In 2020, U.S. acceptance of cannabis increased, as evidenced by legalization in an additional five states, proposed federal legalization, and designation of cannabis (if available) as material during the coronavirus pandemic. The recent reclassification of cannabis by the United Nations signals similar changes at the global level. As a result of these changes, cannabis growing in the U.S. has become a $ 14 billion industry that has sometimes been uncertain of the benefits of federal laws, including bankruptcy and trademark protection. However, the benefits of US patent laws are largely available to innovators. As shown in 2020, this also includes plant patents on cannabis.
Plant patents vs. Utility models for plants
Plant patents differ from utility models. Utility models are granted to anyone who invents or discovers a new and useful process, a new machine, a new object of manufacture or a new composition. Plant patents are granted to anyone who invents or discovers and reproduces asexually each independent and new plant variety. Plant patents were traditionally granted for useful sports that could be propagated through cloning – like an early-flowering fruit tree or a newly colored rose.
Plant patents offer much closer protection than utility models. A utility model gives its owner the right to prevent anyone in the United States from making, using, selling, offering for sale, or importing the claimed invention. A plant patent grants its owner similar rights, but only for Clones the patented system. In other words, a plant patent does not cover plants grown from seeds of the patented mother plant.
As in general, patents on cannabis plants are much rarer than patents on cannabis. Fewer than 50 applications for cannabis plant patents have been published, while thousands of applications for utility models related to cannabis have been published – including patent applications for methods of extracting oils, growing plants, vaporizing plant products, and treating diseases with specific plants or plants Formulations and compositions of certain extracts (e.g. powders, lozenges, creams) and food preparations such as cannabis and whey powder.
Only three (3) plant patents for cannabis plants had been granted by summer 2019. The first patent for cannabis plants was PP27.475 for the Ecuadorian sativa, which was granted to Steven Kubby four years ago on December 20, 2016. The second cannabis plant patent was PP30.434 for LW-BB1. It was issued on April 23, 2019 and is now owned by Green Brands LLC. A third cannabis plant patent, PP30.668 for DD-CT-BR5, was granted shortly thereafter on July 9, 2019 and is now owned by Cannagen LLC.
Also in the summer of 2019, Joel Stanley was granted a hemp plant patent PP30.639 for CW2A for the famous Charlotte’s Web strain, which is used to treat a severe form of epilepsy in children. It belongs to CWB Holdings, Inc. Hemp plants belong to the genus cannabis, but by definition contain less than 0.3% of the psychoactive compound tetrahydrocannabinol (THC).
In 2020, nine (9) patents were granted for cannabis plants. Eight of these patents were filed by the Biotech Institute, LLC, as reported earlier this year. The Biotech Institute’s patents are: PP31.535 on Lemon Crush OG, PP31.707 on Grape Lolipop, PP31.724 on Primo Cherry, PP31.752 on Cake Batter Cookies, PP31.874 on Holy Crunch, PP31.917 on Raspberry Punch , PP31.918 for Rainbow Gummeez and PP32.473 for Bihemp 050924. The ninth of these patents is PP32.318 for MR2017002 and is owned by Aurora Cannabis Enterprises, Inc.
Requirements for cannabis plant patents
Additional applications for cannabis plant patents have been filed and some are pending. However, many of these were rejected because they did not meet the requirements of the patent office and many had to be abandoned because the problems could not be resolved. The disclosure requirements for plant patents are said to be relaxed compared to utility models, but the patent examiners are demanding considerable details for cannabis plant patents.
For example, an application for a plant patent must contain a detailed botanical description of the plant, including the characteristics that distinguish it from pre-existing plants. The application must also state how and where the plant was reproduced asexually. The examiners of patents for cannabis plants need technical details about the type of propagation, a clear identification of the place of propagation and scientific descriptions of how the reported THC and CBD levels were determined.
The examiners are also special about the plant name. By law, a US plant patent is a registration under the International Union for the Protection of New Plant Varieties (UPOV) if it includes a name for the plant variety. Some of the patents issued for cannabis plants have colorful names and some don’t. If another party has a trademark for the proposed variety name, the examiner may reject the application and request that the name be changed.
In some situations it may be possible to obtain a utility model that covers cannabis plants as defined by certain characteristics, in particular genotypic characteristics. However, the twelve patents granted to date for cannabis plants confirm that it is now possible to patent a distinctive cannabis mother plant – provided that the application is properly prepared. Looking ahead to 2021, we expect further patents for cannabis plants.