{"id":3261,"date":"2020-12-24T03:33:00","date_gmt":"2020-12-24T03:33:00","guid":{"rendered":"https:\/\/imdeancarter.com\/SMK\/cannabis-patents-which-type-is-right-for-you-2\/"},"modified":"2020-12-25T21:52:46","modified_gmt":"2020-12-25T21:52:46","slug":"cannabis-patents-which-type-is-right-for-you-2","status":"publish","type":"post","link":"https:\/\/imdeancarter.com\/SMK\/cannabis-patents-which-type-is-right-for-you-2\/","title":{"rendered":"Cannabis Patents: Which Type is Right for You?"},"content":{"rendered":"
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By Jihee Ahn, Attorney at Harris Bricken<\/p>\n

It\u2019s been a little while since we\u2019ve talked about patent protection on the blog, but a recent consultation reminded me a primer on the different types of patents potentially available could be beneficial. Here in the United States, there are three broad categories of patents, all of which are governed by the Patent Act (or more formally, Title 35 of the United States Code). I\u2019ll cover each below.<\/p>\n

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Plant patent<\/strong><\/p>\n

At its base, a plant patent protects a new plant created by a person. It can be granted to anyone who:<\/p>\n

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invents or discovers and asexually reproduces any distinct and new variety of plant, including cultivated sports, mutants, hybrids, and newly found seedlings, other than a tuber propagated plant or a plant found in an uncultivated state. 35 U.S.C. \u00a7 161.<\/p>\n<\/blockquote>\n

This is the arguably easier patent to obtain (the application only requires a description \u201cas complete as is reasonably possible\u201d), but it offers limited practical protection. In a case for patent infringement, the patent holder would have to show that the defendant asexually reproduced the plant or, without using seeds. Without direct evidence of theft through eyewitness testimony or something similar, proof of infringement can be difficult.<\/p>\n

Utility patent<\/strong><\/p>\n

A utility patent covers \u201cany new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.\u201d 35 U.S.C. \u00a7 101. Utility patents offer protection for both sexually and asexually reproduced cannabis plants, as well as other formulations made from that plant. This is why it is the most common type of patent granted \u2013 in or around 2016, the USPTO estimated that up to 90% of issued patents were utility patents.<\/p>\n

The application process is much more involved \u2013 there is a much more thorough written description requirement and a new \u201cenablement requirement\u201d \u2013 the plan must enable others \u201cskilled in the art\u201d to make and use the plant. There is also the \u201cmarkedly different characteristics analysis,\u201d where the applicant has to show that the plant is not simply a natural product \u2013 the substance have \u201cmarkedly different characteristics\u201d from what\u2019s found in nature.<\/p>\n

Design patent<\/strong><\/p>\n

A design patent covers \u201cany new, original and ornamental design for an article of manufacture.\u201d 35 U.S.C. \u00a7 171. Where a utility patent protects the way something is used and works, a design patent protects the way something looks. This is largely inapplicable to the needs of the industry.<\/p>\n

While patent protection has been generally available for some time now, we\u2019ve covered why patent protection has limitations in this post<\/a> \u2014 when dealing with cannabis patents, courts might find that the illegality doctrine requires them to turn away from infringement claims because the patent-holder \u201cwould be asking a federal court to protect its illegal enterprise from the unlawful competition posed by another illegal enterprise.\u201d<\/p>\n

The good news is that in the first patent infringement case ever filed (which we covered extensively here<\/a>, her<\/a>e, her<\/a>e, here<\/a>, and here<\/a>), there was no mention of the illegality doctrine at all (at least, during its relatively short pendency). Regardless of the shortcomings, we always encourage our clients to protect their intellectual property to the greatest extent possible \u2013 if you\u2019re looking for cannabis patent protection, our intellectual property team is ready to help.<\/p>\n

Re-published with the permission of Harris Bricken<\/a> and The Canna Law Blog<\/a><\/em><\/strong><\/p>\n

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The post Cannabis Patents: Which Type is Right for You?<\/a> appeared first on Cannabis Business Executive – Cannabis and Marijuana industry news<\/a>.<\/p>\n\n

\n <\/div>\n","protected":false},"excerpt":{"rendered":"

It\u2019s been a little while since we\u2019ve talked about patent protection on the blog, but a recent consultation reminded me a primer on the different types of patents potentially available could be beneficial. Here in the United States, there are three broad categories of patents, all of which are governed by the Patent Act (or more formally, Title 35 of the United States Code). I\u2019ll cover each below.<\/p>\n","protected":false},"author":1,"featured_media":3362,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[52,51],"tags":[],"class_list":["post-3261","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-medical","category-news","has-post-title","has-post-date","has-post-category","has-post-tag","has-post-comment","has-post-author",""],"builder_content":"","_links":{"self":[{"href":"https:\/\/imdeancarter.com\/SMK\/wp-json\/wp\/v2\/posts\/3261","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/imdeancarter.com\/SMK\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/imdeancarter.com\/SMK\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/imdeancarter.com\/SMK\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/imdeancarter.com\/SMK\/wp-json\/wp\/v2\/comments?post=3261"}],"version-history":[{"count":5,"href":"https:\/\/imdeancarter.com\/SMK\/wp-json\/wp\/v2\/posts\/3261\/revisions"}],"predecessor-version":[{"id":3364,"href":"https:\/\/imdeancarter.com\/SMK\/wp-json\/wp\/v2\/posts\/3261\/revisions\/3364"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/imdeancarter.com\/SMK\/wp-json\/wp\/v2\/media\/3362"}],"wp:attachment":[{"href":"https:\/\/imdeancarter.com\/SMK\/wp-json\/wp\/v2\/media?parent=3261"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/imdeancarter.com\/SMK\/wp-json\/wp\/v2\/categories?post=3261"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/imdeancarter.com\/SMK\/wp-json\/wp\/v2\/tags?post=3261"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}