Hardly Stoked: The Harsh Reality of Patent Law in the Cannabis Industry

Without a doubt, the legalmarijuana business has been booming ever since recreationaluse became legal in the United States in 2012. Currently, nineU.S. states as well as the District of Columbia allow bothrecreational and medical use of marijuana, twenty-one states allow medical useonly, and sixteen allow the medical use of as CBD (or cannabidiol, anon-psychoactive component of marijuana).

Within the next ten years, legalmarijuana spending is projected to reach $57 billion worldwide, with67 percent of those sales consisting of recreational use and the remaining 33percent of medical use.

However, the road is far frompathed for cannabis industry entrepreneurs—particularlywhen it comes to intellectual property rights. On one hand, IPlaws hinder the opportunity for monetization, and few patents withinthe industry exist as a result. On the other, thereis also significant misunderstanding surrounding the available options withinin IP for cannabis entrepreneurs, many of which stem from thegeneral public’s assumption that because recreational and medical marijuana arenot legal nationwide, there is no legal path for IP rights.

For starters, marijuanais still illegal at the federal level. The controlled Substances Act,despite emerging consensuses to the contrary, still treats cannabis as ScheduleI drug, thus prohibiting possession. Adding to the tension, in2018 Attorney General Jeff Sessions gave federal prosecutors permission to trycannabis cases in states that had already legalized it, overturningthe Obama-era’s lax take on marijuana.

In the patent world, there arecurrently about sixty active patents inthe U.S. for cannabis or cannabis-related inventions, includingmethods for hydrogenating oil, specific man-made cannabis plant strains, and cannabis-infusedmilk products. Although not an extraordinary quantity, the diversity of thesepatents speaks to the wide applicability of patent law with regard to thecannabis industry. But that the number of active patents would multiply were itnot for the illegality of cannabis at the federal level.

Plant patentsare also an option. They’re also incredibly hard to get.

Plant patents extend to living organisms, as long as they have been modified by human intervention and are not merely discovered—a category which owes its existent to the landmark Diamond v. Chakrabarty case. Thus, an individual can only file patents over those “new” plants that can be recreated via “asexual reproduction,” as on not occurring via typical, natural pollination. The problem is that cannabis plants are naturally sexually reproduced—therefore, the onus is on the individual seeking patent protection to prove that the plant in question can be duplicated via asexual reproduction and does not naturally exist as is. This is a high bar to clear. Thus, cannabis patents face two challenges. Because cannabis is still illegal federally, the general public who have not familiarized themselves with the USPTO probably think it is illegal to even file such applications—after all, the USPTO is a government agency. But even for those who are aware of the patent law’s flexibility, plant patents are hard to come by, stifling the creative entrepreneurs creating new strains of cannabis.

Chelsea Pieroni, 11 February 2019