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Emilio Cazares is an associate in the Intellectual Property Practice Group in the firm's San Diego (Del Mar) office.

We previously explored the applicability of trade secret protection to cannabis-related inventions. Here, we provide an overview of patent trends in the cannabis industry and how cannabusinesses can use patents to protect their technological, agricultural, genetic, or other innovations. In short, cannabis-related inventions may be patentable and cannabusinesses should work with counsel to identify which innovations may benefit from patent protection.

The cannabis plant (“marijuana”) remains a Schedule I drug under federal law, despite the increasing number of states legalizing cannabis. However, there is no express legality requirement for patent eligibility. So while the actual practice or use of a patented cannabis-related invention may be illegal under federal or some state laws, such illegality should not preclude issuance of a patent, if all of the requirements of patentability are met. In fact, the cannabis-related patent landscape has become increasingly crowded over the past five years with companies staking their early claims to growing methods, delivery methods, supply chain management, extraction techniques, vaporizers, medical treatments, pharmaceutical compositions, and more. Further, the number of jurisdictions legalizing cannabis is increasing, signaling the need for cannabis stakeholders to consider developing strategic domestic and foreign patent portfolios.
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This post originally appeared as an article in Cannabis Business Executive on December 5, 2019.

A cannabis product business is no simple venture. Cannabusinesses have to innovate to remain competitive just like any other company, but in an industry plagued by complex and changing federal and state regulations of marijuana (aka cannabis). At the heart of every innovation lies potentially protectible intellectual property (IP) rights and that is no different in the cannabis industry. In our two-part article, we provide cannabis entrepreneurs with an overview of the IP protections available to them for their innovations. In Part I, we discuss trade secret protection. In Part II, we will cover patent protection. In both parts, we will address choosing between trade secret and patent protection.
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