proposal

I'm neither journalist nor lawyer nor public policy scholar but I do have a prime lens on my camera and I drink a prosumer gin. So that's something.

I'm a gadget blogger. I have never used marijuana and I don't hold any patents. Now that I have established my bona fides, let me say that our present intellectual property dysfunction has been on my mind for some time. I think I have figured out a way that our system could actually do someone some good and invite reform simultaneously.

Marijuana initiatives will be appearing down ballot on a lot of rickety folding tables in just over two weeks' time. The Commerce Clause (Santa's evil alter ego) and Preemption make these present initiatives irrelevant. The next ones need not be and the answer might be patents and exhaustion doctrine.

No state can avoid the federal Controlled Substances Act that appears to preempt any effort to legalize marijuana. Neither California nor South Dakota could alter their state markets for existing cultivars without an almost immediate effect on interstate markets far beyond these new, local markets. If Maine or Oklahoma had the power to project their laws beyond their borders, they might be able to define the interstate market as null and limit the applicability of the CSA.

Here's my quick and easy path to marijuana legalization and the Supreme Court:

0. License the Monsanto Roundup-Ready patents.

1. Genetically engineer a visually distinctive, Roundup-Ready strain of marijuana.

2. Patent the strain.

3. Assign the patent to the state.

4. The state makes a limited patent license grant to growers, distributors, and buyers in exchange for royalty payments. The terms of this license prohibit use or possession outside the state and impose every manner of post-sale limitation available. The state has every tool necessary to eliminate any effect on the inter-state market.

5. The state and Monsanto vigorously enforce their respective patent rights.

6. The state and Monsanto profit!

One of the apparent weaknesses of this plan is its dependence on post-sale limitations but we live in exciting times. The Supreme Court announced earlier this month that they would hear the appeal of Bowman v. Monsanto (thanks kanebiolaw). If the Court finds that a sale of a self-propagating entity need not exhaust patent rights, then a state could be off to the races.

Monsanto, you know where to send the check. I'm still at the same address.

States, remember to thank ERCOT and its predecessor organizations for artfully dodging the Commerce Clause since 1935.

Feds, go do patent reform or you'll wind up on the wrong side of this absurd marijuana legalization scheme. The core dispute in Bowman v. Monsanto is not rooted in biology. It's rooted in self-reproducibility. The very idea that software patents not subject to exhaustion could become the law of the land is completely insane. Our current copyright and patent system shows that policymakers have been smoking something for a long time.