DNA Fingerprinting Strengthens Formal IP Protection

Patents are the major backbone of intellectual property protection in the United States. Regardless of individual opinions on the system, it's the standard.

Provisional patents can be utilized for cannabis cultivars; they grant 12 months of “patent pending” status. And they’re pretty cheap for those with micro-entity status ($65 per filing).

However, there are some caveats with a provisional patent.

While "patent pending" status may be a deterrent, it does not grant you any legal, protective rights or claims. It does not protect you from someone stealing or copying your work.

When those 12 months expire, you lose your priority date and “patent pending” status if you haven’t submitted a complete, non-provisional patent application.

One approach I’ve seen is to continually file provisional applications every year. You can always claim the “patent pending” status, but your priority date resets with every new application. And, if released publicly, your own product can potentially be used against you as prior art.

Irrespective of the filing strategy, paperwork such as patent applications without genomic data is still just a name on a label. 

Phenotype, which includes chemotype, changes with environment. Interestingly enough, a lot of metrics still rely on phenotypic traits. International regulatory bodies like the CPVO in Europe are beginning to supplement with DNA sequencing. That's a step in the right direction.

The genome (or genotype) is arguably the only static identity layer in plants. DNA fingerprinting does not replace formal IP protection; it provides the empirical evidence to aid enforcement of IP.