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.