As the cannabis industry continues to grow, many businesses are increasingly concerned with protecting their intellectual property. One concern that arises is whether any new cannabis related innovations and inventions can be protected by a US patent. Thankfully, the answer seems to be that yes, cannabis related patents can be obtained, provided they meet all the general requirements for obtaining a patent.
For one thing, a simple search of the US Patent and Trademark Office (USPTO) online patent database reveals that more than 330 U.S. patents have been granted including the word “cannabis” somewhere within the scope of protection. Similarly, about 500 U.S. patents can be found based on the word “cannabinoid,” while more than 900 U.S. patents can be found by searching for protection given to “THC”. The USPTO is thus clearly granting patents for at least some cannabis related inventions.
Not only are U.S. patents being granted, but we now have evidence of them being upheld in court as well. On April 17, 2019, the United States District Court for the District of Colorado affirmed the enforceability of the first cannabis-related patent to make its way through the U.S. federal court system in United Cannabis Corp. (“UCANN”) v. Pure Hemp Collective Inc. Specifically, the District Court decided that cannabis formulations can be considered as patentable subject matter.
UCANN’s patent, U.S. Patent No. 9,730,911 (the ‘911 patent), claims “[a] liquid cannabinoid formulation, wherein at least 95% of the total cannabinoids is [tetrahydrocannabinol (THC), cannabidiol (CBD), cannabinol (CBN), or a combination thereof]”. Pure Hemp, in defense of a charge of patent infringement, argued the patent was invalid as being directed to an unpatentable product of nature. In upholding UCANN’s patent, the District Court indicated Pure Hemp failed to establish a liquified formulation of cannabinoid, at the concentrations specified in the ‘911 patent, could occur in liquid form in nature. This was a win not only for UCANN, but also for cannabis-related patent holders generally. It also closely follows on the heels of a USPTO decision in an Inter-Partes Review (IPR) proceeding in January 2019 where a cannabis-related patent was treated just like any other patent and largely survived intact. Based on these results, we should expect cannabis-related patents to be treated just like any other patents by the U.S. court system, both positively and negatively. This represents a significant step in bringing more certainty to the IP created and owned by cannabis businesses.
Accordingly, those in the cannabis industry should expect to see an increase in cannabis-related patent applications being filed, with a resulting increase in cannabis related patents being granted. In view of this recent trend, and as the enforcement of cannabis-related IP rights becomes more certain, the value of obtaining cannabis related patents will only continue to grow. Any cannabis related business that does not take active steps to protect its intellectual property may find itself left farther and farther behind the competition.
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