How Plant (and Mushroom) Patents Can Promote Public Access

By Dale Hunt, PhD, JD – Hunt IP Law

A hard question

Several years ago, I was a guest on a podcast about patenting new varieties (strains) of cannabis. The interviewer asked me why anyone should be OK with patenting cannabis strains, since patents restrict access to whatever is patented.

I’ll admit that I had to stop and think for a minute about that. It’s true that, for conventional pharmaceutical drugs, patents do drive up the cost and restrict access to the drug, until the patent expires and the generic forms of the drug are available.

But during this podcast interview, I realized I had a relevant story to tell about access and plant patents. I believe it applies directly to patenting new and special strains of mushrooms and any other plant medicines that are the product of breeding and selection.

A true story, many times over

I told a generic but very true story about a plant breeder who spent a decade breeding and selecting a special new plant variety. This is generic because there are examples of it across the spectrum of plant breeding. But for purposes of this example, I’ll put it in terms of a flower breeder named Christine.

Christine developed a new variety with bigger and more colorful flowers than anyone had seen. Everyone wanted it. There were people eager to cultivate this flower so it could reach markets all over the world.

Unlimited copies

The thing about plants (and mushrooms) is that, in many cases, a single cutting can be used to produce an unlimited number of copies. All the benefit to Christine, of a decade of work, could vanish quickly if unauthorized copies of her variety were propagated and sold by others.

Yes, that “steal and sell” approach could be seen as wide access. But in reality, without a patent to protect against an unlimited number of unauthorized copies being made, Christine would have no way of protecting her work unless she severely limited access to the plant. It would have to be grown in a limited number of places with expensive security measures, or she would just have to accept a quick erosion of her exclusive control of her work.

But, because the variety was protected by intellectual property, it could be licensed for cultivation to good farms in many parts of the world, making this beautiful flower—the product of Christine’s hard work—widely available.

Protecting your work and making it accessible

If breeders put a lot of effort into developing great mushroom strains but can’t ever release the mushrooms to others without losing the benefit of their work, the practical result is less access, not more. Yes, the patenting adds to the cost of the mushrooms, but when the patent is the subject of widespread licensing, cultivation and sales (i.e., broad public access) the patent cost becomes minimal and the patented product is often not significantly more expensive than alternatives.

Good medicine, widely available

I have worked with many plant breeders who, thanks to strong IP protection, are able to license their varieties for cultivation and production all over the world. I remember one of my clients said this: “If you want to scale up in agriculture, your choices are either to acquire land and hire people all over the world – a massive management headache – or to license others who already have the land and the people to grow your plants for you.” Good patent protection makes this possible. Widespread – even worldwide – access to good plants and plant medicines that are locally grown and distributed is a good goal. Patent strategies, properly executed, make this possible.

This is the fifth in a series of blog posts on patenting and psychedelics. Watch this space for additional posts on topics of interest in psychedelics and intellectual property. If you have specific requests or suggestions for topics to be covered, please send me an email: [email protected].

The opinions expressed here are the author’s own and do not necessarily reflect those of his professional colleagues or his clients. Nothing in this post should be construed as legal advice. Meaningful legal advice can only be provided by taking into consideration specific facts in view of the relevant law.

? 2025 – Hunt IP Law