Patents on illegal goods and services are not precluded from patent protection in the
same way that federal trademarks are unavailable. Patents simply do not face this
restriction and are not by their very nature beyond the reach of goods or services that
are federally restricted. In fact, did you know that the federal government applied for and
obtained a cannabis-related patent? The USPTO issued US Patent No. 6,630,507,
which claims methods of treating diseases comprising administering cannabinoids.
That certainly lends credibility to the value of these new cannabis technologies and the
potential business opportunities.
In order for an idea to be patented, the idea must be new, non-obvious, sufficiently
articulated by the inventor, and provide a certain threshold of utility to society. Patent
law prohibits patent protection for naturally existing products under 35 U.S.C. §101.
That make sense. If something already existing in nature, the inventor did not invent
anything new. Sure, he or she discovered it, but we can’t award him or her a monopoly
on something that existed in nature. However, we can award a patent for a novel use or
application of the plant and its components such as methods of treating or ameliorating
diseases or symptoms of disease (e.g., epilepsy or chronic pain) or compositions (e.g.,
topical creams or smoking products). We can also award a patent for novel ways of
processing the naturally existing plant to derive component parts that can be included in
other products such as methods of selecting cannabis strains or extraction and
processing improvements. We can even award a patent for novel devices and
apparatus used in the cultivation, processing, dispensing and using of cannabis and
CBD (e.g., vaporizers or, nebulizers). We can even patent new cannabis strains or
modified cannabis. Plant patents “may be granted to anyone who invents or discovers
and asexually reproduces any distinct and new variety of plant.” “Asexually propagated
plants” are defined by the USPTO as “those that are reproduced by means other than
from seeds, such as by the rooting of cuttings, by layering, budding, grafting, inarching, etc.
Living subject matter is patentable if it undergoes a sufficient amount of genetic
altering and engineering.
Multiple types of patent protection for a single product are also available. For example,
design patents may be obtained to protect the ornamental features of a new and non-
obvious design for bottles, delivery devices, or packaging.
If you are a cannapreneur with innovations in the cannabusiness section, contact our
patent team to discuss whether patents can be strategically leveraged for your
business. This is big business and there are opportunities everywhere. Opportunity is
knocking at your door? Will you answer?