There are a number of ways to protect cannabis inventions, innovations and strains with U.S. and international law. Utility patents, plant patents, the Plant Variety Protection Act and trademarks are all available tools for protection. Each of these options are available for hemp (below 0.3% THC) and some are even available for those inventions and genetics above 0.3% THC.
Utility patents protect “any new or useful product, machine, manufacture, or composition of matter, or any new and useful improvement thereof.” This can protect products, grow methods, extraction methods and apparatus, devices and new solutions of cannabinoids with other substances, so long as it is new and innovative (technically referred to as novel and nonobvious). In addition, utility patents are now being issued for strains and can include aspects of selection, breeding and F1 hybrids. There hasn’t been a prohibition on cannabis patents since as early as 2001. Proper audits should be conducted at constant intervals to properly protect all innovations. Utility patent applications should be filed within one year of the public disclosure of the invention. If one seeks international protection, the application should be filed prior to any public disclosure as each country has different laws.
A seed or tissue culture deposit is required for utility patents covering unique cannabis strains, therefore, plants having more than 0.3% THC cannot be submitted into a U.S. depository. But hemp can.
A plant patent can be issued for a “living plant organism which expresses a set of characteristics determined by its single, genetic makeup or genotype, which can be duplicated through asexual reproduction but cannot otherwise be made or manufactured.” A plant patent “protects the patent owner’s right to exclude others from asexually reproducing the plant, and from using, offering for sale, or selling the plant so reproduced, or any of its parts, throughout the United States, or from importing the plant so reproduced, or any part thereof, into the United States.”
Plant patents are available for genotypes of cannabis plants regardless of THC content. Plant patents protect the asexual propagation of the plant.
Innovative cultivators invest substantial research-and-development efforts into creating unique strains. Protecting and/or licensing the plants or products produced therefrom without proper patent protection is not wise. The application must be filed within one year of the first public disclosure of the plant.
Plant Variety Protection Act
The Plant Variety Protection Act (PVPA) provides 20 years of exclusive control over new, distinct, uniform and stable sexually or asexually reproduced plant varieties. The PVPA finally extended coverage to hemp on April 24, 2019. Plants in excess of 0.3% THC are not currently applicable for PVPA protection. Similar to a utility patent, a seed or tissue culture deposit is required. Three thousand seeds must be deposited to the PVP office. Utilizing the PVPA for hemp protection is brand new and will soon be paramount for breeders.
Trademark protection for strain names
Trademarks protect brands in association with goods and services. Cannabis trademarks can prove perfectly functional for informational services protected by the First Amendment as well as state law protection. When it comes to THC or CBD goods, the issue can get more difficult. The Food, Drug, and Cosmetic Act does not afford protection to certain types of CBD products, such as foods, drinks and pet foods.
The U.S. Patent and Trademark Office also does not permit brand protection for varietals and cultivars. So how does one protect their hemp strain? First, name your unique strain with a “scientific name,” then choose your strain’s brand. Protect the brand name, which should not be similar to the varietal name, and while you’re at it, license it along with your patent protecting genotype.
Neil Juneja is the founder of Gleam Law, a multi-state, cannabis-focused law firm with clients in 40 states and on five continents. He is a registered patent attorney and has been featured in Time Magazine, Newsweek and on several documentaries for his work in the cannabis industry. He can be reached at Neil@GleamLaw.com.