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This is the first hemp strain to be awarded a US patent

September 13, 2019
charlotte's web hemp strain header image
In this 2014 photo, Matt Figi hugs and tickles his once severely ill 7-year-old daughter, Charlotte, as they walk together inside a greenhouse for a special strain of medical cannabis known as Charlotte's Web, which was named after the girl early in her epilepsy treatment. (Brennan Linsley/AP)
As the high-CBD strain that won over skeptics and helped change the national conversation around medical marijuana, Charlotte’s Web may be one of the most famous cannabis strains in the world.

Now the strain’s creators have another claim to fame: They hold the first US patent for a cultivar of hemp.

Patent documents describe CW2A as a hardy plant, resistant to cold and capable of producing up to 6.24%CBD and only 0.27% THC.

The company behind the famed strain, Charlotte’s Web (CWB) Holdings, operated by Colorado’s famous Stanley brothers, has secured what appears to be America’s first-ever patent for a hemp plant, previously unreported US Patent and Trademark Office filings show.

With CEO Joel Stanley as the listed inventor, Denver-based CWB Holdings, Inc., which went public last year, received a plant patent for a “a new and distinct hemp cultivar designated as ‘CW2A’” on July 2, 2019, according to filings. Patent documents describe CW2A as a hardy plant, resistant to cold and capable of producing up to 6.24%CBD and only 0.27% THC.

That’s below the 0.3% THC threshold that distinguishes “hemp” from the rest of cannabis under current federal law.

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That designation means CW2A is legal to grow under the terms of the 2018 farm bill, signed into law by President Trump this past December. The strain seems an ideal source for hemp-derived CBD products that in recent years have appeared on merchants’ shelves across the country.

Representatives from CWB Holdings—the parent company for the Charlotte’s Web line of CBD products currently available in all 50 states—did not respond to several emails and telephone messages from Leafly News seeking comment over the past week.

But intellectual property attorneys, plant experts, and cannabis-industry marketing professionals interviewed for this article agreed that patent is a landmark move that could signal the intent for CWB Holdings, which went public last year, to seize a commanding share of the country’s burgeoning CBD market.

Despite CBD’s enormous footprint among entrepreneurs, investors, and the buying public, what the CBD world has lacked is a consistent, consumer-trusted brand that’s both familiar and available across the country. For the first to claim that mantle, the spoils could be enormous.

CBD products are available in upscale boutiques, unscrupulous bodegas, on Amazon, and everywhere in between. Americans may have spent as much as $2 billion on CBD products in 2018, according to a February analysis from investment bank Cowen Inc. Estimates vary wildly, but the bank guesses that the American CBD market may grow to $16 billion by 2025.

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The patent issued to CWB Holdings is a plant patent, not a broader utility patent, and is thus good only for legal protection against a competitor growing the same cultivar from clone. Despite its narrow nature, it’s groundbreaking in that it’s the first and only plant patent for a hemp cultivar issued in the United States.

Now that the Stanleys have both a recognizable, and trademarked name as well as a patented product backing their brand, they appear better poised than most to climb to the top of the CBD world.

“It’s huge. It’s something tangible,” said Avis Bulbulyan, CEO of Los Angeles-based cannabis business development firm SIVA Enterprises and a member of the California Bureau of Cannabis Control’s Cannabis Advisory Committee, which advises regulators overseeing the country’s single biggest marijuana market.

Though the market is still only a few years young, “the hemp space is ridiculously saturated,” Bulbulyan said. “A lot of brands out there have catchy logos and catchy names, but the product inside is generic. There’s nothing proprietary about it.” With a patent, however, there is.

GWB’s claim to fame

The Charlotte in “Charlotte’s Web” is Charlotte Figi. Now 12 years old, Figi has Dravet syndrome, a severe form of childhood epilepsy that, as her family discovered through trial and error, is treatable with CBD, one of the dozens of cannabinoids created by the cannabis plant.

Botanically, both hemp and marijuana are classified as the same species, Cannabis sativa. The distinction is merely legal: Hemp is cannabis with 0.3% THC or less. Anything with more THC is “marijuana” and thus outlawed under the federal Controlled Substances Act.

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Both Charlotte and CBD were catapulted to national attention in 2013 thanks in large part to Sanjay Gupta, the physician and CNN medical correspondent who featured them in his special episode, “Weed.”

Along for the ride were the Stanley brothers, seven Christian-raised Coloradans featuring pop-star good looks and projecting CW Network values—with an ever-so-slight outlaw twist owing to their roles running a cannabis business.

It was the Stanley brothers who developed the high-CBD strain of cannabis from which the oil that treated Charlotte’s seizures was derived—and who have since built on the resulting fame to grow what The New York Times in March called “one of the country’s leading CBD companies.”

CWB Holdings already claims to be the number one hemp-derived CBD brand by market share, with products sold in 8,000 retail locations and 675,000 pounds of hemp grown last year, per company figures.

The origins of the Stanley brothers’ Charlotte’s Web are murky at best—and more than a little contentious. The Stanleys’ version of the story is that they cross-bred cannabis with hemp plants to find something low-THC and high-CBD. But if you ask old-school CBD heads from the West Coast, you’ll hear that they jacked an existing CBD strain and called it their own. Whatever the source, there’s nothing uniquely special per se about Charlotte’s Web. Many other strains have lots of CBD and low THC.

The secret sauce behind the success of the Stanleys and Charlotte’s Web, industry observers say, is their keen branding and marketing acumen.

“The only thing that separates them from any other hemp company is the name of their strain,” said one observer, who asked not to be identified in order to speak freely without retaliation.

“In hemp farming, one of the challenges is to make sure your hemp doesn’t get hot. If it does, you’ve got a big, big problem on your hands.”
Dale Hunt, lawyer and botanist

The most typical source material for CBD products in America are plants originally bred for hemp seeds, hempseed oil, or hemp fiber. These yield about 3% CBD by dry weight, said Martin Lee, the California-based cofounder and director of Project CBD, one of the country’s earliest CBD advocacy groups.

“You have to use a lot of plants to get your oils,” Lee added of most hemp-derived CBD products. To acquire so much raw material, some CBD producers may purchase hemp varietals intended for fiber rather than oil. That’s not a problem if your end product is rope or hempcrete construction blocks—but cannabis happens to be excellent at sucking toxins from soil.  “That’s where you run into problems,” Lee added, “and that’s why so much of this stuff is not very good quality.”

Thus, a high-quality hemp plant producing twice as much CBD by dry weight—intended to be extracted into oil fit for human consumption, and hardy enough to be planted in a variety of environments—is a potential game-changer.

It seems evident the Stanley brothers have long had ambitious goals.

In 2017, the company was on the receiving end of a warning letter from the Food and Drug Administration, which informed Stanley Brothers Social Enterprises LLC, one of the family companies, that some of the claims made in marketing CW Hemp products under the Charlotte’s Web brand were illegal.

It’s not clear what came of the letter. The FDA did not respond to a request for comment from Leafly News on Wednesday.

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CWB went public on the Canadian exchange last year, drawing investment from major bank Barclays and others. In the months leading up to the IPO, the Stanleys hired a former Coca-Cola marketing executive to join their management team.

“The moment the 2018 Farm Bill passed, I knew it was the moment to join Charlotte’s Web,” Eugenio Mendez, Charlotte’s Web’s now–chief growth officer, told the New York Times for a Stanley brothers profile published earlier this year.

The Stanleys may be the beneficiaries of good timing. In May 2018, months before the farm bill was signed, records show, the company filed for its CW2A patent.

Later that summer, in the months before the United Kingdom legalized medical cannabis (albeit under unworkable restrictions), Leafly News encountered Josh Stanley at the UK Parliament in London, at an event organized by the United Patients Alliance, the UK’s best-established patient advocacy group.

At that time, the Stanleys were exploring licensing their products for the European market, Josh Stanley said.

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More patent filings could come to light soon. Utility patents, which cover seeds as well as complex chemical compositions, are not publicly available until 18 months after their filing date. If the company filed documents for both types of patents at the same time, that information wouldn’t yet be public.

“It’s quite possible they applied for a utility patent as well,” said Dale Hunt, a San Diego–based attorney and botanist who holds a PhD in biology.

“Since people think of hemp farming as a seed-based farming strategy, [plant patents aren’t] the best fit,” Hunt said. “But maybe if you want your genetics to be always exactly the same, then it’s worth going through the cloning process.”

If the Stanley brothers’ description of CW2A is correct, the plant “could make it potentially a lot easier to farm,” Hunt added. “In hemp farming, one of the challenges is to make sure your hemp doesn’t get hot [that is, above the 0.3% THC threshold]. If it does, you’ve got a big, big problem on your hands.”

“I’m just guessing,” he continued, “but that [stability] might be what makes this plant valuable.”

The power of a patent

Patent filings represent a controversial if poorly understood aspect of the cannabis industry.

Other companies have successfully applied for and received cannabis patents—but, except in rare circumstances, a company can’t use a patent to prevent a competitor from entering or occupying a segment of the market.

What a patented product can do is take over a market—so long as the buying public recognizes the patented item as the superior product and buys accordingly.

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In an interview, patent attorney Andrew Merickel, who has a doctorate in neuroscience, compared the situation to a fruit company that’s developed a particularly good tangerine—one that’s environmentally friendly and resistant to pests but also peels easily, looks good on a produce shelf, and tastes delicious.

There’s nothing stopping other fruit companies from developing their own very good tangerine. But in the meantime, the original company’s patented tangerine may be good enough to seize enough of the market to shut out or scare away any competitors.

“That’s the value” of a patent, Merickel said. “It’s not preventing other people from developing their own strain that might have similar characteristics; it’s being able to protect this strain that you’ve developed with the characteristics you want that has an advantage in the marketplace.”

“They can’t get a patent that would make it so your own existing plant technology infringes, but they can get patented technology that makes it so you can’t compete with them unless you adopt their technology,” Hunt added.

A patent like this “is huge for branding purposes and huge for marketing purposes,” said SIVA’s Bulbuyan. “The implications of it are greater than the patent itself.”

“Companies are now going to look at this as a case study, and ask themselves, ‘How can we duplicate it? How can we take this to the next level?’” he said. As for the Stanleys, “I guarantee they have something else up their sleeves beyond this.”

Chris Roberts's Bio Image

Chris Roberts

Based in New York City, Chris Roberts has been writing about cannabis since spending a few months in Humboldt County in 2009. His work has been published in SF Weekly, Cannabis Now, The Guardian, High Times, and San Francisco Magazine, among others.

View Chris Roberts's articles

  • Jesus

    Sorry …….
    Stolen Genetics
    IT IS FINOLA FROM CANADA!
    What liars!
    Mericans are the problem!

    • Franck Machy

      No, Finola from Finland.

    • David D

      I’m an American and I had nothing to do with this sir.

  • Jesus

    Stolen Genetics
    It is Finola from Canada

    • Thomas Lee DuDash

      Hemp that has grown wild in the midwest (Central Illinois) for years tests the same.

  • Russell Gibson

    This is not good news. If they start awarding patents to particular strains they can set the prices however they want andq have legal relief if any strain is close to theirs. This will stop people from being able to grow these strains at home and only the wealthy will have access.

    The American public is tired of this bs. It’s time for the government to remove themselves from cannabis outside of the fda approving products.

    I live in a legal medical state and cannot afford to buy medicine at the dispensary. It’s almost $500 an ounce here after all their taxes and fees.

    • David D

      before long, strains like this that are patented and GMO will be the only FDA approved strain, then add a $40k a year price tag on it and have to get it through prescription.

      They have always tried to demand we go through 20 different middlemen to get basic healthcare when this can be grown in our own back yards.

      • YearofAction

        When the Constitution was ratified by the states in 1787, and when the Bill of Rights were ratified by the states in 1791, and when the Civil War Amendments were ratified by the states after 1865, cannabis was a versatile, valuable, renewable natural resource that was legal to grow and use. “Hemp” referred to cannabis fibers.

        Those amendments intended for legal cannabis use to be controlled at the state level for people and unabridged for citizens, not prohibited from the people by the feds, nor controlled by corporations. The overreach of federal cannabis prohibition under the guise of misunderstanding the scope of federal marijuana prohibition, first began in 1937.

        The Marihuana Tax Act of 1937 introduced the original federal definition of marijuana. It was so malformed that its meaning had to be interpreted. The agency charged with enforcing marijuana prohibition then literally misconstrued its meaning to also prohibit cannabis. “Marijuana” actually referred to a particular use of cannabis.

        Marijuana prohibition does not require cannabis prohibition. The definition just needs to be reconstructed by Congress, to carefully deschedule cannabis while retaining marijuana prohibition. We can tell them how to reconstruct it, so people can legally grow cannabis in their back yards.

        The original malformed 1937 federal definition of marijuana was subtly malformed in 1970, and severely malformed in 2018. However, each of those definitions contain these three deficiencies, which prevent them from being “necessary and proper” laws:

        1. Instead of using the anglicized homonym “marijuana”, they use the racist term “marihuana” to imbue racism into the law. The racism misdirected the enforcement of marijuana prohibition, and dishonored the Constitution.

        2. Instead of clearly describing how marijuana is actually derived from cannabis, the actual meaning of marijuana is adumbrated by this riddle that has persistently existed within the circumlocutory text of those definitions: Marijuana is what thing that is “all parts of the plant Cannabis sativa L.”, and simultaneously “does not include the mature stalks of such plant”? The embedded adumbration facilitated the misconstruction, and dishonored the Constitution.

        3. Instead of explicitly including the prohibitions of specific uses of cannabis with the clear description of marijuana, the overreaching prohibition of cannabis plants is conflated with the prohibition of marijuana. The legitimate federal prohibitions that control the undesired proliferation of marijuana can be derived from the 2nd, 9th, 10th, and 14th Amendments.

        Each of these deficiencies can be removed by combining the corrective phrases altogether in a reconstructed definition having the straightforward, necessary and proper format that upholds the Constitution. This will carefully deschedule cannabis while retaining the Schedule 1 status of marijuana itself, for separate consideration of its adulterated medical value.

        If more people contacted their members of Congress about simply reconstructing the malformed definition of marijuana with these points in mind, then Congress could define it like this.

        The Reconstructed Definition:

        The term “marijuana” means all parts of the smoke produced by the combustion of the plant Cannabis sativa L., which is, as are the viable seeds of such plant, prohibited to be grown by or sold by any publicly traded corporation or subsidiary company, and such smoke is prohibited to be inhaled by any child or by any person bearing any firearm, as is the intake of any part or any product of such plant containing more than 0.3% THC by weight unless prescribed to such child by an authorized medical practitioner.

        Compare to these definitions:

        1. The Original malformed definition from the Marihuana Tax Act of 1937:

        (b) The term “marihuana” means all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds, or resin- but shall not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.

        2. The Scheduled malformed definition from the Controlled Substances Act of 1970:

        (16) The term “marihuana” means all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin. Such term does not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.

        3. The Further malformed definition from the Farm Bill of 2018:

        (16)(A) Subject to subparagraph (B), the term “marihuana” means all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin.
        (B) The term “marihuana” does not include (i) hemp, as defined in section 297A of the Agricultural Marketing Act of 1946; or (ii) the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.

        4. The definition of hemp from the Farm Bill of 2018:

        Sec. 297A. (1) HEMP. The term ‘hemp’ means the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.

    • Leslie Newman

      Russell, awarding patents is not going to change the fact that you cannot afford your medicine. Taxes and fees are so the govt can make money. A patent has nothing to do with taxes and fees. Quite honestly patents don’t hold much power. I say this as the daughter of a man who spent his entire life designing products. So much so that he named his boat “patent pending”. If cannot afford your medicine, I doubt you’d want to invest the time or money required to grow high quality cannibis. Most people haven’t the means to grow pot. It’s expensive!

  • Thomas Lee DuDash

    This would be great if Trump gets on board with legalization. I understand his reluctance, everyone’s opinion has some basis with them personally. I know that Trump has never had one drink of alcohol because he watched his beloved brother drink himself to death at age 42. He has a young son who he has a natural parenting response when this issue comes up. Hopefully he’ll see the light on this issue and be confident that he can teach discipline to his son.

  • William Molloy

    I don’t care if they patent these plants or not. All I care about is how much is it going to cost me an acre for seed and can I still make a living at it. I don’t want a big mega farm I just got a few acres I want to make a little living and be happy.