The advent of the legal cannabis industry has spurred innovation across a broad range of the arts and Flener IP & Business Law, always up for new challenges, has easily kept pace with clients in the cannabis and related industries from not only Illinois, where by January 1, 2020, the State laws have legalized cannabis for recreational adult use, but in fact, all over the United States and Canada. FLIP clients are sophisticated, and FLIP is honored to support and partner with each, witnessing domination at the top of this competitive landscape.
Despite still being classified as a Schedule I controlled substance, federal law in the United States does not prohibit the patenting of illegal substances. Unlike Federal trademark laws, there is no question that a useful invention is appropriate subject matter for patent protection even if industrial applicability is in the cannabis industry, or a useful cannabis plant variety, or a composition which includes essential oils or compounds and ingredients from the cannabis plant itself such as tetrahydrocannabinol (“THC”).
A plethora of cannabis industry specific inventions continue to be issued from the United States Patent Office. The launch of research and development surrounding the cannabis plant has provided opportunity for new industries, inventions, and ancillary businesses. For instance, though electronic cigarettes had already been invented for some time, the application of vaporization to e-liquid containing particular cannabis produced molecules offers an opportunity to hone in on appropriate temperature parameters for vaporization of molecules in the e-liquid without toxic effects or burning.
Products and processes involving preparing, processing, composing and providing e-liquid supporting the suspension and vaporization of essential oils and cannabis related molecules, versus compositions which contain nicotine, is an industry specific endeavor leading to new inventions. For the first time, a cannabis plant was awarded a utility patent under United States Patent No.: 9,095,554 (“the ‘554 Patent). The ‘554 Patent is 145 pages and is for the “breeding, production, processing, and use of specialty cannabis”. This patent is directed towards a particular strain of cannabis. Prior to that patents were issued on a method of using a strain, e.g. United States Patent No.: 6,630,507, awarded in 2003 to the United States government, for a strain of non-psychoactive cannabinoids, but not for patents being issued is a direct result of research in the cannabis industry, a never before attempted endeavor.
Though inventions related to cannabis are not specifically banned by patent laws, pursuing patent protection should be carefully weighed against business goals. A U.S. utility patent is good for twenty (20) years and fifteen (15) years if a design. The incredible pace with which innovation is proceeding in the cannabis space is driven by the fervor with which companies are researching and developing new inventions. Similar to the computer software industry, however, a patent for an invention in this more and more crowded field, may be obsolete by the time it is patented and is enforceable as a result of the lighting speed with which innovation is advancing. On the other hand, owning patents in an as yet federally illegal industry provides opportunities for licensing, and can add value to a company.
For example, a patent on a new strain of cannabis gives an owner a monopoly on that strain for twenty years, excluding everyone else from making, using, selling, importing and exporting the same. Some examples of patents that are being issued related to the cannabis industry include:
- Cannabis Processes: Cultivation methods, Propagation and breeding methods, Techniques for extracting cannabis oil;
- Cannabis Devices: Cultivation lamps, Harvesting equipment, Sorting devices, Paraphernalia;
- Manufactured Cannabis Products: Cannabis-infused products (e.g., food, beverages, health items, fertilizer), Cannabis oils, Paraphernalia; and
- Cannabis Compositions: Medications, Pharmaceuticals, Hybrids, Artificial recreations.
FLIP counsels companies who are just establishing an intellectual property budget and entering the patent space and is able to see them through IPOs and public/private offerings. The global attitude towards cannabis cannot be ignored as each market paves the way to legalization and innovation in the cannabis realm promoting research and advancement in this new sector.
