This blog post is the first in a series that will explore patent protection, trademarks, trade secrets, copyright, and other types of protections available.
Acquiring a patent is a timely and often very costly endeavor. A frequent question is whether cannabis plants and products are eligible for patent protection. A brief primer will help to understand some of the basics about patents before we answer that question.
Patent protection stems from the United States Constitution. “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries” U.S. Const. Art. I, §8, cl. 8 A patent is a right of exclusion, not a right to produce. It is a property right for the inventor or owner.
Timing in patents is vital and sometimes tricky, it is important to seek professional guidance in these matters. Generally, patents last 20 years from filing. However, that time might be adjusted if it is tied to earlier filed patent or an extension might be available depending on the circumstances. Additionally, design patents have a 14 or 15-year life. If they were filed after May 13, 2015, they have a 15-year life. Design patents filed prior to May 13, 2015, have a 14-year life.
There are three types of patents available. Plant patents are for an invention or discovery of asexually reproduced distinct and new variety of plants. Design patents are for new and original ornamental design for an article of manufacture. Lastly, utility patents are used for new and useful processes, machines, articles of manufacture, or compositions of matter, or any new and useful improvement thereof. The proper type of patent must be filed to protect the intellectual property.
There are many limitations to obtain a patent. For example, you may not obtain a patent if the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention (1 year, experimentation, etc….) or the claimed invention was described in a patent issued [by the U.S.] or in an application for patent published or deemed published [by the U.S.], in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Cannabis and Patents
Likely, the most talked about US patents relating to marijuana is the government owned US 6,630,507 B1 Cannabinoids as Antioxidants and Neuroprotectants (2003). Taken from the patent’s abstract, it is described as:
Cannabinoids have been found to have antioxidant properties, unrelated to NMDA receptor antagonism. This newfound property makes cannabinoids useful in the treatment and prophylaxis of wide variety of oxidation associated diseases, such as ischemic, age-related, inflammatory and autoimmune diseases. The cannabinoids are found to have particular application as neuroprotectants, for example in limiting neurological damage following ischemic insults, such as stroke and trauma, or in the treatment of neurodegenerative diseases, such as Alzheimer’s disease, Parkinson’s disease, and HIV dementia. Nonpsychoactive cannabinoids such as cannabidiol are particularly advantageous to use because they avoid toxicity that is encountered with psychoactive cannabinoids at high doses useful in the method of the present invention. A particular disclosed class of cannabinoids useful as neuroprotective antioxidants is formula (I) wherein the R group is independently selected from the group consisting of H, CH3, and COCH3.
The patent is owned by The United States of America As Represented by The Department of Health and Human Services. It is important to remind the reader that owning a patent does not give the owner the right to make the invention. Even if the patent office grants a patent for a strain marijuana, it does not decriminalize the making, use, or possession under US Federal Law.
There are many areas of cannabis agriculture and manufacture that will continue to develop and may be eligible for US patent protection. Areas include isolating techniques and extractions, topicals, gas delivery systems, paraphernalia, and even veterinary relief. This blog will continue to explore additional patent topics and filed patent applications relating to cannabis.