Patent Law Principles and Their Potential to Change the Cannabis Industry

Patent Law Principles and Their Potential to Change the Cannabis Industry

When it comes to protecting technological innovation and achievements, savvy businesses and inventors typically rely on patents to protect their hard work, research, development and investments. Unfortunately, many cannabis businesses do not realize that their marijuana-related innovations can be patented as well, even though marijuana remains illegal under federal law. In fact, as social views on the use of cannabis continue to rapidly change, legal regulations and restrictions will also change, especially since cannabis has been shown to have many practical uses beyond just recreational use. Importantly, it is likely that there are many more useful applications for cannabis that have yet to be discovered and knowing the basics of patent law can help inventors of cannabis-related products know when they should seek protection for their innovations in this rapidly growing field.

Why Businesses Need Patents

Obtaining a patent is an important intellectual property right for a business, as it provides the ability to enforce their rights in court against any infringer, no matter the state they reside or operate in, thus securing their investment and hard work.

There are three types of patents in the United States used to protect inventions:

  1. Utility patents: A utility patent includes machines, processes, manufactured articles, and compositions of matters.
  2. Design patents: A design patent covers the ornamental features (i.e., look and feel) of a manufactured good.
  3. Plant patents: A plant patent may be obtained for new plant varieties that are stably reproduced by asexual propagation.

The History Behind Patent Law

To better understand the juxtaposition of patent law, innovation and cannabis, a brief history is in order. First, one of the main principles of patent law, as outlined in the U.S. Constitution, is to promote the progress of science and useful arts for the benefit of the public. This is achieved by balancing the interests of inventors on one hand and the interest of the public on the other. Inventors are rewarded a limited monopoly (i.e. a patent) on their invention (i.e. a solution to a specific technological problem) in exchange for disclosure, leading directly to the progress of science and useful arts for the benefit of the public. Thus, a patent is a set of exclusive rights granted to an inventor by the federal government for a limited time in exchange for detailed public disclosure of an invention.

The Controlled Substances Act (CSA) was enacted in 1970 and established the framework by which the federal government regulates the use of controlled substances such as marijuana for legitimate medical, scientific, research, and industrial purposes, and for preventing such substances from being diverted for illegal purposes. The CSA assigns various plants, drugs, and chemicals (such as narcotics, stimulants, depressants, hallucinogens, and anabolic steroids) to one of five schedules based on the substance’s medical use, potential for abuse, and safety or dependence liability. The five schedules of the Controlled Substances Act (CSA) are as follows:

Schedule I

Substances in this schedule have no currently accepted medical use in the United States, a lack of accepted safety for use under medical supervision, and a high potential for abuse.

Schedule 2

The drug has a high potential for abuse. The drug has a currently accepted medical use in treatment in the United States or a currently accepted medical use with severe restrictions. Abuse of the drug may lead to severe psychological or physical dependence.

Schedule 3

The drug has a potential for abuse less than the drugs in Schedules 1 and 2. The drug has a currently accepted medical use in treatment in the United States. Abuse of the drug may lead to moderate or low physical dependence or high psychological dependence.

Schedule 4

The drug has a low potential for abuse relative to the drugs in Schedule 3. The drug has a currently accepted medical use in treatment in the United States. Abuse of the drug may lead to limited physical dependence or psychological dependence relative to the drugs in schedule 3.

Schedule 5

The drug has a low potential for abuse relative to the drugs in Schedule 4. The drug has a currently accepted medical use in treatment in the United States. Abuse of the drug may lead to limited physical dependence or psychological dependence relative to the drugs in schedule 4.

About the Drug Enforcement Agency

The Drug Enforcement Agency (DEA) is responsible for enforcement of the CSA and may initiate proceedings to change a drug’s schedule or to add or erase any certain drug from a certain schedule. Currently, the DEA lists marijuana as a Schedule I substance (i.e. those drugs that have no medical value and display the greatest potential for abuse). Other Schedule I drugs include heroin, ecstasy and LSD, while substances like cocaine and methamphetamine rank one level lower, as Schedule II substances.

As soon as marijuana was first classified as a Schedule I substance, advocates started fighting to “reschedule” it to a lower tier. Their argument is that this classification is not justified because the cannabis plant clearly has many current, accepted and proven medical uses in the United States, along with many other types of uses and applications which have and will continue to significantly benefit society.

The Many Uses of Cannabis

Hemp-type products are among the oldest industries in the world, and it was entirely legal in America for approximately 162 years until it’s demonization in the 1930s. Cannabis is a very versatile plant that can be found in:

  • Building supplies: The cannabis plant is used to make 'hempcrete,' a stronger, lighter, and more environmentally friendly version of concrete. Hemp fibers are extremely strong and durable and are a good replacement of wood in creating durable and breathable homes. It is also used to make insulating material.
  • Plastic: Plastic can be manufactured from cannabis, and hemp-based plastics are, in fact, more easily recycled and degrade at a faster rate than traditional plastics. They can be used for making practically anything - soda cans, CD cases, shower curtain liners, furniture and even car parts.
  • Fuel: Hempoline isn't a word from the Mad Max movies, it's another name for biodiesel made from hemp. Different types of biofuels can be made from the oils in hemp seeds and stalks.
  • Soil and water purifier (industrial hemp from the cannabis plant can be used to purify wastewater, such as sewage effluent, as well as excessive phosphorus from chicken litter, or other unwanted substances or chemicals. In fact, hemp is being used to clean contaminants at one of the most radioactive and toxic places on the planet - The Chernobyl Nuclear Disaster site.
  • Weeding: You can literally use “weed” to get rid of other annoying pesky weeds in your soil. Hemp is very effective at killing tough weeds thanks to its height and density, which prevents pooling of weed seeds in the soil. This is especially significant as it allows farmers to refrain from using potentially harmful herbicides.
  • Medicine: Cannabis can be used in the treatment of a wide range of medical ailments. Correct and medically supervised cannabis usage can help with chronic pain, nausea, insomnia and anxiety, and that's just the tip of the iceberg.
  • Cosmetic Products: Hemp is also used in products like herbal moisturizer, body butter, shampoos and conditioners. They use organic hemp seed oil along with the other necessary ingredients to produce skin-friendly grooming items.
  • Batteries: The way we think about how we store energy is transforming, and cannabis may be able to spur things along even faster. AlterNet reports that researchers are finding that cannabis may lead the way to producing more efficient supercapacitors. The actual engineering is a bit complicated, but basically involves the creation of nanosheets from hemp fibers, in the same way scientists have been able to use graphene in the past. Hemp provides a huge advantage due to its inexpensiveness, as it can cost thousands less than graphene or similar materials. As hemp becomes more socially acceptable to work with, exploration into the potential technology should only increase in scope, and hopefully a viable technology will come out of it.

Hemp can also be found in other everyday items such as:

  • Cloths and fabrics
  • Canvas
  • Sails
  • Food and drinks
  • Ropes
  • Paper

Not only can the cannabis plant be used to make such things as rope, paper, sails, canvas or clothing, it can also be used to make pharmaceutical products for treating diseases. Ironically, the federal government itself obtained a patent (U.S. Patent No. 6,630,507) in 2003 on cannabinoids that are used as antioxidants and neuroprotectants for treating certain neurological diseases. Specifically, the ‘507 patent was granted to the U.S. Department of Health and Human Services, a Cabinet-level department of the U.S. federal government created to protect the health of all Americans and provide essential human services. Its motto is "Improving the health, safety, and well-being of America" – a motto very similar to the purpose and motto of patent law: “promote the progress of science and useful arts” for the benefit of the public. Notably, following the DEA’s inaction on rescheduling marijuana from a Schedule I substance, the ‘507 patent became increasingly internet-famous after legalization proponents made sure the DEA knew of its hypocrisy pertaining to “no accepted medical use” for cannabis. In effect, the very same federal government that assigned marijuana as a Schedule I controlled substance under the CSA for having no current accepted medical use ironically owns a patent for a medical use of marijuana.

Interestingly, when looking back at America’s history, urban legend has it that the Declaration of Independence, the Constitution, and the Bill of Rights were written on hemp paper. This urban legend appears to be partly true and partly false. Until 1883, 75% to 90% of all paper in the world was made from cannabis hemp fiber, which makes it likely that the original drafts of these documents were written on paper made of hemp and then copied and engrossed on parchment (a prepared animal skin, typically sheepskin, treated with lime). Parchment has long-lasting and elastic qualities, which are just some of the reasons the Declaration of Independence, the Constitution, and the Bill of Rights are in such good condition when viewed today.

Although the founding Fathers chose to memorialize the terms of the Declaration of Independence, the Constitution, and the Bill of Rights on parchment, that does not mean hemp paper is lacking in quality. Paper made out of hemp is of much greater quality than that made out of cotton. It will last hundreds of years, will not decompose and will no yellow with age. Regular paper made of wood pulp is lucky if it lasts even 50 years. Likewise, hemp paper can be recycled eight times compared to regular paper which generally can only be recycled about three times. Also, the process for making hemp paper is safer for the environment than the process used for making paper out of trees. For instance, hemp paper can be bleached and whitened with hydrogen peroxide, which doesn’t poison waterways like the chloride and bleach that is used for wood pulp paper. Furthermore, one acre of hemp can produce the equivalent of 4 to 10 acres worth of tree paper over a 20-year cycle, and hemp stalks only take four months to mature as opposed to 20 to 80 years for trees. Importantly, this eco-friendly process could eliminate the need to destroy forests, which has the potential to be a significant factor in humanity’s fight against global warming.

As more-and-more states legalize marijuana for medicinal and/or recreational use, it appears there will be an increase in patent applications filed and/or granted for cannabis technology. For example, on March 7, 2017, the U.S. Patent and Trademark Office (USPTO) granted U.S. Patent No. 9,587,212, entitled “Apparatus and Methods for Biosynthetic Production of Cannabinoids.” This invention is directed to the production and manipulation of enzymes involved in the synthesis of cannabinoids. Similarly, on August 4, 2015, the USPTO granted U.S. Patent No. 9,095,554, entitled “Breeding, Production, Processing and Use of Specialty Cannabis.” This invention is directed to strains of cannabis plants. Further, many companies are also developing different cannabis strains and filing patent applications to protect their innovations, such as Monsanto, the world’s largest supplier of genetically modified seeds and other genetically modified organisms. In the future, we will learn if this patent for treating different forms of cancer will be of great value to Monsanto and the public.

The rapidly shifting political and social views concerning cannabis-related matters in this country promise many impending changes ahead that could lead to an explosion in technological innovation from the cannabis industry as legalization continues to spread at a staggering pace. However, the potential for technological innovation from the cannabis industry, specifically in the medical field, could be advanced faster if the federal government would stop contradicting itself by listing marijuana as a Schedule I substance with no medicinal value. It’s clearly obvious that marijuana does have “current medicinal value,” especially since the federal government itself obtained a patent on cannabinoids (i.e., a class of chemical compounds found in the cannabis plant) that are used for treating certain neurological diseases. Conceivably, the rescheduling of marijuana to a lower tier could be advanced in the future by one of the main principles of patent law, which is to promote the progress of science and useful arts for the benefit of the public, rather than impede its progress.

Protect your cannabis business. Contact JRG Attorney at Law to meet with a Monterey County cannabis intellectual property lawyer at our office. We can be reached at (831) 228-5619, or you can fill out a free case evaluation form here.