plant patents, plant variety protection

Patent Pending: The Future of Intellectual Property Rights in Cannabis

by | Jun 27, 2018

plant patents, plant variety protection

Written by Jessica McKeil

Jessica McKeil is a cannabis writer and B2B content marketer living in British Columbia, Canada. Her focus on cannabis tech, scientific breakthroughs, and extraction has led to bylines with Cannabis & Tech Today, Terpenes and Testing, Analytical Cannabis, and Grow Mag among others. She is the owner and lead-writer of Sea to Sky Content, which provides content and strategy to the industry’s biggest brands.


U.S. patent number US6630507B1US, held by the U.S Department of Health and Human Services (HHS), has long been a point of contention for cannabis activists. The patent covers “Cannabinoids as antioxidants and neuroprotectants,” and since it’s filing in 1998, the patent has been the surrounded in controversy and conspiracy theories. Why would the U.S. government hold a patent for cannabis, yet continue to keep it as Schedule I under the Controlled Substances Act?

Beyond the conspiracy theory of cannabis patents, the U.S. government isn’t the only company protecting intellectual property rights in cannabis. There are nearly 60,000 patents issued covering types of cannabis innovation and another 90,000 applications in process. The burgeoning marijuana industry is a gold rush for patent law firms around the country. Marijuana businesses are scrambling to protect their intellectual property rights, in a sector that until recently was relatively unprotected.

Its pertinent for cannabis producers, cultivators, and entrepreneurs to take a multifaceted approach to intellectual property protection. It's not just about protecting an invention; it's about gaining a competitive edge over other up-and-comers in the sector and establishing your brand before others become entrenched. It's time to consider the long-term payoffs from protecting all aspects of your brand as the market heats up.

Federal Regulation and U.S. Patents

State by state, the U.S is opening up to the idea of cannabis as medicine and a significant contribution to the economy. There are also hints that the federal government may be becoming more lenient with the plant. The Food and Drug Administration (FDA) moves to approve a cannabinoid drug for epilepsy, and the Drug Enforcement Agency (DEA) may have just clarified the legal status of non-psychoactive cannabidiol. This is all the more reason to consider brand and intellectual property protection today.  Cannabis is just as patentable today, as it was yesterday. The first cannabis patent went into effect in the U.S. in the early 1940’s.

In the U.S., despite the current federal classification of THC, The United States Patent Trade Mark Office (USPTO) applies the same rules to cannabis-related patents as to those submitted from any other sector. So long as the applicant can prove the process, method, machine, article of manufacture or composition of matter, is new, useful, and nonobvious, the USPTO will consider it.

The possibilities for patents in the marijuana industry are much broader than one might first assume, considering patents don’t strictly apply to strictly physical inventions. According to Knobbe Martens, an intellectual property, and technology law firm, some current areas to take into consideration for cannabis-related intellectual property rights are:

  • New and genetically modified Strains of Cannabis
  • New methods of identification and characterization of the many chemical compounds of cannabis; the detection and analysis.
  • New methods of extraction and processing.
  • New cannabinoid derived compositions
  • New consumption devices
  • New advances in marijuana as medicine
  • New innovations in cannabis cultivation

Cannabis Intellectual Property in Canada

The same intellectual property rights experienced in the U.S. do not apply globally. In Canada, as one timely example, cultivators are typically unable to protect specialized strains of cannabis due to the structure of their patent law. Under Canadian law, ‘higher life forms’ which include plants and animals, are unpatentable as they do not qualify under the definition of a patent.

With the right approach, some Canadian law firms suspect that producers may be able to patent genetically modified strains or patent the use of specific strains for the treatment of particular illnesses. Under certain circumstances, breeders may also qualify for a grant under the Plant Breeders’ Rights Act. However, cultivators and cannabis breeders need to know the limits of their rights in these special cases. Under the law, Canadian breeders must file for a Plant Breeders Right’s defined patent within a year of development. Time is of the essence for strain protection.

Public Domain or Intellectual Property

Unsurprisingly, there are two sides on the issue of cannabis and intellectual property. Clearly, with the growing number of patents in the U.S. alone, there is a movement towards protecting all aspects of innovation within the industry, but there is a small but boisterous movement of people trying to protect cannabis from private takeover.

In a push to protect public access to certain strains or processes, some companies, are making their innovations public knowledge. If the methodology or strain is widely adopted, its no longer available for patenting.  Ultimately it is up to the business to determine the long-term benefits of either approach. The market is dynamic, and the issue of cannabis intellectual property rights is sure to evolve over the coming years.