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The Patentability of Cannabis

  • Sep 17 2019

With a massive boom in cannabis and cannabis-related products, it is not surprising that legal issues surrounding these products have arisen. While trademarking cannabis-related products and processes can be murky, patenting them has followed a clearer path. 

Cannabis and Cannabis-Related Utility Patents

Many utility patents have already issued to cannabis and cannabis-related inventions by the U.S. Patent and Trademark Office (USPTO). Utility patents are a negative right, which means that they give owners the right to exclude others from making, using, selling, offering for sale or importing their product. Because utility patents are a negative right, they do not grant owners the positive right to actually sell any cannabis product.

According to the USPTO database, since 2018, more than 120 U.S. Patents have been issued that contain the word “cannabis” or “cannabinoid” in at least one claim. 

Despite the fact that cannabis has a different classification (Schedule I pursuant to the Federal Controlled Substances Act) than that of other patent applications, it does not change the way in which the USPTO reviews related utility patents. 

It may be surprising to know that even the U.S. Department of Health and Human Services (HHS) owns a patent for a cannabis-related invention. The HHS was issued U.S. Patent No. 6,630,507 as of 2003. The patent entitled “Cannabinoids as antioxidants and neuroprotectants,” was controversial in that many activists believed that it put the Federal government at odds with the Drug Enforcement Administration (DEA)’s refusal to remove cannabis as a Schedule I substance.

A New Precedent on the Horizon

Even though utility patents are often granted for cannabis-related products and processes, it remains unclear as to whether or not they will be upheld as valid and enforceable. It is less clear because infringement lawsuits concerning cannabis-related products have not occurred until recently. The first patent infringement suit of its kind, United Cannabis Corp. v. Pure Hemp Collective Inc., was filed on July 2018. Answers and counterclaims were filed in November 2018, with the submission of briefs regarding claim construction taking place on June 2019.

The patent at issue, in United Cannabis Corp., is for “cannabis extracts and methods of preparing and using same.” The claim was brought because United Cannabis purchased and analyzed one of Pure Hump’s products, which revealed that it contained a formula that infringed on one of the existing patent’s claims. 

Many have criticized this case because they believe the patent to be too broad in scope. Some believe that the real problem is a lack of readily available prior cases due to the federally illegal status of cannabis. Should the court decide to uphold the patent, this could create a new precedent in which similarly broad cannabis-related patents could become extremely litigious. 

Scully, Scott, Murphy & Presser P.C. Can Help Protect Your Inventions and Your Rights

If you have an issue with product or procedure that you wish to have protected, or if you have an existing patent that you believe is being infringed upon, it is in your best interest to consult with a knowledgeable and experienced patent attorney in order to determine what your options may be. 

At Scully, Scott, Murphy & Presser P.C., our qualified patent attorneys can help you to navigate the patent application process or can help to defend your patent and your rights regarding infringement. To learn more about the patent prosecution process or to schedule a free consultation, contact us today!

Posted in: Patents

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