CANNABIS CULTURE – Cannabis is legal for recreational use in nine states, and is legal for medicinal use in another thirty states. In every other state, it is illegal. Now that it has some legal standing, there are going to be those who realize the monetary potential behind it, and may want to get a headstart from everyone else by patenting cannabis. Following are details of what a patent is, how they apply to cannabis, and what some complications behind patenting cannabis are.Paten
What are patents?
Patents give the right to exclude others from making, using, selling, and importing an invention for a period of time, providing protection for the inventor. The requirements to obtain a patent are that the invention must be new and useful, non-obvious, novel, and must not already exist in nature. The details of the invention also must not have been revealed to the public, because the United States Patent and Trademark Office (USPTO) may may deny the patent, because then the information is considered public knowledge.
Types of patents for Cannabis
There are three types of patents: design, utility, and plant. In regards to cannabis, only utility and plant patents are applicable. Utility patents covers the creation of a product, process, or a machine, and prevents other individuals from using or making the invention without authorization. In regards to cannabis, this may mean the methods of preparation, the drug formulations, lighting, the growing process, etc. Plant patents protect the plant itself, or the strain, and they prevent anyone else from using or creating that strain or particular plant. For plant patents, the specimen cannot already exist in nature, because you cannot patent what is natural.
Complications with the patent
As with anything, there are some complications to patenting cannabis. Cannabis is still illegal at the federal level. This makes some dealings with cannabis difficult and much more complicated.
The type of patent an individual may want is one thing that provides a complication. As stated before, there are utility and plant patents available for cannabis; if one is honest, the only patent individuals are more likely to be approved for are utility patents. Plant patents are a bit more delicate, as they are very rare and need a lot of evidence behind them. I spoke to J.D Houvener, founder and CEO of Bold Patents, a patenting company, and who has written several books on patenting. Houvener stated that, to be eligible, or even considered for a plant patent, “You have to prove to the patent office that it’s in a lab setting.”
“Cannabis is a plant that is sexually reproduced,” Houvener explained; a male and female plant is needed in the pollination process, and plants that grow this way are ineligible for patenting. So an individual would have to prove that their specimen can be asexually reproduced in a lab setting. If the seed of the plant is genetically modified in a lab setting, then that plant can be patented. If, however, the seed needs another seed, it cannot be protected under the patent law. This is something that is very difficult to prove.
Not only this, but the USPTO requires that the individual or company ship them a specimen, so they can see if the specimen can actually be reproduced in a lab setting. The issue with this is that it is federally illegal to ship cannabis using the postal system. In the cases where plant patents were approved, the individuals lived in an area where there was a patent office locally, so they didn’t have to ship them. So even if one were to have proof that their specimen can be reproduced, getting it to the USPTO will have complications.
One more thing; with these patents, you own the rights to the plant itself, or the processes and machines, or the chemicals within the plant. Within these elements, you are protected. You, however, do not have the right to make and distribute cannabis, because it’s still illegal federally. The patent only gives you the right to prevent everyone else from making your product.
Another complication with patents is the location or area they apply to. If approved for a patent here in the United States, your patent is only applicable to the United States. If an individual or company tries to sell or create with your invention here in the U.S, without your authorization, you can pursue legal action. If however, an individual’s patent only applies to the U.S, and someone in another country recreates their invention, they can create and sell to anyone in their country and in other countries; they just can’t sell to the U.S. If you want protection in more than just the United States, you will have to apply for patents in other countries as well.
A way to prevent this from happening is trade secrets, which is keeping confidential any information that provides economic value. This means keeping the methods and processes of your product unknown. “Like the Coke recipe,” Houvener says. “You drink the Coke, but you don’t necessarily know how they did it. Even if you’re a chemist; you can tell what elements are there, but you can’t tell how to make the Coke.” As long as the process is non reverse-engineerable, you should be safe, as long as you and anyone else who may know the secrets keeps it a secret.
An issue with these ripoffs is the legal processes. If they use your invention to produce and distribute in areas where your patent applies, you would be inclined to pursue legal action. This, however, may take time and money; time and money that you may not necessarily have, and that this company or individual may have plenty of. The court process can be lengthy and costly. Sure, you may win, but after legal fees and time spent in court, you may either not come up much, or may have lost more than you gained. Not only this, but the litigation on cannabis is unknown. There are really no reliable cases to base judgements off of.
Cannabis is not legal in every state, which means if you wanted to patent cannabis and the processes you use to grow it, it would have to be in a state where cannabis is legal. Otherwise, you’re infringing on the state’s cannabis laws. If this is something you’re interested in doing and patenting, you may have to move to a state where what you’re doing is perfectly legal and where you will have little to no opposition.
Patenting cannabis is not an easy feat, especially if you live in a state where it is illegal. There are going to be complications along the way, but if done right, one can bypass these complications and be approved for their patent. The good thing about these patents is that there are no age requirements; one can be patenting in their teens, and the government wouldn’t have a problem with it. Additionally, one doesn’t even have to be a U.S citizen to be approved for a patent. This goes to show that anyone out there can patent, and it might hopefully inspire some of you out there to get patenting.