Amid the quick expansion of the legal cannabis market, many cannabis growers and business owners are pushing to secure intellectual property rights for the strains and products they\u2019ve created.<\/p>\n
Cannabis patents currently exist in a still-clouded regulatory atmosphere thanks to federal prohibition, but it\u2019s still possible to receive one \u2014 and the cannabis industry is certainly rising to the challenge to secure their own rights to continue cultivating strains that have long been part of the genetic and intellectual commons.<\/p>\n
In the midst of this push for protecting cannabis intellectual property, there has been a rash of court cases and developments that have changed the foundation of cannabis patents in America. So what does it mean for the average cannabis consumer, who perhaps has heard to be wary of the day a patent-wielding Monsanto enters the cannabis industry?<\/p>\n
Here is a basic guide to what you need to know about cannabis patents.<\/p>\n
In the United States, there are three kinds of patents: utility patents, for a process or application of particular products; design patents, generally for industrial products; and plant patents, for new varieties of plants.<\/p>\n
Each of these types of patents could apply to cannabis products. For example, in 2017, a Nevada-based firm with the slightly presumptuous name\u00a0Cannabis Sativa Inc<\/a>\u00a0did\u00a0win a plant patent<\/a>\u00a0for a strain called Ecuadorian Sativa. The firm boasted of its high content of the terpene limonene, and its possible curative capacities for various ailments \u2014 not of THC. The company was later able to\u00a0procure a utility patent<\/a>\u00a0for a cannabis lozenge.<\/p>\n This one of the few cannabis patents that have been granted in the U.S.\u00a0According to Forbes<\/a>, the U.S. Patent Office has been issuing cannabis patents since 1942, despite the fact that the plant is a Schedule I drug. Over the years, about 1,500 cannabis patents have been filed, and there were about 500 active cannabis patents, as of 2017.<\/p>\n One\u00a0bizarre contradiction<\/a>\u00a0of federal policy is illustrated by the fact that in 2003, the U.S.\u00a0Department of Health and Human Services<\/a>\u00a0itself\u00a0secured a patent \u2014 number\u00a06630507<\/a>\u00a0\u2014 for the use of cannabinoids (not including THC) as antioxidants and neuroprotectants. Yet just three years later, an FDA\u00a0memorandum reiterated<\/a>\u00a0the official position that cannabis has \u201cno medical value.\u201d<\/p>\n A utility patent protects the way that something is used and how it works. Consider the utility patent for a cannabis lozenge: it\u2019s a patent on the idea that cannabis can be consumed in lozenge form to address a specific problem.<\/p>\n That makes utility patents particularly broad, and therefore could be used to step on more cannabis companies\u2019 toes.<\/p>\n For example, \u201cyou can\u2019t say you\u2019ve done all the work necessary to establish use of cannabis for headaches,\u201d Jerry Whiting of Seattle-based\u00a0LeBlanc CNE<\/a>, which develops and markets CBD products, told Cannabis Now. \u201cThat\u2019s not worthy of government protection. These patents are unenforceable in most cases, but nobody can afford the lawyers to go after them.\u201d<\/p>\n It\u2019s confusing: Getting a cannabis patent with the federal government is possible, but a cannabis\u00a0trademark<\/em>\u00a0is not. A trademark is a form of intellectual property protection over a name, word, logo, symbol or design associated with a product or company.<\/p>\n Currently, there is no process for trademarking a product that contains significant quantities of THC, and the federal government is only now moving to establish such a process for CBD products.<\/p>\n In a case that exemplifies the persisting dilemmas, a federal court in California ruled last month that cannabis edibles cannot be trademarked due to federal prohibition.<\/p>\n As\u00a0Food & Beverage Litigation Update<\/a>\u00a0reports, the San Francisco-based court for California\u2019s Northern District rejected a trademark infringement claim in\u00a0Kiva Health Brands LLC v. Kiva Brands Inc<\/a>.<\/em>\u00a0In the litigation, Kiva Brands Inc (KBI<\/a>) and Kiva Health Brands (KHB<\/a>) disputed rights to the \u201cKiva\u201d trademark. KBI asserted that they owned the name, given that they had been selling cannabis-infused edibles under the name in California since 2010. But the court said no dice.<\/p>\n In 2010, the federal government did entertain the idea of allowing trademarks for medical marijuana products. Hopes had been raised by the government\u2019s creation in April 2010 of a new trademark category: \u201cProcessed plant matter for medicinal purposes, namely medical marijuana.\u201d<\/p>\n Applications for trademarks were quickly filed.\u00a0<\/p>\n \u201cIt looked like a positive step to me. We don\u2019t have many steps by the federal government legitimizing medical cannabis,\u201d Steve DeAngelo, executive director of Oakland\u2019s flagship dispensary,\u00a0Harborside, told the\u00a0Wall Street Journal<\/a>. But that July, the USTPO did an about-face and nixed the plans.<\/p>\n In September, the U.S. Patent and Trademark Office\u00a0awarded<\/a>\u00a0\u201cwhat appears to be the first patent for a hemp strain\u201d to Denver-based Charlotte\u2019s Web Holdings. Charlotte\u2019s Web obtained U.S.\u00a0Plant Patent No. PP30,639, listing CEO Joel Stanley as an inventor of the\u00a0\u201cnew and distinct hemp cultivar designated as \u2018CW2A.’\u201d<\/p>\n The federal bureaucracy is starting to catch up with the law following passage of the 2018 Farm Bill. The USPTO in May\u00a0issued guidelines<\/a>\u00a0for trademarks on CBD products, while the U.S.\u00a0Agriculture Department (USDA) is preparing to recognize intellectual property in hemp varieties.\u00a0<\/p>\n At the international level, hemp strains are already\u00a0being registered<\/a>\u00a0with the Geneva-based International Union for the Protection of New Varieties of Plants (UPOV<\/a>).<\/p>\n Starting with the failed California legalization bid Proposition 19 in 2010, we\u2019ve seen the strange phenomenon of \u201cStoners Against Legalization<\/a>\u201d \u2014 cannabis users and growers who viewed the initiative (and the successful Proposition 64 six years later) would allow big corporations to corner the cannabis market and squeeze out independent growers via access to finances and patents.\u00a0<\/p>\n These fears were fueled by\u00a0rumors<\/a>\u00a0in 2010 that the Drug Enforcement Administration was granting big corporations licenses to grow cannabis for research. The concern was that these companies could develop novel applications for cannabis, receive a broad patent, and then go after smaller cannabis growers for infringing on their patent, wielding the patent like a legal bludgeon. This is a strategy\u00a0made famous by Monsanto<\/a>, which uses its corn and soy patents to push out small farmers growing those crops.<\/p>\n The federal government will only grant a patent to someone if it believes the product or idea in question is a \u201cnovel invention,\u201d and that means no one has come up with it before.<\/p>\n \u201cPrior art\u201d is anything that proves a patent was not a novel idea. For example, if Person A gets a plant patent for a cannabis strain they claimed was unique, but Person B can prove they grew that strain in 2014, the patent could be held invalid.<\/p>\n Breeders and growers are still wrestling with how to assert their traditional rights in the increasingly corporate-dominated cannabis environment, and especially because many illicit market growers were understandably avoiding keeping a paper trail. In the cannabis space, many people have advocated for using strain databases to build potential \u201cprior art\u201d defenses.<\/p>\n For those people who don\u2019t want to claim ownership over cannabis \u2014 and want to keep cannabis open to the public, open source projects have been useful.<\/p>\n For example, the Oregon non-profit\u00a0Open Cannabis Project<\/a>\u00a0sought for years to protect the cannabis genome from corporate privatization by gathering cannabis data to keep in the public domain. (However, Open Cannabis Project has been suspended following\u00a0a controversy<\/a>\u00a0concerning the supposed proprietary ambitions<\/a> of its for-profit partner, Portland-based\u00a0Phylos Bioscience<\/a>. Phylos encouraged cannabis growers to use its strain genotyping services and database to establish prior art.<\/a>)<\/p>\n \u201cNobody has the right to patent the Garden of Eden,\u201d says Whiting. \u201cNo one owns nature. The rest is just courtroom bullsh*t.\u201d<\/p>\n Whiting has drawn up what he calls an \u201copen-source alternative licensing schema\u201d under the title\u00a0\u201cCannabis Breeders Rights<\/a>.\u201d It lists different categories, such as \u201cgrow & harvest\u201d only or \u201ccloning allowed.\u201d\u00a0<\/p>\n His proposed framework is also designed to protect the rights of small growers who do not have access to economies of scale.<\/p>\n Whiting\u2019s \u201cend-user license agreement\u201d would establish the prior art of a particular cannabis strain. <\/p>\n \u201cMy wishes going forward are that these strains are never to be owned by anyone,\u201d he says. \u201cAs long as it\u2019s being used by seed-savers in backyards, it\u2019s free.\u201d\u00a0\u00a0<\/p>\n This system is based on terms agreed to by vendor and purchaser, rather than patents.<\/p>\n Whiting\u2019s alternative licensing proposal is partly inspired by \u201cBerkeley Standard Distribution<\/a>,\u201d the norm adopted by computer engineers in the \u201990s\u00a0that established UNIX-based operating systems as open-source. \u201cA\u00a0lot of the software that runs the world today is not under commercial license,\u201d he says.<\/p>\n TELL US,<\/strong>\u00a0do you think cannabis genetics should be free for public use?<\/p>\n The post A Quick Guide to Cannabis Patents: What You Need to Know<\/a> appeared first on Cannabis Now<\/a>.<\/p>\n
Amid the quick expansion of the legal cannabis market, many cannabis growers and business owners are pushing to secure intellectual property rights for the strains and products they\u2019ve created. Cannabis patents currently exist in a still-clouded regulatory atmosphere thanks to federal prohibition, but it\u2019s still possible to receive one \u2014Continue Reading<\/a><\/span><\/p>\n","protected":false},"author":190,"featured_media":0,"comment_status":"false","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[6726,50,4473,12756,170,12757,296,12758,4552,12759,11803,9996,12760],"tags":[],"_links":{"self":[{"href":"https:\/\/cannabiscultivatornews.com\/home\/index.php\/wp-json\/wp\/v2\/posts\/39205"}],"collection":[{"href":"https:\/\/cannabiscultivatornews.com\/home\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/cannabiscultivatornews.com\/home\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/cannabiscultivatornews.com\/home\/index.php\/wp-json\/wp\/v2\/users\/190"}],"replies":[{"embeddable":true,"href":"https:\/\/cannabiscultivatornews.com\/home\/index.php\/wp-json\/wp\/v2\/comments?post=39205"}],"version-history":[{"count":1,"href":"https:\/\/cannabiscultivatornews.com\/home\/index.php\/wp-json\/wp\/v2\/posts\/39205\/revisions"}],"predecessor-version":[{"id":39206,"href":"https:\/\/cannabiscultivatornews.com\/home\/index.php\/wp-json\/wp\/v2\/posts\/39205\/revisions\/39206"}],"wp:attachment":[{"href":"https:\/\/cannabiscultivatornews.com\/home\/index.php\/wp-json\/wp\/v2\/media?parent=39205"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/cannabiscultivatornews.com\/home\/index.php\/wp-json\/wp\/v2\/categories?post=39205"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/cannabiscultivatornews.com\/home\/index.php\/wp-json\/wp\/v2\/tags?post=39205"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}Why Are People Particularly Scared of Utility Patents?<\/h4>\n
What About the Process for Getting a Cannabis Trademark?<\/h4>\n
What About Hemp Patents?<\/h4>\n
Why Are Cannabis Patents So Controversial?<\/strong><\/h4>\n
Why Is \u201cPrior Art\u201d So Important?<\/h4>\n
What Do \u201cOpen Source\u201d Cannabis Projects Mean for Cannabis Intellectual Property?<\/h4>\n
\n
\nRead More: A Quick Guide to Cannabis Patents: What You Need to Know<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"