Attempting To Patent Cannabis-Related Inventions May Be Challenging

Apr 10, 2018

Patent protection in the cannabis industry can be confusing, at best, given the dichotomy between federal prohibition and state legalization, and the Trump administration’s renewed interest implementing federal enforcement mechanisms against cannabis at the state level. Industry players interested in patenting their cannabis strains and/or cannabis-related products may not be sure about how and whether patent protection extends to cannabis. For clarity, let’s explore some of the basics of patent protection as it pertains to cannabis and cannabis-related products.

Patent Protection for Cannabis and Cannabis-Related Products

At the federal level, cannabis is categorized as a Schedule I drug that has no currently accepted medical use and a high potential for abuse. Still, despite the fact that the federal government and its agencies do not necessarily accept the value — both medicinal and otherwise — of cannabis, patent protection has been extended to various applicants for cannabis strains, growth/breeding processes, and cannabis-related products.

How?

In the United States, federal patent law does not explicitly prevent the extension of patent protection when the invention itself runs afoul of the law (or public morality). Technically speaking, there are no specific limitations imposed on inventors when it comes to cannabis and cannabis-related products; cannabis-related inventors have only the same limitations as all other inventors. For example, a patent cannot be granted to the inventor of a technique for extracting CBD from cannabis if that technique is not sufficiently original to qualify for a patent.

With a patent, the patent-holder may enforce its exclusivity rights throughout the country, and more specifically, in states where the cannabis industry is legal. Those who are operating a cannabis business illegally could ostensibly infringe on your patent rights (and make civil enforcement of your patent rights difficult), but they would likely also be subject to criminal liability for their illegal operation.

Alternative Intellectual Property Protections

You may want to pursue alternative forms of intellectual property protection, where possible, as part of your overall intellectual property strategy. For example, trade secret law can help cannabis manufacturers protect their secret, unique recipes/techniques. As trade secret law is governed by state law, there are no issues with the legality of cannabis — such concerns do not present a stumbling block.

Call Today to Connect With an Experienced Cannabis Attorney

Greenspoon Marder LLP is a national full-service business law firm with over 200 attorneys across 25 offices throughout the United States. Our attorneys have decades of experience providing cutting-edge legal representation to the interests of numerous clients involved in the cannabis industry, from investors to growers to retailers, and more. Our firm is dedicated to serving the cannabis industry and its various players. To that end, we have helped many of our clients navigate the difficult intellectual property terrain that is associated with the cannabis industry.

Call (888) 491-1120 today to schedule a consultation with an experienced cannabis attorney here at Greenspoon Marder. We look forward to assisting you with your intellectual property concerns.

About Greenspoon Marder

Greenspoon Marder LLP is a full-service law firm with over 240 attorneys and more than 20 office locations across the United States. With operations from Miami to New York and from Denver to Los Angeles, our firm attracts some of the nation’s top talent in key markets and innovation hubs. Our core practice areas include Real Estate, Litigation, and Transactional Services, complemented by the capabilities of a full-service firm. Greenspoon Marder has upheld a spot on The American Lawyer’s Am Law 200 as one of the top law firms in the U.S. since 2015, and our goal is to provide exceptional client service by developing a thorough understanding of each client’s business needs and objectives in order to provide strategic, cost-effective solutions.

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This Greenspoon Marder LLP Client Alert is issued for informational purposes only and is not intended to be construed or used as general legal advice nor a solicitation of any type. Please contact the author(s) or your Greenspoon Marder LLP contact if you have any questions regarding the currency of this information. The hiring of a lawyer is an important decision. Before you decide, ask for written information about the lawyer’s legal qualifications and experience.

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