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

February 17, 2019

Without a doubt, the legal marijuana business has been booming ever since recreational use became legal in the United States in 2012. Currently, nine U.S. states as well as the District of Columbia allow both recreational and medical use of marijuana, twenty-one states allow medical use only, and sixteen allow the medical use of as CBD (or cannabidiol, a non-psychoactive component of marijuana).

Within the next ten years, legal marijuana spending is projected to reach $57 billion worldwide, with 67 percent of those sales consisting of recreational use and the remaining 33 percent of medical use.

However, the road is far from pathed for cannabis industry entrepreneurs—particularly when it comes to intellectual property rights. On one hand, IP laws hinder the opportunity for monetization, and few patents within the industry exist as a result. On the other, there is also significant misunderstanding surrounding the available options within in IP for cannabis entrepreneurs, many of which stem from the general public’s assumption that because recreational and medical marijuana are not legal nationwide, there is no legal path for IP rights.

For starters, marijuana is still illegal at the federal level. The controlled Substances Act, despite emerging consensuses to the contrary, still treats cannabis as Schedule I drug, thus prohibiting possession. Adding to the tension, in 2018 Attorney General Jeff Sessions gave federal prosecutors permission to try cannabis cases in states that had already legalized it, overturning the Obama-era’s lax take on marijuana.

In the patent world, there are currently about sixty active patents in the U.S. for cannabis or cannabis-related inventions, including methods for hydrogenating oil, specific man-made cannabis plant strains, and cannabis-infused milk products. Although not an extraordinary quantity, the diversity of these patents speaks to the wide applicability of patent law with regard to the cannabis industry. But that the number of active patents would multiply were it not for the illegality of cannabis at the federal level.

Plant patents are 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