As more and more states legalize marijuana, competition between growers and processors to develop innovative new varieties and strains of the plant, as well as new cannabis-derived products, is intensifying.
Cannabis is a complex plant with a range of potential applications. From hemp refined into various commercial products, to marijuana strains bred to treat specific medical conditions, cannabis can serve many needs.
It’s becoming increasingly useful, therefore, for marijuana manufacturers and retailers to protect the unique strains and new cannabis products they’ve developed from imitators by applying for a patent.
Though cannabis remains federally illegal, there’s no prohibition on marijuana patents.
There are four main patent options available, all of which are applicable to hemp with less than 0.3 percent THC, and some of which can be used for cannabis containing more than 0.3 percent THC.
Utility Patents
Utility patents offer protection for “any new or useful product, machine, manufacture, or composition of matter, or any new and useful improvement thereof.”
So, if you have developed, for instance, a new grow method or an innovative way of extracting cannabinoids, then you could ensure your work is protected through a utility patent.
Utility patent law doesn’t just cover innovative techniques or new equipment though. It can also offer protection to new strains, including selection and breeding processes.
To be considered, utility patent applications must be submitted within one year of the innovation being disclosed publicly, unless you want international protection. In those cases, you should consult a patent lawyer. Laws differ from country to country so it may be in your interest to file the patent application before a public disclosure.
If you want to protect a new cannabis strain, then you must submit a seed or tissue sample alongside your application. Be aware though that you cannot protect cannabis strains containing more than 0.3 percent in the US with utility patents.
Plant Patents
Plant patents offer protection for a “living organism which expresses a set of characteristics determined by its single, genetic makeup or genotype, which can be duplicated through asexual reproduction but cannot otherwise be made or manufactured.”
A plant patent ensures the “owner’s right to exclude others from asexually reproducing the plant, and from using, offering for sale, or selling the plant so reproduced, or any of its parts, throughout the United States, or from importing the plant so reproduced, or any part thereof, into the United States.”
This protection can extend to all cannabis plants, irrespective of THC content.
Marijuana breeders expend considerable resources and creativity in developing unique strains to meet consumer needs. Without plant patent protection, there’s little stopping other cannabis growers from benefiting even though they played no part in its creation.
As with utility patents, plant patent applications must be submitted within one year of the plant’s public disclosure.
Plant Variety Protection Act
The Plant Variety Protection Act (PVPA) ensures 20 years of sole proprietorship over new, distinct, uniform and stable plant varieties that are either sexually or asexually reproduced.
Hemp was included as a plant eligible for protection through the PVPA shortly after it was federally legalized at the end of 2018. If it contains more than 0.3 percent THC, however, then the PVPA is not applicable.
Three thousand seeds and a tissue sample must be provided to the PVP office in order to benefit from this Act.
Trademark Protection for Strain Names
Trademark protection ensures other companies can’t use your brand identity in conjunction with their own goods and services.
This is fairly straightforward in most industries, but in the legal cannabis space it gets a little more complicated.
First, the Food, Drug and Cosmetic Act (FDCA) does not extend to CBD products marketed as foods or beverages. Second, the US Patent and Trademark Office (USPTO) does not recognize brand protection for unique cannabis strains and varieties.
This doesn’t mean you can’t seek trademark protection for your hemp strain though.
To do so, you should give your strain a ‘scientific name’ then come up with a brand name for it, which should bear little relation to the variety name the unique strain is derived from. This is the name you should seek trademark protection for, alongside applying for another patent that provides protection for the unique genotype of your strain.
Navigating the world of patent protections in the cannabis industry is a tricky business, so if you are concerned about losing the exclusive rights to any marijuana-related invention or innovation you’ve developed, then you should consider speaking to a patent law specialist.
