We Asked a Marijuana Attorney To Share Some Wisdom On Patenting Pot

Can you really own a product of the earth?

What is the possibility, or probability of a person, government entity, or commercial enterprise obtaining a patent on marijuana strains, plants, or products?

The immediate and not entirely unreasonable answer, would be no.

The cannabis industry, like any market with the potential to generate massive revenues, is being inundated with brilliant inventors and entrepreneurs who have developed creative ways to improve the current retail sector with new product lines, and better the community. As a matter of special emphasis, cultivating and altering the marijuana plant on a genetic level to yield specific desirable traits is at the forefront of Canna innovation and as an industry practice. Operating under the assumption that the industry is heading in this direction, and that the number of organizations seeking marijuana patents will likely increase:  In what ways can these forward-thinking geneticists rely on patent law to protect their proprietary cannabis strains?

Owning a Piece of Mother Earth

After all, How can an individual claim any sort of ownership of marijuana?  While intuitive, this inclination is only partially accurate. Patents are federally granted rights of ownership that only last for a period of twenty years from the time of filing. In order for anything to be patentable, it must be novel, non-obvious, and sufficiently articulated by its inventor. Furthermore, some things are indeed explicitly precluded from obtaining patent rights, such as inventions that are deemed to be either natural phenomenon or laws of nature, or otherwise excessively abstract.

"The fundamental notion of ownership-to-control-to-value, is the essence of patent law."

The necessary consequence of an individual’s exclusive ownership of any given thing is another individual’s lack of ownership of that same thing. In the interest of earning revenues from inventions, one should want and need to own things of value. This way, the owner may control their use and dissemination in the marketplace. Via this controlled introduction, and circulation through the space, the "good" inventions generate value. 

Brett Levin / Flickr

While abstract, the fundamental notion of ownership-to-control-to-value, is the essence of patent law. And patent law, as a legal framework, allows inventors to protect their proprietary inventions from non-sanctioned use by others. Naturally, investors seeking to purchase equity in companies with new and interesting products should ensure that the unique product actually belongs (legally speaking) to the startup, before making any kind of investment. And one of the most powerful ways to demonstrate ownership is through the registration and federal granting of a patent.

The Legal Route to the Marijuana Patent

New marijuana strains obtaining patent protection are clearly the sort of “thing” that falls under the category of natural phenomenon, which indeed cannot be protected. 

However, in the seminal case of Diamond v. Chakrabarty, the United States Supreme Court looked deeply into the query of whether a living organism could ever in fact be patentable, and found that under the right circumstances, said organic thing very well may. As Justice Warren Burger explained, the potential for a living organism to be patented turns on our understanding of patent law’s central guiding principle set forth in the law: “Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therfor, subject to the conditions and requirements of this title.” 

Justice Burger understood that this law was intentionally left vague, and wide-in-scope as to allow for greater interface between inventors and the natural organisms. Finally, Justice Burger suggests that if the patent’s claim is “to a non-naturally occurring manufacture or composition of matter," the organism is no longer merely a natural phenomenon but rather a product of human ingenuity. And though this case did not explicitly contemplate the genetic engineering of marijuana, its implications for the acquisition of cannabis patents are obvious: If a geneticist were to alter and modify a strain of cannabis sufficiently, so as to render it different from marijuana in its natural form, it may very well be protected with a patent.

Unfortunately, the tactical lessons for marijuana entrepreneurs and geneticists are not so clear. What precise degree of alteration to the plant would need to be demonstrated to the United States Patent and Trademark Office (USPTO)? Well, give us a call to find out.

This post was produced in partnership with THC Legal Group, a team of marijuana lawyers specializing in marijuana law for the cannabis industry.