Why It's Harder to Get a Cannabis Patent Than You Think

Bluntness Team

By Jeff Klingman, theBluntness Feature Writer

Intellectual property (or IP) is the foundation for any business, and something that cannapreneurs planning for long-term success are forced to keep in mind.

IP laws help ensure that everything about products you make -- from the products themselves, to the process you use to make them, and the logos you use to distinguish them -- is granted recognition and protection from anybody ripping off your good ideas and hard work.

But that requires filing for patents and/or trademarks, and a government body equipped to arbitrate any disputes that may pop up as a result.

And in the cannabis industry that becomes a bit tricky.

Cannabis businesses seeking IP rights are getting tripped up because of the federal illegality of cannabis, similar to the way that weed’s status makes it nearly impossible for them to bank at a national level.

Long story short, it’s kind of a mess.

Here’s what you should know to make sense of pot biz IP in 2019.

First, a quick IP Refresher

The official distinction between patents and trademarks, from the United States Patent and Trademark Office, the agency every cannabiz and non-cannabiz in the U.S. appeals to for nationwide IP protections, is this:

A trademark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of others. A service mark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of a service rather than goods. Some examples include: brand names, slogans, and logos. The term "trademark" is often used in a general sense to refer to both trademarks and service marks.

A patent is a limited duration property right relating to an invention, granted by the United States Patent and Trademark Office in exchange for public disclosure of the invention. Patentable materials include machines, manufactured articles, industrial processes, and chemical compositions.

Keep that in mind!

State v. Federal and ... it's complicated with trademarks

Whether weed is legal in a company’s home state or not, the USPTO has declined to consider cannabis trademarks until marijuana’s controlled substance designation is changed on the federal level. Even cannabis-themed products with no THC involved have been tricky to trademark. (MedMen’s been trying to own the term “cannabis” for use on apparel, and it’s very unclear whether or not that’ll fly.)

There’s also the risk of brush back from giant corporations who don’t consider a little added weed to be a definitional change. Hershey Co., for one, have not been shy about targeting pot chocolatiers who’ve tempted fate by offering edibles that play off the candy giant’s well-known brands.

Distinct trademark protection for weed is now primarily state-based, and subject to the individual laws of wherever protections are being sought.

Some logic problems quickly pop up. What can a booming Colorado edibles company do if the legally registered concept, name, and logo for their brand gets ripped off by a startup in newly legal Michigan? Honestly, not much (short of grassroots, social media-type shaming—a messy method at best).

Still, business owners may want to use state registration as a chronological marker for a federal claim, in advance of a not-too-distant national weed future. In mature markets, protections are growing stronger and providing other benefits too. Soon, California might allow an organic cannabis certification in line with FDA standards on produce.

But The Feds already sort of have a patent on pot

Cannabis patents, on the other hand, are federally allowed now on grounds that they might be fully allowed some time in the future.

Even the U.S. Department of Health and Human Services has held one, patent number US6630507B1 covering “Cannabinoids as antioxidants and neuroprotectants”, since 1988. Which, given the continued illegality, is kinda rich!

Of course, there’s some lingering unease as to whether state or national patents can be upheld in federal court at all. A looming judgement in the infringement case between Colorado companies, UCANN v. Pure Hemp, could be a watershed moment.

It may well determine for the first time what level of protections are available in the U.S. market and, depending on the outcome, how much big-time capital investment will continue to flow into the industry.

Stay tuned for our follow up piece that will answer the most pertinent pot IP question: Can you actually patent a super-secret, potent, mind-blowing (or medicinal) strain?

Photo via Adobe Stock