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article imagePatent laws could pose a challenge to the cannabis industry

By Karen Graham     Jun 26, 2019 in Business
Inconsistent federal and state cannabis laws are leading to confusion for lawyers and cannabis companies when it comes to patents and trademarks, a panel on cannabis intellectual property at the NYC Bar Association said on Tuesday.
“This is not a black and white issue,” said Ryan S. Osterweil, an attorney with Day Pitney LLP, a Connecticut based law firm, reports Cannabis Wire. “We need to provide diligent, competent representation and we want to do that in the best way possible without violating the laws ourselves.”
The questions raised by the NYC Bar Association pertain to the fact that the US Patents & Trademarks Office (USPTO) only approves trademarks for products and services that are considered lawful. In the United States, cannabis is still an illegal drug at the federal level.
Interestingly, there are no restrictions for patents. The USPTO has been issuing cannabis-related patents since 1942, according to Forbes. Close to 1,500 cannabis-related patents that have been filed, with more than half filed in the last 25 years.
Close to half of the requests were approved and some of those have expired, leaving about 600 currently active cannabis-related patents. There are 332 patents that include the word cannabis, 309 for THC, and 181 for CBD, according to data compiled so far by James R. Major, an attorney with the New York-based Norris McLaughlin, P.A.
Some people may be surprised to know that the U.S. government holds a patent for the use of non-psychoactive cannabinoids as antioxidants and in treating certain neurological diseases.
Tilray grow room
Tilray grow room
Tilray Inc.
What types of patents are being issued?
David Cohen, Ph.D., an independent patent agent in Oakland, California says there are basically three categories of cannabis patents being issued and they frequently overlap.
The categories include: (1) cannabis compositions, drug formulations, and methods of preparation; (2) characterization of cannabis compounds in terms of how they engage with human endocannabinoid receptors; and (3) methods of treating diseases with cannabinoids.
Based on the three categories, officials are looking at how the many cannabinoid compounds interact with the so-named endocannabinoid receptors present in cells of the human body. It didn't take too long for the cannabis industry to figure out the main compounds in cannabis, how to extract them and how to make them.
However, patenting THC, CBD or their mixtures and varieties also creates a problem because these are naturally occurring substances - and they cannot be patented under the law. So, there are still more questions than answers when it comes to cannabis patents.
William J. McNichol, Jr., Adjunct Professor at Rutgers University School of Law, predicts that “the USPTO’s willingness to grant cannabis patents is unlikely to be matched by a willingness of the Federal Courts to enforce cannabis patents.”
More about Cannabis, petents, Legality, federal laws, patent infringement
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