Cannabis Law Prof Blog

Editor: Franklin G. Snyder
Texas A&M University
School of Law

Saturday, September 16, 2017

US POT Meets the USPTO: Can Marijuana Strains Be Patented?

USPTO or US POT? Protecting a marijuana brand is likely one of the first things a startup thinks about early on in the business process. But what startup marijuana companies may want to consider is the possibility of patenting their cannabis strains. While it's unclear whether the United States Patent and Trademark Office ("USPTO") will issue a patent for marijuana, some companies have submitted applications with the hope that it meets the standard patent requirements for issuance.

The USPTO allows for plants to be patented, such as strawberries, peanuts, and roses. Under the Plant Patent Act of 1930, the USPTO grants patents to "those that have invented or discovered and asexually reproduced a distinct and new variety of plant." These patents last for twenty years from filing the application, which is enough time for the inventor to profit from their plant invention before being undersold by an imitation. For this reason, startups may want to consider looking into the patent application procedure.

Before I mentioned how a startup might concern itself with branding. Well, unfortunately, marijuana-related trademark applications are likely to be denied registration by the USPTO. Thus, often the only protection a marijuana business can attain for their brand is a state trademark, which doesn't do anything for protecting their company brand across state lines. However, if a company were to acquire a patent for their strain, it would have rights in all fifty states. One commentator compares and explains these rights:

But even if these patents issued, what could the prosecuting party actually stop someone else from doing? The names of the plants themselves are not patented, but the genetics are. If I create a new strain and call it "Pagan Feast" and got a patent for it, I would not be able to stop someone in a state where I did not have any trademark rights to Pagan Feast from using the Pagan Feast name for a different marijuana strain. However, I would be able to use my patent to stop someone in all fifty states from selling my specific genetic product under any name. If I wanted to have exclusionary rights regarding the name itself, I would need to obtain trademark protection in as many states as possible, which, unlike patents, requires that I actually be doing business with that name in each state in which I want protection.

It seems that it's at least possible (while still a little unclear) to get a patent on a marijuana strain. For example, Patent No. 9095554 was granted in August of 2015 to weed growers in California; this was the first patent issued for a marijuana strain that contained "significant amounts" of THC.

The legalization of marijuana may be on its cusp, and plant-growers have been fast to submit their patent applications with the hope that legalization is near. Startups would be wise to follow their lead.

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