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.
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.