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Here's how to get your cannabis plants and products patented even though it’s illegal
The United States government is so big and so sprawling, it’s sometimes unable to avoid becoming a contradiction of itself. Federal health authorities still consider marijuana to be a Schedule 1 drug having “no currently accepted use and a high potential for abuse.”
Yet few Americans know that the United States government and its Department of Health and Human Services also have held a cannabis patent since 2003. In fact, the patent excitedly describes the health benefits of cannabinoids.
State-legal cannabis entrepreneurs are reasonably wary of any interaction with the federal government. Your federal corporate taxes are vastly higher than for other businesses in the United States. It’s difficult for cannabis to find relief in federal bankruptcy courts. Even obtaining federal trademark protections for your growing brand is a headache.
And, of course, you always run the risk of being arrested by federal drug enforcers.
Patent laws in the United States, however, do not require you to prove the product would be used lawfully. The intent of patents is to protect unique ideas and encourage innovation, not to judge the morality or public safety of drug use. They shield you from the theft of others.
Your patent could contribute to the nation’s collective knowledge of technology, medicine, agriculture, transportation, manufacturing, and more. You are eligible to protect your cannabis-related intellectual property just like any other American.
Here’s what you need to know.
More approvals than ever
It’s a reasonable assumption that the tide toward national cannabis legalization is irreversible. It’s just a question of when and how. The sooner cannabis entrepreneurs seek to protect their ideas, the sooner they’re prepared to compete when national and international markets become accessible.
The federal government is approving an increasing number of cannabis-related patents, over 50 percent of them in just the last three years. Patent applications for innovations related to cannabis have reportedly tripled since 2015. As the industry grows, so will the need for people in the cannabis industry to protect their ideas and investments from competitors.
But there are different paths one can pursue for patenting a cannabis invention, including the plant itself. Each comes with advantages and disadvantages.
Utility patents: Tougher to get but stiffer protections
These patents can cover a uniquely new strain, parts of the plant, its seeds, and the methods used to produce it. A utility patent would grant you 20 years of enforceable rights, for which you could seek relief from infringement in court.
A utility patent offers the greatest protections from someone else who may want to encroach on your innovation without compensating you. As opposed to plant patents described below, utility patents are granted for an applicant who “invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.”
Utility patents are far tougher to obtain than plant patents, however. You must more clearly describe how the invention, practically speaking, could be infringed upon by someone else and deserves patent protection as a result. This is exceedingly difficult to do when marijuana remains a Schedule 1 drug.
The patent news site IPWatchDog points to a 2015 cannabis patent for a hybrid plant sought by the California company Biotech Institute that illustrates the challenges. The United States Patent and Trademark Office allows applicants to submit plant or biological material to prove the claims being made. So Biotech tried to do that with seeds of its plant.
But they’re status as a Schedule I drug meant they couldn’t be placed in a federal repository to satisfy patent requirements. So Biotech found a clever loophole and stored the seeds instead at a depository in Scotland the United States was required to recognize under a treaty that dates to 1977.
Then came another challenge. The patent office wanted at least 2,500 of the seeds in the repository. Due to cultivation restrictions in states even where it’s legal, that meant Biotech had to complete two growing seasons to satisfy the requirement.
Utility patents impose another major barrier. You must prove to patent reviewers that your plant innovation is markedly different than what could already be found in nature. What are the other options?
Plant patents: Easier to get but fewer protections
In the same decade that the United States effectively prohibited marijuana, it also determined for the first time that a unique innovation worthy of patent protection can be uncovered in nature itself. The Plant Patent Act of 1930 recognized that plants could earn patent protection where they were asexually reproduced or by a method other than seeds.
These methods could include special grafting, cutting, or budding techniques. Plant patents for cannabis are quickly growing in popularity. More patents for distinctive cannabis mother plants than ever before were approved during 2020.
This is due in part to the fact that plant patents are easier to obtain than utility patents. But plant patents afford fewer protections to the innovator than utility patents. Fewer details are required in a plant-patent application, and patent reviewers apply less stringent standards to them compared to utility patents.
The first such cannabis application was approved under the Plant Patent Act in late 2016 for the plant “Ecuadorian Sativa.” This new strain, the applicant promised, “has energizing and motivating psychoactive effects, as opposed to the lethargy normally associated with ssp. indica.”
Plant patents are more common where cloning can reveal useful, new characteristics, such as a tree that blooms sooner or a flower that contains a new shade of color. But they only protect clones of the plant, rather than plants grown from seeds of the mother. A plant patent can protect your idea for 20 years and enables you to seek relief from infringers in court.
However, proving the infringement of plant patents is difficult. You must show that the infringer didn’t use seeds but instead used your method for the resulting plants. Hybrids or mutations of the plant would not be protected by the patent. But these mutations or hybrids could be patented in separate applications, experts say.
A successful plant patent nonetheless affords you some protection against those who attempt to sell, use, make, or import your idea. Although easier to obtain, just a few-dozen cannabis applications for plant patents have been filed so far with the Patent and Trademark Office. Compare that with thousands of utility patent applications submitted for cannabis oil-extraction methods, vapor devices, food products, and more.
According to the National Law Review, only 12 cannabis plant patents have been approved so far under the Plant Patent Act, but most of those occurred during 2020. Where applications have been rejected, the reasons vary. The National Law Review says patent examiners are “requiring considerable review for cannabis plant patents.” Here are the types of things examiners are looking for:
A detailed botanical description that shows how the invention is distinct
A description of where and how the plant was propagated by methods other than seeds
Details for how the reported levels of CBD and THC were achieved
A distinctive name for the invention that avoids it being confused with others
Plant variety: Least likely to get and fewer protections
Certificates for distinct plant varieties are awarded not by the patent office but instead by the U.S. Department of Agriculture. The same year Congress passed the Controlled Substances Act making marijuana a Schedule 1 drug, it also passed the Plant Variety Protection Act of 1970 intending to encourage new innovations in the agriculture sector.
Your invention under these protections could be a new variety of cannabis plant discovered through a seed-based process. Varietal protections are similar to those provided by plant patents. But the Agriculture Department has never issued one for cannabis before.
The blame for that falls squarely on the Drug War. This law mandates that you submit 3,000 seeds from your plant variety to a special depository in Colorado. Marijuana is not allowed as long as it is federally prohibited.
But if you miraculously win a plant-variety certificate, your protections would last for 20 years, and you could seek remedies for infringement in court.
Do you have an idea for a novel cannabis product? Have you created a new cannabis strain? Maybe you developed a more efficient technique for processing cannabis. You could receive patent protection by proving its distinctiveness from other innovations.
The universe of ideas can include everything from harvesting equipment and special cultivation lighting to sorting and trimming devices and new products for cannabis consumption. If you’ve created something unique, why not enjoy all of the benefits afforded to you by the United States government, even if it still insists that marijuana has “no currently accepted use”?
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