{"id":6127,"date":"2019-02-17T13:26:10","date_gmt":"2019-02-17T17:26:10","guid":{"rendered":"http:\/\/ncjolt.org\/?p=6127"},"modified":"2020-06-04T20:52:27","modified_gmt":"2020-06-04T20:52:27","slug":"hardly-stoked-the-harsh-reality-of-patent-law-in-the-cannabis-industry","status":"publish","type":"post","link":"https:\/\/journals.law.unc.edu\/ncjolt\/blogs\/hardly-stoked-the-harsh-reality-of-patent-law-in-the-cannabis-industry\/","title":{"rendered":"Hardly Stoked: The Harsh Reality of Patent Law in the Cannabis Industry"},"content":{"rendered":"\n

Without a doubt, the legal\nmarijuana business has been booming ever since recreational\nuse became legal<\/a> in the United States in 2012. Currently, nine\nU.S. states as well as the District of Columbia<\/a> allow both\nrecreational and medical use of marijuana, twenty-one states allow medical use\nonly, and sixteen allow the medical use of as CBD (or cannabidiol, a\nnon-psychoactive component of marijuana). <\/p>\n\n\n

Within the next ten years, legal\nmarijuana spending is projected to reach $57 billion worldwide<\/a>, with\n67 percent of those sales consisting of recreational use and the remaining 33\npercent of medical use.<\/p>\n\n\n

However, the road is far from\npathed for cannabis industry entrepreneurs\u2014particularly\nwhen it comes to intellectual property rights<\/a>. On one hand, IP\nlaws hinder the opportunity for monetization<\/a>, and few patents within\nthe industry exist as a result. On the other, there\nis also significant misunderstanding surrounding the available options within\nin IP<\/a> for cannabis entrepreneurs, many of which stem from the\ngeneral public\u2019s assumption that because recreational and medical marijuana are\nnot legal nationwide, there is no legal path for IP rights. <\/p>\n\n\n

For starters, marijuana\nis still illegal at the federal level<\/a>. The controlled Substances Act,\ndespite emerging consensuses to the contrary, still treats cannabis as Schedule\nI drug<\/a>, thus prohibiting possession. Adding to the tension, in\n2018 Attorney General Jeff Sessions gave federal prosecutors permission to try\ncannabis cases<\/a> in states that had already legalized it, overturning\nthe Obama-era\u2019s lax take on marijuana.<\/p>\n\n\n

In the patent world, there are\ncurrently about sixty active patents in\nthe U.S.<\/a> for cannabis or cannabis-related inventions, including\nmethods for hydrogenating oil, specific man-made cannabis plant strains, and cannabis-infused\nmilk products. Although not an extraordinary quantity, the diversity of these\npatents speaks to the wide applicability of patent law with regard to the\ncannabis industry. But that the number of active patents would multiply were it\nnot for the illegality of cannabis at the federal level. <\/p>\n\n\n

Plant patents<\/a>\nare also an option. They\u2019re also incredibly hard to get. <\/p>\n\n\n

Plant patents extend to living organisms<\/a>, as long as they have been modified by human intervention and are not merely discovered\u2014a category which owes its existent to the landmark Diamond v. Chakrabarty case. Thus, an individual can only file patents over those \u201cnew\u201d plants<\/a> that can be recreated via \u201casexual reproduction,\u201d as on not occurring via typical, natural pollination. The problem is that cannabis plants are naturally sexually reproduced\u2014therefore, the onus is on the individual seeking patent protection<\/a> to prove that the plant in question can be duplicated via asexual reproduction and does not naturally exist as is. This is a high bar to clear<\/a>. Thus, cannabis patents face two challenges. Because cannabis is still illegal federally, the general public who have not familiarized themselves with the USPTO probably think it is illegal to even file such applications\u2014after all, the USPTO is a government agency. But even for those who are aware of the patent law\u2019s flexibility, plant patents are hard to come by, stifling the creative entrepreneurs creating new strains of cannabis. <\/p>\n\n\n

Chelsea Pieroni, 11 February 2019<\/p>\n","protected":false},"excerpt":{"rendered":"

Without a doubt, the legal marijuana business has been booming ever since recreational use became legal in the United States in 2012. Currently, nine U.S. states as well as the District of Columbia allow both recreational and medical use of marijuana, twenty-one states allow medical use only, and sixteen allow the medical use of as …<\/a><\/p>\n","protected":false},"author":1,"featured_media":6128,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":[],"categories":[51],"tags":[],"_links":{"self":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/6127"}],"collection":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/comments?post=6127"}],"version-history":[{"count":1,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/6127\/revisions"}],"predecessor-version":[{"id":6852,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/6127\/revisions\/6852"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/media\/6128"}],"wp:attachment":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/media?parent=6127"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/categories?post=6127"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/tags?post=6127"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}