 Hello, DefCon. How are you? Good, yes. All right, before I get started on any of these talks, I like to sort of, like, get to know my audience a little bit. Any lawyers in the room? Do we have any legal representatives? Okay. That makes my job easier and harder in some ways. Also, how many of you in here would describe yourself as a hacker? Yay! This is the most hackers I've ever been in one room with, besides for, like, being out there. That's great. Cool. Well, I'll get started. Today, my name is Beth Schecter, and we're going to talk about the Open Cannabis Project, which is a nonprofit that I'm running. To give you a little bit of an overview, we'll start out with some introductions and disclaimers. A little brief history of cannabis prohibition, although if you were just here for the previous presentation, there's a lot more information to learn, and I won't be going over all of it. We'll talk a little bit about the problematic land of cannabis patents, how open-source data can help solve some of those problems, what we're building, and then I'm really hoping to use a good chunk of this time for discussion with all of you. We have some questions about, you know, some ideas that we have moving forward, and we'd love to hear your thoughts. So, to get started, let me tell you a little bit about Open Cannabis Project, which we call OCP because Open Cannabis Project is a lot of words to say over and over again. It was founded back in 2015 by Dr. Mowgli Holmes, who is a geneticist at Phylos Bioscience, and Jeremy Plum, who is a renowned cultivator, grower, cannabis enthusiast, and if you're one of those people that if you ever get to him talking on cannabis science, you will feel like you are drinking from a fire hose. He's amazing. And their goal was to create a comprehensive archive of every existing cannabis cultivar, which is the word that we use for, you know, strain. Strain is something that's used for bacteria and cultivars, what we use in botany, and its attributes. So, it's chemical levels, it's, you know, maybe potentially it's morphology, that kind of thing. And the primary purpose is to block overbroad patents claiming ownership over previously existing strains, namely the ones that we have been growing forever. And as a bonus, and the thing that really makes me excited as someone who comes from the open data world, we can create a giant open data set of cannabis, chemical, and genetic data that can be used by anyone wishing to study the plant. And given the amount of things that we're learning about the plant, and the lack, and the abundance of misinformation that's out there when you go to a dispensary, this is something that would be really useful to, I think, everyone. So, a little bit about me. I, like I said, I'm the executive director. I came into, I'm really new to cannabis. I've been in the industry for about a year. I come from the world of open information and data and community education and design. I'm a bit of a nerd. I'm the kind of nerd that really likes making open source maps. And I liked it so much that I ended up accidentally starting another nonprofit called Map Time, which literally just got people together to learn about making maps using open source data sets. So, open street map data, that kind of thing. My other past jobs have included things like technical writer, curriculum writer, education and outreach manager. But you'll notice that lawyer and hacker are two things that are not on that list. So, these are important things to keep in mind for the rest of the presentation, because we're going to talk about law, but I am not a lawyer. And this is not legal advice. My lawyers tell me to say these things. These are my lawyers. They are really... And so, if you actually do want legal advice, I highly recommend you reach out to them. Dale Hunt is an IP lawyer and botanist out of San Diego. And John Mansfield is based out of Portland, Oregon where I am. And both of them... I'm sorry, Dale especially, if you ask him about anything related to plants and patents, he will give you such thorough explanations. And I feel like I've gotten like a little mini law degree even though, again, not a lawyer. So, before we get started, I want to also go over a little brief history of cannabis prohibition. Humans and cannabis have had an 8,000 year history. We have been having some sort of relationship with this plant using it either as a fiber or some form of medicine. And we came to what's now the U.S. a really long time ago along with the colonists who came this way. Actually, no, even before that. But it definitely made its way into the colonial United States. And in the 1600s, there are records of people growing hemp. In the late 1890s, cannabis was used as a tincture, as a pharmaceutical. You could even get yourself some hashish candy, that kind of thing. I've seen some anecdotal evidence. Actually, we talked about it in one of the previous presentations today that cannabis was also considered to be a treatment for opium addiction a long time ago. And then, again, now some edits are needed on sort of the previous part now that I've learned a little bit more about Mr. Anslinger, who has taken a lot of the credit for the beginning of cannabis prohibition. Maybe it sounds like maybe he wasn't the one fully behind it. But suffice to say, a series of events in the 1930s brought about cannabis prohibition and it got scheduled along with heroin as a schedule for one narcotic. And since then, we've seen just like tons of prohibition that's anti cannabis and from reefer madness all the way to Nancy Reagan and her wonderful Just Say No campaign. And now, you know, thanks to organizations like normal, we have this sort of like mixture of cannabis regulation, speckledness in the United States, all still sort of still all of it stilted by this schedule one classification. And then there's Jeff Sessions just, you know, making making a sad making a sad face about everything I know. Oh man, he's got some healing to do and can probably use a lot more CBD. All right, so what's the deal with cannabis and patents? And to be fair, I came into this project not really knowing much about it at all. So I'm going to give you a little bit of a brief overview of how this works so that you can sort of follow along because it's not the most straightforward thing. So US intellectual property law has three main oops. Come back. I broke it. You guys have broke the presentation out. Did I turn it off? Is there a computer? There we go. Okay, great. I will stay away from the courts. All right, so US intellectual property law has three primary categories. There's patents, which are limited duration property rights related to an invention and exchange for public disclosure of that invention, which becomes useful once that patent expires. There's a trademark, which covers words and phrases basically, or logos, anything that would be used to identify something in trade or commerce. And then there's copyright, which protects original works of authorship, including musical and artistic work, software and architecture. A lot of what we're talking about later in the presentation about open source principles, a lot of this comes more from copyright law, which is part of why it's interesting in applying to patents, but we'll talk about that later. But in general, these are the three sort of areas of intellectual property law, and we are primarily as an organization focusing on patents for cannabis. Patents for cannabis fall under IP protection that are available for plants in the United States. And there are four main ways right now that our plants are protectable under intellectual property law. One is through the Plant Patent Act, also of 1930. A lot of stuff apparently happened in the 1930s. And it protects asexually produced plant varieties, which are not tubers. Tubers like potatoes, since they do reproduce asexually, they're not covered under this act. They are covered, however, under the Plant Variety Protection Act of 1970, which protects asexually reproduced by seed or tuber propagated plant varieties except for fungi or bacteria. Basically the difference, well, a couple differences between the Plant Patent Act and the PVPA. The Plant Patent Act is, really applies to patents for cannabis. The Plant Variety Protection Act is another form of federal registration that does grant you intellectual property protection, but it's not exactly a patent. The Patent Act covers basically anything that can be patented under U.S. law. And there's a type of patent called Utility Patents, which are really what you think of when you typically think of a patent for anything. And those can be granted for plants, seeds, plant varieties, plant parts, processes, plant genes, hybrids. When you think about, for example, when I say plants and patents, how many of you think of Monsanto, like immediately? Right. Okay, so this is most people's primer sort of into this weird world. So, you know, a Monsanto patent is typically a utility patent and it's something that can be much broader than, say, a plant patent or something under the Plant Variety Protection Act. You can also use trade secrets and licensing as a way to grant intellectual property protection for your plants. Under trade secrets, though, because you haven't disclosed things publicly, if somebody else grows something really similar to you, just because you have protected that invention and kept it out of the public domain, somebody else can still get a patent for it. So, it's kind of weird. You'd think that, like, protecting your invention and keeping, or, like, keeping your invention really secret would keep someone else from patenting it, but that's actually not true. So, when it comes to cannabis, all of these things still apply with the exception of the Plant Variety Protection Act, which is kind of a bummer. And that is true because this program is managed by the USDA and not the PTO, which is the Patent and Trademark Office. And the PVPA, they're, I'm sorry, they're seed registries, which is basically to get a Plant Variety Protection, you submit a bunch of seeds and the seeds get put into, basically, a seed holding facility and the seed holding facilities will not take cannabis seeds because it is a Schedule I drug. So, that kind of eliminates that as the opportunity for it. In other countries, it's also worth mentioning the Plant Variety Protection Act is also known as Plant Breeders Rights. So, if you've heard people talk about Plant Breeders Rights, they're also talking about the Plant Variety Protection Act. These courts, these courts, the courts don't like each other. Okay. Closer? Okay. So, you know, I've talked about a couple of different types of patents here. There's plant patents and there are utility patents. And the really, the main difference in these patents has to do with their scope. For plant patents, which are the pieces that are inside of the little blue dots, those really only cover a clone of a plant and its clones. So, it is just, it's a plant as it's described through its phenotype expression. And then basically that plant and its clones are the only thing covered by the patent. That's it. When it comes to utility patents and genetic material in general, but then also in this case cannabis, what can be covered are use genetics and chemistry, particularly if they are novel compounds or something that, you know, somebody has invented. They can also cover clones of a plant. They can cover the cultivation process which, you know, inherently kind of includes the environment that something is being grown in, as well as the phenotype expressions, as well as, you know, new things that come from that plant. So, new flowers made from it extracts any kind of materials and potentially, you know, new plants that are then bred with that plants. And similarly, in the same way that like if you were to invent a really like state of the art mop and you didn't want anyone else to copy your state of the art mop under your patent, it also can include plants with similar attributes. And so, yeah, that's basically how that works. To get for something to be patented, just generally speaking, it has to be patentable subject matter, which means is it a process, a machine, an article of manufacturer or composition of matter. And while that might sound like everything, it doesn't cover things like works of art which are covered under copyright or things like logos which are covered under trademarks. It has to be new. Has this patent been filed with one year of the invention entering the public domain, which we'll talk about what public domain is in the subject or within the context of patents in a second. Does it, is it useful with plants? The utility is, you know, a pretty minor, you know, minimal requirement but it has to have some kind of utility. And is it non-obvious? Is it a non-obvious improvement to things that already exist in the public domain? And kind of the way that my, one of the examples that's commonly used, just sort of like summarize some of these ideas is the idea of a five-legged chair. A five-legged chair is not a useful improvement to the four-legged chair, which we all know and love very well. It works just fine. And that extra leg is not going to add anything to the patented thing. And so the path of a patent, the path that any patent takes, including cannabis, is that it starts with a patent application. An inventor, often with legal assistance, submits an application. There has to be a really incredible amount of description that goes into it. There are specific claims. In the case of utility patents, there's also an enablement requirement, which means that there needs to be some sort of plant matter that is submitted along with the patent to the patent office. It then goes to a USPTO patent examiner whose job is basically to look, well, part of the job is to want to make sure that the description is good. And then also to make sure that it's not that the patent doesn't cover things that already exist. They want to make sure the patent office really wants, ideally they want for things to come through the patent office and get patents for them to be really new. And so they look for evidence of things that are similar out in the world. They'll also look at for things like market entry date or dates of public disclosure or any other information that they can get about when something entered the public domain. It then goes through a series of rejections and revisions and eventually you can get to patent acceptance. And, you know, just for general record, so before something is in the public domain, it may be covered by trade secret laws. Once it enters the public domain, there's a one-year window during which you can actually apply for your patent. And then once you get your patent, you have 20 years of patent protection. So that means, and patent protection is basically an exclusive right to use that thing or to sell that thing within any given market. So here's an example of a utility patent on a cannabis plant. In fact, it is the very first utility patent that was put out on a cannabis plant. And its claim one covers a hybrid cannabis plant or a sexual clone of that plant that has a terpene profile that includes a series of specific terpenes. It has at least, I think this is at least a CBD content that's at least 3% CBD and then a series of terpenes that's at least 1% by weight. I hate this thing. It's killing me. It really doesn't like my computer at all. I know. And a series of terpenes of which mercy is not the most dominant terpene. And from there it talks about also different combinations on top of that initial claim which include not just this set of plants, but plants that might be similar in nature. This is an example of a plant patent on a cannabis plant which is actually the first and only plant patent on a cannabis plant that exists. It's issued to someone with a, I think it's Stephen Cubby, that's right. And this is for a cannabis plant called Ecuadorian sativa. And Ecuadorian sativa is apparently a variety of cannabis that has like 45% limonene. And limonene is one terpene and that is just a lot of limonene. There are also utility patents that you can get on uses of a cannabinoid. There's a famous patent number 6630507 which is one that has been issued to the National Institutes of Health on CBD for use as a neuro-protectant and antioxidant. There's also one that's been in the news recently, number nine, by the way, how fun is it to talk about patents? It's so fun. It's the funnest. It's the best. So 9730911 which is on cannabis extracts and method of preparing and using the same. Its claim one is a liquid cannabinoid formulation wherein at least 95% of the total cannabinoids is tetrohydrol, how do you say that? Tetrohydro cannabinoid or THCA. And this one is actually our first ever case of patent litigation, which is happening in Colorado right now. A company called Vucan is suing pure hemp collective for stealing their formulation. The jury is out on how that one will go down. But how this does end up going down will say a lot to us about the enforceability of cannabis and cannabinoid-based patents. So part of the issue is that plants plus the cap patent system plus capitalism is you got to have big money to play. Filing patents can cost many, many thousands of dollars, if not more. Big money also tends to lead towards corporatization, so bigger, faster and cheaper suddenly enters the marketplace, which makes it really difficult for small businesses, in this case farmers, to make a living in that kind of market. So they often fold or struggle or just get eaten in a similar way to Silicon Valley works. And we're seeing this right now a little bit in Canada, and I'm not saying that this is necessarily a bad thing in all cases, but you know, a lot of these larger companies are buying up smaller farms and thereby buying up all of their IP. And in some ways it's helpful to the small farms because it can help them, you know, to better navigate some of the regulatory frameworks that are set forth in Canada, but at the same time, it's also them basically giving up their business to a larger entity and then like losing some control over what they're doing. And then last but not least, genetic diversity is often diminished or lost. And this is for evidence of this, you can look to the story of corn. Corn has about 20,000 varieties registered with the U.S. Department of Agriculture and currently there are about six genetic lines that are on the market. And that's it. And that is the combination of patents and you know, just big money and capitalism and bigger, better, faster taking out smaller businesses in general, making that happen. So, you know, patents aren't always a problem, but in this case they are when they won either remove something from the public domain that was previously inside of it, which when they're overbroad or when they are issued without sufficient prior art. And you know, unfortunately, the patent office has a documented history when something is new on the market of issuing patents on things without sufficient prior art. This actually happened in early software and because for there was a long time when software was not considered to be patentable and then a change, a legislative change happened in a court case, I can't remember what year, and after that suddenly, oh, you know, software can be something that is covered under patent law, but there wasn't enough prior art to actually determine like what is something that is, you know, that had existed or not and so a lot of really bull crap lawsuits ensued. So, and to give you an idea about what evidence of prior art is, it's documentation that claims in a patent application have existed before in the public domain and this can be anything that an examiner can help them to dig deeper regardless of date for cannabis, by the way, lab data works really great for this, which we'll talk about in a second. So, you know, what's happening with cannabis in this process to some degree is, you know, where's the prior art? We've had 80 years of prohibition in this country that have thwarted, you know, all kinds of research and development. We don't have prior art for cannabis in the same way that we do for other agricultural crops. So, you know, the cannabis plant doesn't really even have a voice in this process. What if I don't have a lot of money? What if I'm a, you know, a farmer who really wants to protect my intellectual property, but I don't have thousands of dollars to put into a plant patent or into a utility patent and also, you know, maybe I want IP protection without having to deal with patenting, you know, like maybe I don't really like the system at all. Maybe I want to do something a little bit different. So we really, really, really need an alternative. And prohibition really does not make this easy at all. I sometimes talk about talking about, talking about patents is like describing like the worst board game you've ever played in your entire life. It's like nobody wants to play this board game. You're like, well, you have to find more evidence of prior art and then it has to be dated, but like, you know, anyway, and then when it comes to cannabis, it's like, it has to be public, but also hidden in an anonymous. It's super fun. So, you know, but this is really difficult, but I am not one to shy away from a challenge. So we're going to do it anyway. So I'm going to give you a little bit of an overview of what we're working on. So the first thing that we're doing is we are doing as much as as much as possible. We are collecting data from labs. When I inherited this project in November of last year, we were only collecting genetic data, but it turns out that when you look at any kind of patent application, more of what you see is cannabinoid and terpene data. So we are doing our best to collect as much data about cannabinoid and terpene stuff as we can. And while getting data from labs is great and accurate and anonymous and every or potentially anonymous I'm making it anonymous then and that's great. It kind of takes away from the ability for me as a grower to be able to say hey, I have this I have this cultivar that I've created and I want to give it to the public domain. So what we're building right now is a system that allows for public domain declarations. This is an alternative system to patenting that will allow people to get their information into the public domain and then along with this we're also putting together a license an open source license for cannabis. People have talked about creating something like this for a really long time and we are actually going to do it and hopefully if anyone here is interested who here is interested in open source who loves open source technology. Yay! Okay, cool. Awesome. I actually would really love to have y'all as a part of this conversation because I think that one thing that the cannabis industry cannabis industry knows a lot about really good weed especially the Pacific Northwest. Thank you Pacific Northwest. Open source licensing not so much and so there is a lot of work to do to talk about you know how we've done open source licensing and what's worked and not worked in software and then talk about how that could potentially work for for cannabis as well. Our overall system this is what we're building. So far we've got a very basic prototype of our of our database but I'm hoping to we're currently rebuilding that as well and actually if any we have any hackers in the room who want to get their hands dirty destroying and rebuilding my system let me know I don't have money to offer you but I mean you can work on organizing a bunch of cannabis data. Doesn't that sound like fun? I think so. So but we're building one of the things I've discovered is that some ports in HTML that makes it a really ample opportunity for me to do individual scrapers that will then allow me to collate a whole bunch of data about a single plant all in once all at once feed it into the system and then through it create a really awesome open data set of cannabis data that people can use and for obvious reasons this has to be like the most secure thing ever I have so much envy for Canada right now I like I'm if I could convince my partner to move with me to Toronto like tomorrow I we do it but he we're not leaving Oregon which is also fine but anyway so this has to be a really secure system and so that's what we're working on we're also like I mentioned working on an open source license and we're it's in the works it's not quite in a good enough spot where I can share it with y'all though is kind of hoping for that but we're working with influence from creative commons the open source seed initiative the odc open database license and I just learned from Kevin Chen I don't know if he's in the room about the open material transfer agreement so cool about you know transferring biological material in between universities in an open way that's about the raddest thing I've ever heard so I'm going to look to that yeah and as we're building this you know we're a non-profit we're primarily run on volunteers you know we have some questions and I'd love to open it up to y'all to maybe help me get some answers what are the best security services for anonymity for anonymity for verifiable anonymity within this context is blockchain the only option or is there like some other awesome thing that I haven't heard of yet like gold chain or something I don't know also how enforceable would an open source license be I think that people have a lot of questions about that and my answer right now is we won't know until we try it and if we never try we'll never know and also should we move to Canada no really so yeah well what questions do you have I imagine that you have some questions for us too so let's discuss I'll open it up to the floor yes so that's a great question two of our board members are based out of northern California which is a big market for a lot of those folks and we're also increasingly trying to get the word out and in magazines like advanced nutrients and other and other like publications that get the word out to growers I've also had I've had a lot of luck getting on the radio in Mendocino county and that kind of thing and through some of those outlets we're beginning to reach out to growers but primarily on the west coast I'm definitely open to advice or ideas on getting to people nationally I'm having some fun conversations with some of the larger publications out there right now so my fingers are crossed with that too man that's a good question I mean I think that the worst case scenario in some ways it's bigger than just patents like patents are one piece of the issue and a bigger piece of it that I really see happening is a combination of big pharma and larger businesses really getting a strong hold over most of not only just what's being grown but what's what's able to be sold right like what's happening on in Oregon right now is really really really really apocalyptic to some degree and I mean we all there's there's up moments we're definitely in a down moment and part of the reason that we're in a down moment is because you know Oregon in the black market export along with along with California exported a ton and export so I should say a ton of cannabis you know throughout the country and throughout the world within the legal market the same growers who are like yeah you know what we want to do this right we want to do this legally are now not able to make make a living because there's like this big question of what we're what we can do with all of it and so I think that and to some degree an even bigger problem than the patents that I'm seeing is this is the sort of separation between the legal cannabis and the illegal cannabis market as long as we're still putting people in jail prohibition isn't over as long as we're still criminalizing people for using for growing the plant the war isn't over and so to some degree I see that as more of the worst case scenario is that small farmers to make a living and to participate so they are then forced to compete on the black market and so then they're still condemned in the same way that they have been for 80 years fuck that noise so that's the worst case scenario thanks y'all what else patents cannabis yes well for Beth Shector not the executive director of the open cannabis project I basically want to shit on the front door of the White House and set it on fire oh it is great cool they know they're watching me anyway you're listening to me through my computer it doesn't fucking matter but I think that you know I but in all honesty so we were just lobbying and in D.C. a few weeks ago and the process there right now is just so much more incremental and I think that like I mean it true you know truly part of the challenge is like you know dealing with some people who have maybe older mindsets about some of this stuff and you know want to sort of keep the status quo and so with those folks you kind of have to like you know you kind of have to like pander to their interest you know like you have to talk to you know people who are Republican senators about like how crappy it is to be a woman walking through downtown any city in America with with a bag full of cash because I can't get a bank account oh and by the way didn't you want for me to pay my taxes anyway I as a legal operating business in the United States want to be able to write a check to my employees and then I want to be able to pay my taxes and I want to be able to do so with a check from a bank you know and I think that like those kinds of arguments are really catch the ear of people who believe in states rights and who believe in moving those kinds of freedoms forward ultimately though until we can get rid of schedule one which is like a whole different ballgame this drug scheduling is determined by you know the Department of Health and Human Services as well as well as you know the CSA and um those are not a those are not officials that we get to vote on there are people who are appointed by our you know by the executive branch you know a patent examiners for example um they are to some degree considered to have similar jobs as judges they are there to make a judgment on a case um and we don't necessarily get to vote on them so it's um it's it's a it's that's a really really really good question and it's I wish I had a I wish I had a better answer but you know the answer in politics typically is that you have to sort of like push these things forward slowly but I would really love to see just a a massive sea change and that I won't make threats of pooping on people's doorsteps yes so you mentioned that software also had a problem uh with regards to patenting and I remember uh I don't know if software was the main factor but definitely just the patent office probably feeling out of its wits um they started a program years back to uh to basically broke the public into helping them find yes prior heart do you think something like that could be um applicable to what you're doing like is there a way that you could harvest uh you know um different uh types of information yes about the cannabis from the from the from the public yes exactly and actually that's something that we already that's a great question we already do do um if you have any academic resources that you know of about cannabis that are in the public domain please send them my way we are creating um it's called our external data resources but the idea is that it becomes like a much larger index of prior art about cannabis so yes we're definitely looking to do that um we're also looking to get involved with a patent education technical training program so that we can talk to the patent office about you know cannabis cultivation and how it works um because you know the more that we learn about cannabis and genetics and I'd actually really love to hear um Dr. Lewis' thoughts on this um you know the more that we learn about these things the more that we learn that like you know you can have the same piece of genetics grown in a bunch of different places and it can produce wildly different results right in terms of like chemical expressions so you know but that isn't necessarily you know unless you're doing utility patent which you know might be a little too broad of patent potentially um then there's really not a great way to like sort of like fit with that um but in general I think that you know the they definitely do need more evidence of prior art um we've reached out to the US patent office about what we do and um yeah a lot of the examiners know now which is good but it took a lot of cold calling and finding people's numbers maybe they didn't want me to find their numbers but I found them yes say more about what you mean by like standards sure yeah and I think that your question touches and I'm going to do my best to answer it but it touches on a few different things right one is that you know with the in the case of Epidiolex um which I mean honestly the idea of having any kind of cannabinoid based medicine on the market is really actually for epilepsy is amazing and the fact that has been FDA approved here is incredible um I think that one of the things that's a challenge for me to wrap my head around is the lack of our ability in this country to do um clinical trials that would allow people um who are not potentially involved in um a big pharmaceutical company like GW Pharma who are able to potentially who are able to participate in those trials to to do the same it's really difficult if not impossible you like we can't get federal funding to do that kind of work in the United States um that work so the people who are able to you know make that kind of quality that you're talking about and to be able to say we have a product that you know really does this and does this well they have a lot of money behind it so um it would be great if we were able to have more research available to everyone to to to a lot of people in this country so that we can also participate in creating really high-quality products and then the other piece of it is and this is tricky I mean if you're going to be selling something to a consumer like you do want to have you you do want to have your product tested right you do want it to have gone through a lab you want for it to make sure that it's like free of pesticides that it doesn't have like some weird mold growing on it like you do have to have quality assurances for things before you put them on the market um and I think we're still figuring out like what those standards are um again ultimately I think that if we were able to lift the prohibition on this plant that some of those things would get figured out in a more logical way um and right now it really does benefit people with a lot more money than a lot of these farmers and small-scale producers have and so they just don't even have a fighting chance and that's why I'm mad yes more questions well if that's it we'll wrap up thank you everybody I've got cards and buttons and stuff