Cannabis Patents, The Federal and State Contradictions

Cannabis patents are becoming a hot debate as some patents have already been permitted but whether they would stand up in a court of law is questionable. Federal and state patent laws often do not overlap well and with cannabis the federal government sees it as having no medical benefits and very addictive, so permitting patents on marijuana would make no sense. How can you patent a living thing anyways?

The Drug Enforcement Agency (DEA) continues to categorize marijuana as a Schedule I drug. That means the government believes it has “no currently accepted medical use and a high potential for abuse,” putting it in the same league as LSD and heroin. The Trump administration has expressly voiced skepticism of marijuana’s medical benefits, with Attorney General Jeff Sessions calling them “hyped.” Yet, legal pot has become a multi-billion-dollar industry that stuffs the coffers of eight states where voters have approved its legal recreational use. And nearly 30 states have legalized pot for medicinal purposes so far.

As a professor who researches and teaches in the area of patent law, I have been monitoring how private companies are quietly securing these patents on cannabis-based products and methods of production, even though marijuana remains a Schedule 1 drug. An even richer irony is that the government itself has patented a method of “administering a therapeutically effective amount of a cannabinoids.”This burgeoning industry has also witnessed the issuance of dozens of patents related to cannabinoids and various strains of cannabis, including ones on marijuana-laced lozenges, plant-breeding techniques and methods for making pot-spiked beverages. Some of these products contain a significant amount of THC, the psychoactive ingredient in marijuana that makes people high.

This engagement with the patent system raises several interesting questions as the legal pot industry grows and medical research on cannabis advances.

First of all, how can anyone or any entity obtain a patent on a living substance that grows in the wild and has been known for about 5,000 years?

In a landmark 1980 opinion, then-U.S. Supreme Court Chief Justice Warren Burger wrote that eligibility for patent protection does not depend on whether the substance is living or nonliving. Rather, the key question is whether the inventor has altered nature’s handiwork to the extent the resulting invention can be deemed a nonnaturally occurring substance.

Moreover, two federal statutes expressly recognize patent protection on plant varieties, including the 1930 Plant Protection Act, which defined the constitutional term “inventor” as including not only someone who created something new but also someone who is “a discoverer, one who finds or finds out.”

Accordingly, sexually or asexually reproduced plants – whether geraniums, strawberries or roses – enjoy patent protection. The same goes for different versions, or strains, of the naturally occurring Cannabis sativa and Cannabis indica plants, both of which are better known as marijuana.

And so why, you might ask, does the federal government issue (and own) patents on a substance it says cannot be possessed, sold or grown without breaking the law? And can the people, companies or other entities that hold those patents enforce their rights in a federal court if someone violates them?

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