As states continue to legalize the use of marijuana, the number of plant varieties and cannabis-related products that are available for use continues to rise. Despite still being classified as a Schedule I controlled substance, federal law in the United States does not prohibit the patenting of illegal substances. As a result, you have the right to seek and secure federal patent protection for your cannabis-related creations.
If you have developed a new strain of cannabis, created a novel cannabis-related product, or devised a new technique, you may want to consider seeking a federal patent to protect your intellectual property. When you have a federal patent, you have the right to restrict or prohibit others from growing or using your creation. Attorney Stephanie Schuman and the team at Leaf Legal, P.C. can help you navigate the complex patent process before the United States Patent and Trademark Office. Call today to schedule a free consultation and learn more.
Patenting a Schedule I Drug
Federal law currently classifies marijuana as a Schedule I controlled substance. This classification means that the drug has “no currently accepted medical use and a high potential for abuse.” At the federal level, it is illegal to possess, distribute, and/or cultivate any form of the drug. Despite this, the United States still administers patent protection for unique and distinct variations of the plant. While many countries around the world refuse to patent illegal creations, the United States remains neutral. Patent laws apply to illegal substances just as they do to legal creations. In fact, the United States government even owns its own cannabis patent. As long as you can prove that your cannabis creation is unique and distinct, you can secure legal patent protection.
U.S. Patents & Protections for Cannabis Plants
Cannabis is a living, breathing, naturally-occurring plant. How is it possible to patent a living thing? In 1980, the United States Supreme Court explained that it can be perfectly fine to patent a living thing. Eligibility for patent protection simply requires an inventor create something unique that is not naturally occurring. As a result, varieties of plants and plant-products that do not occur naturally can be the subject of patent protections. You must simply alter the naturally-occurring plant in some way to create something new.
Today, a handful of federal laws enable inventors to secure patents not only on cannabis plants, but also cannabis-related processes and cannabis-related products. The three most common types of patents to which you may be entitled are (1) utility patents, (2) design patents, or (3) plant patents. All three types of patents have been issued for cannabis-specific inventions. Utility and design patents are most relevant to the cannabis industry.
Utility patents are granted under the Patent Act for the plant, its seeds, or its plant parts and for the methods to used to produce the plant, plant genes, or hybrid plant. At a minimum, patents require the subject to be new and non-obvious and to exhibit some utility. If a utility patent is granted under the Patent Act, the patent holder is granted exclusive rights for 20 years, enforceable in court.
Plant Patent Act
The Plant Patent Act offers patent protection for new cannabis plants that are bred through asexual reproduction. If you create a new cannabis plant using cuttings, grafting, and budding techniques, you may be granted legal rights in order to protect your work. The Patent and Trademark Office provides 20 years of intellectual property protection to inventors who create a new and nonobvious plant having some de minimum utility.
Plant Variety Protection Act
You may be able to secure intellectual property protection for plants that do not qualify for patent protection under the Plant Protection Act. If you breed a new variety of the cannabis plant through sexual reproduction or tuber propagation, you may be eligible for protection (similar to that of a patent) under the Plant Variety Protection Act. The Act provides 20 years of intellectual property protection to breeders who create new, distinct, uniform, and stable plant varieties.
Patenting Cannabis-Related Products and Techniques
Federal law permits the patenting of the cannabis plants themselves and the patenting of related products, techniques, and creations. Under the United States Patent Act, inventors can secure utility patents to protect new and useful cannabis-related processes, machines, articles of manufacture, and compositions of matter.
- Cultivation methods
- Propagation and breeding methods
- Techniques for extracting cannabis oil
- Cultivation lamps
- Harvesting equipment
- Sorting devices
Manufactured Cannabis Products
- Cannabis-infused products (e.g., food, beverages, health items, fertilizer)
- Cannabis oils
- Artificial recreations
If you are not sure whether your cannabis creation qualifies for patent protection, do not hesitate to contact the attorneys at Leaf Legal, P.C. for help. We thoroughly review your creation, determine whether a patent has already been awarded, and devise a persuasive patent application. Other inventors may be trying to secure patents for products, processes, or techniques similar to yours, so it is important to act quickly.
Get Help With Your Cannabis Patents
Have you created a new strain of a cannabis plant or invented a cannabis-related product or technique? If so, you may want to consider securing federal patent protection. Once you have a patent, you have the authority to prevent others from growing and/or using your unique creation. This allows you, and you alone, to realize all of the benefits of your creation.
It is important to understand that the process involved in securing a patent can be incredibly nuanced and complex. Your chances of securing patent protection are greater when you hire an experienced attorney to handle your application. Contact the attorneys at Leaf Legal, P.C. to request a consultation and learn about how we can help you protect your cannabis-related creations.