Patenting pot: How patent law could affect the cannabis industry
Patents are the legal equivalent of calling “dibs” on an idea or product and can be used as legal safeguards against competitors. In a fast-growing industry like cannabis, new businesses may look into ways to safeguard their enterprises.
According to Forbes, the US Patent Office has received almost 1,500 cannabis patent applications since 1942, with the majority of those applications coming in the last 25 years. Even before recreational cannabis was legalized, people could file for patents on specific cannabis-related inventions.
A patent grants the holder intellectual property rights to an invention and prevents others from making, selling or using the patented invention without express permission. Inventions that can be patented include machines, processes and compositions, asexually reproduced plants, among other things.
Some patents describe with the ways in which cannabis can be used, such as United States Patent 4,876,276, which patents the use of a specific cannabis composition for pain relief. The patent authors hold that their compositions contain “potent analgesic, antiemetic and antiglaucoma effect” – basically long-lasting pain relief without side effects seen in other chemical compounds.
The technical document dives into the specific makeup of the compound and how it’s extracted. The patent gives the authors grounds for a lawsuit if another company tries to duplicate their work and sell it for profit.
For example, a small grower who develop a particularly tasty hybrid might seek a patent to prevent the competition, or a larger company, from duplicating their results and selling them out of business. Only plants that are are reproduced asexually, like roses and apple trees, can be patented which disqualifies certain forms of cannabis.
Patents come into play when large pharmaceutical companies, which are known to use patent law to their advantage, start using cannabis-derived compounds. Patents can be used to keep the price of a drug artificially high or to prevent generic versions from being created.
Down the line, patents may drive up the price of certain strains but at the moment there’s very little to worry about. According to an article on law resource IP Watchdog, cannabis patents are also tricky because there is a “lack of available prior art in the sector,” or little precedent for cannabis-related cases.
The reality of enforcing a cannabis-related patent or even getting a judge to hear the case, isn’t so straightforward. As with many aspects of the cannabis industry there seems to be a steep learning curve. There’s still a long way to go in terms of banking, zoning and business law.
The fact that the Drug Enforcement Agency (DEA) still classifies cannabis as a Schedule 1 substance – the same category as LSD and cocaine – causes many of these lawsuits to be rejected. The popular cannabis-derivative, CBD, is classified as a Schedule V substance.
While there’s little to lose from patenting a particularly innovative cannabis compound of hybrid strain, a patent shouldn’t be seen as ironclad protection, especially in the cannabis industry.