s actual genomic information was also encoded directly into a blockchain. That made sure the data was published publicly and securely, with a globally recognized timestamp, in a way that can’t be edited after the fact.


(Gillian Levine for Leafly)
McKernan specifically selected Jamaican Lion, he told Leafly, “because the grower demonstrated to us a fairly detailed forensic trail of documentation to back his claim,” including a second-place finish in the CBD category at the 2011 Cannabis Cup in San Francisco and contemporaneous results from Steep Hill Labs in Oakland confirming the strain’s cannabinoid and terpene content.

Which claim will prevail

That paper trail is important because it predates the patent applications of Biotech Institute LLC, a shadowy cannabis science company profiled extensively in Part 2 of this special report. Which means that if Jamaican Lion can be proven to have exhibited the same properties described in Biotech Institute’s first patent at least a year prior to when the Biotech patent was issued, then that would effectively invalidate Biotech’s claims.

But that’s far from a sure thing. Cannabis patent law remains in its infancy, and the plant remains federally illegal in the United States, so it’s pretty much impossible to predict how the government will weigh a claim based in part on a High Times sponsored harvest contest.

Above: Kevin KcKernan outlines his company’s open source work on the strain Jamaican Lion, at the CannMed 2019 conference.
The feds will ultimately decide
“The problem the U.S. Patent Office is having—as they comb through cannabis patent applications—is that it’s hard for them to gauge what ‘prior art’ really means,” McKernan said, “because there’s been so much prohibition and censorship in the field.”

McKernan thinks Jamaican Lion has a solid case to subvert BioTech’s patent, but offers no guarantees. He believes the facts are on his side, but also notes that “there’s a presumption of validity once a patent issues, so overturning this requires ironclad data.”

In the end, according to McKernan, it will come down to how a government bureaucrat with limited understanding of cannabis weighs the evidence.

Monetizing genetic tools
If Medicinal Genomics puts their DNA data in the public domain instead of selling it to Big Ag or bringing it to the patent office, then how do they make any money?

According to McKernan, they “produce and sell genetic tools that enable growers to improve yield, transparency, and safety.” Those tools include genetic tests for plant and human pathogens on cannabis; and portable genetic tests for cannabis male detection, CBD/THC genetic detection, powdery mildew, Botrytis, Fusarium, and other pathogens. “We don’t run these tests ourselves,” he said. “They’re all either run at the point-of-grow, or we enable any capable laboratory to run them around the world.”

Medicinal Genomics also sells cannabis DNA sequencing services, including etching that data onto blockchains. And they run the annual CannMed conferencein Pasadena, California.

McKernan told Leafly his privately held company’s revenue is growing rapidly, but declined to disclose Medicinal Genomics’ size, annual revenue, or valuation.

A data harvest play
While McKernan is clearly bullish on his startup’s financial future, he also takes pains to distinguish Medicinal Genomic’s business practices from those of Phylos Bioscience founder Mowgli Holmes (see Part 1 of this report), who spent years claiming to “fucking hate Monsanto,” only to turn around and make a public declaration of his company’s intention to be bought out by Big Ag.

“Phylos was a premeditated data harvest play,” McKernan said, “which happens in every market genomics marches into.”

First, McKernan explained, a company acts as a tech savior, “then it offers low cost crap genomic sequencing the market is too unfamiliar with to quality control.”

Finally, McKernan said, these companies sweep up their clients’ data and use it to compete against them.

“We alerted the cannabis market to this many years ago when it was clear Phylos was not making data public that they claimed they would,” McKernan said, “but it fell on deaf ears at the time.”

Why the delay?
McKernan says Phylos took two years to start making certain data public, a timeframe that founder Mowgli Holmes does not dispute.

“Maybe Phylos didn’t have the same sense of urgency as their clients,” McKernan says. “Did any samples submitted to Phylos fit Biotech Institute’s first patent description? That patent was under examination during the timeframe Phylos kept data private. Had they been doing what they promised customers (protecting them from patents like Biotech LLC by promptly putting data public), they may have succeeded in generating prior art the examiners could have seen.”

Mowgli Holmes countered that the delay was due to the “huge amount of manual work” involved in formatting all that DNA data and uploading it to the National Center for Biotechnology Information’s databases, which are federally maintained and serve as “the recognized public repository for genomic data.”

“We also never had any reason to rush to do it,” Holmes adds. “ Making the data public wasn’t some obligation that we were under. It was an extra thing we decided to do because we saw that it could serve a valuable purpose as patent-blocking prior art.”

“The idea that we were supposed to rush to make it public came from a competitor whose approach to business is to post constant attacks on social media,” added Holmes. “He planted a lot of false notions about the value of the data and formulated this idea that we were secretly hoarding it for our own proprietary reasons. It was a funny idea, because he’s a geneticist and he knew full well that the data wasn’t useful to us.”

Phylos could prevail
McKernan maintains that Phylos’ collection of DNA data is extremely valuable for achieving the company’s twin goals of starting an in-house breeding program and getting bought out by Big Ag. He also says that despite all the recent controversy, Mowgli Holmes may still come out on top.

“I suspect Phylos has a very valuable DNA library that they collected from customers and likely have more sequence than what is public. The field of genomics produces exceptional gains in the Ag markets. You can make a few pivots and still strike gold. They are assembling a team with more AgGenomics experience, so I would not write them off.”

Next in Part 4: Old school cannabis farmers and strain breeders plot strategies to protect their heirloom intellectual property from global agricultural corporations.
Part 4

Cannabis farmers scramble to protect heirloom seeds from Big Ag


(Gillian Levine for Leafly)

Every June, the cannabis software company Meadow hosts a multi-day conference in a California redwood forest. Held at an old Boy Scout camp near Navarro, about 140 miles north of San Francisco, the event draws a crowd of idealistic techies, conscious capitalists, and small-scale legacy weed growers—with a few Wall Street sharks disguised as Burning Man radicals circulating in the mix.

'All of the world's biggest agricultural companies want our genetics.'
Dan Pomerantz, founder of Rebel Grown
I drove up this year specifically to attend a roundtable called “Preserving Cannabis Genetics and Appellations of Origin.”

The title hinted at some relevance to the percolating patent wars within the cannabis industry, particularly given the initial inclusion of Phylos Bioscience founder Mowgli Holmes (see Part 1 of this series).

Holmes dropped out of the panel, which didn’t surprise many at the conference, given Phylos’ controversial pivot to embrace corporate agribusiness.

Corporate threat replaces criminal risk
In his absence, the discussion turned into a kind of ad-hoc support group for old-school cannabis breeders.

Until recently, cannabis growers operated outside the law—and the Monsantos of the world couldn't go there.
On the panel and in the crowd, second- and third-generation family farmers from the Emerald Triangle—Northern California’s legendary cannabis growing region that encompasses Humboldt, Trinity, and Mendocino counties—spoke with great pride of heirloom strains their families have developed and kept vital.

Theirs is a rich, diverse, and decentralized genetic heritage. They’ve managed to keep their heirloom cannabis DNA out of the hands of global agricultural corporations largely due to prohibition. Until recently, almost every cannabis grower in the world operated outside the law—and the Monsantos of the world couldn’t go there.

Prohibition brought its own risks, of course. For decades, these cannabis botanists practiced their craft while being hunted by federal agents and local deputies. Now, in the era of state-legal cultivation and sales, they face a new existential threat: armies of corporate lawyers stockpiling patents capable of limiting what can be grown, where, how, and by whom.

Farmers and breeders in the crosshairs
In 15 years of reporting on cannabis, I’ve visited many of these legacy cannabis farmers. Despite all of the past and present threats to their freedom and livelihood, they’re by and large a very chill bunch.

But at last summer’s Meadowlands conference, the old-school strain breeders and growers were clearly shaken to their roots. The Phylos fallout, plus a slow-burning anxiety over Biotech Institute’s ongoing patenting project (see Part Two of this series) had them seriously agitated.

A great cannabis patent war that’s been building up for years feels poised to break wide open, and it’s not hard to guess who’s likely to get caught in the crossfire.

Consider what’s befallen the rest of America’s family farmers over the last 50 years. Now imagine that same scenario hitting the nation’s legacy cannabis growers all at once.


(Gillian Levine for Leafly)

‘They want our genetics’
Dan Pomerantz, founder and CEO of California-based Rebel Grown—which cultivates outdoor sustainable cannabis and seeds—urged the Meadowlands round table to recognize that the real threat facing cannabis is coming directly from the so-called Big Four agricultural and seed corporations (Bayer-Monsanto, DowDuPont, ChemChina-Syngenta, and BASF):

“All of the biggest agricultural companies in the world want our genetics. Those people aren’t coming into our industry now, they’ve been doing it for a decade, and they’ve been doing it pretty much under the radar. So who’s paying for this forward-thinking technology to be applied to cannabis genetics?”

At stake, Pomerantz stressed, is the fate of not just cannabis growers, but of the plant itself.
Form a rebel alliance?
Dale Hunt is a plant scientist and an attorney who specializes in both cannabis and patents.

He created and maintains MJPatentsWeekly, a website that catalogs cannabis-related patents and patent applications from the US and Canada. He’s so invested in the space that his San Diego business is called Plant & Planet Law Firm.

Hunt understands how deeply the Phylos episode cut the cannabis community. And yet, at the Meadowlands roundtable, he characterized Phylos founder Mowgli Holmes as nothing more than an errand boy sent to collect a bill.

To prepare for the much bigger battles to come, Hunt said the traditional cannabis industry needs to form a massive alliance capable of pooling enough resources to scare off overly broad patent enforcement efforts or to fight them tooth-and-nail in court.

Such an alliance, he added, should amass enough actionable patents of its own to make Big Ag think twice about starting a war that could severely damage both parties.

Yes, and register with the feds
And so, irony of ironies, Hunt says the cannabis community’s best bet for protection now comes from the federal government in the form of the U.S. Patent and Trademark Office:

“Some of my favorite cannabis breeders are the ones who did it in the 1970s and 80s,” he says, “and back then you absolutely knew that you couldn’t trust the government. So the last thing many of them want to do now is trust the government. But guess what, that’s who grants intellectual property protection.”

Hunt laid out his strategy of “mutually assured destruction” in an essay published last summer by the Future Cannabis Project. To paraphrase Ben Franklin, Hunt’s challenge to the cannabis community is that they must all hang together, or they will surely hang separately.

The only alternative to putting up a united front against the threat of corporate cannabis patents, he argues, is to simply give up and let cannabis go the way of corn and soybeans. Hunt wrote:

Big Ag [will] force farmers to stop growing their own plants and start growing Big Ag’s patented GMO plants or eventually go out of business. While Big Ag can’t directly make you stop growing your own plants, they can make it impossible for you to compete with the farmers who embrace their system of patented seeds and related Big-Ag products to produce maximum-efficiency yields. The whole program is designed to drive you out of business if you don’t go along. And it will do exactly that.

Buried treasure in Humboldt County
Toward the end of the Meadowlands roundtable, a second-generation grower from Humboldt County recalled how throughout prohibition, his family kept detailed records documenting their farm’s tiny in-house breeding program, so as to choose the right plants to propagate year after year.

To protect his family's cannabis genetic IP, one farmer dug a hole and buried it like hidden treasure.
They filled notebooks with this data, even though it could potentially be used as evidence against them in a criminal trial, simply because they found the information so fascinating and invaluable.

To protect themselves, they buried those notebooks in a hiding spot 15 miles away.

Today, there’s no hiding spot deep enough to protect such data. It’s all going to get bought out, sold, patented, and locked up on a corporate computer server in some office park far away from the verdant soil of Humboldt County.

But then again, the federal government spent billions of dollars over a hundred years trying to stop cannabis growers, and failed. So maybe Big Ag shouldn’t count out the old-school farmers and breeders just yet.
Hi @momofthegoons - yes, I have been trying to keep up with the Phylos story and I did also see....and was ready to post....this very good series of articles.

Mowgli Holmes - a total a-hole and I'm really surprised that one of the many farmers he scammed haven't beaten his ass into the ICU.

I tripped across them and their Galaxy genetics relationship site some time ago and my understanding was this data was being collected to go to the public domain and prevent future patenting. Oh well....they lied.

I applaud any effort to get as much MJ genetics into the public domain as possible.

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