{"id":9515,"date":"2017-07-05T02:08:06","date_gmt":"2017-07-05T02:08:06","guid":{"rendered":"http:\/\/www.lifeandnews.com\/articles\/?p=9515"},"modified":"2017-07-06T02:10:44","modified_gmt":"2017-07-06T02:10:44","slug":"pot-with-patents-could-plant-the-seeds-of-future-lawsuits","status":"publish","type":"post","link":"https:\/\/www.lifeandnews.com\/articles\/pot-with-patents-could-plant-the-seeds-of-future-lawsuits\/","title":{"rendered":"Pot with patents could plant the seeds of future lawsuits"},"content":{"rendered":"

Craig Nard<\/a>, Case Western Reserve University<\/a><\/em><\/span><\/p>\n

It\u2019s hard to make sense of cannabis regulation.<\/p>\n

The Drug Enforcement Administration (DEA) continues to categorize marijuana as a Schedule I drug<\/a>. That means the government believes it has \u201cno currently accepted medical use and a high potential for abuse,\u201d putting it in the same league as LSD and heroin. The Trump administration has expressly voiced skepticism of marijuana\u2019s medical benefits<\/a>, with Attorney General Jeff Sessions<\/a> calling them \u201chyped.\u201d Yet, legal pot has become a multi-billion-dollar industry that stuffs the coffers<\/a> of eight states where voters have approved its legal recreational use. And nearly 30 states have legalized pot for medicinal purposes so far. <\/p>\n

\n \"\"<\/a>
\n Medical marijuana can come in pills, like these.<\/span>
\n AP Photo\/Jim Mone<\/a><\/span>
\n <\/figcaption><\/figure>\n

This burgeoning industry has also witnessed the issuance of dozens of patents<\/a> related to cannabinoids and various strains of cannabis, including ones on marijuana-laced lozenges, plant-breeding techniques and methods for making pot-spiked beverages. Some of these products contain a significant amount of THC, the psychoactive ingredient in marijuana that makes people high.<\/p>\n

As a professor who researches and teaches in the area of patent law, I have been monitoring how private companies are quietly securing these patents on cannabis-based products and methods of production, even though marijuana remains a Schedule 1 drug. An even richer irony is that the government itself<\/a> has patented a method of \u201cadministering a therapeutically effective amount of a cannabinoids.\u201d <\/p>\n

This engagement with the patent system raises several interesting questions as the legal pot industry grows and medical research on cannabis advances.<\/p>\n

Patenting living things<\/h2>\n

First of all, how can anyone or any entity obtain a patent on a living substance that grows in the wild and has been known for about 5,000 years<\/a>? <\/p>\n

In a landmark 1980 opinion<\/a>, then-U.S. Supreme Court Chief Justice Warren Burger wrote that eligibility for patent protection does not depend on whether the substance is living or nonliving. Rather, the key question is whether the inventor has altered nature\u2019s handiwork to the extent the resulting invention can be deemed a nonnaturally occurring substance. <\/p>\n

\n \"\"<\/a>
\n This U.S. patent on cannabinoids dates back to 2003.<\/span>
\n United States Patent and Trademark Office<\/a><\/span>
\n <\/figcaption><\/figure>\n

Moreover, two federal statutes expressly recognize<\/a> patent protection on plant varieties, including the 1930 Plant Protection Act, which defined the constitutional term \u201cinventor\u201d as including not only someone who created something new but also someone who is \u201ca discoverer, one who finds or finds out.\u201d<\/p>\n

Accordingly, sexually or asexually reproduced plants \u2013 whether geraniums, strawberries or roses \u2013 enjoy patent protection. The same goes for different versions, or strains, of the naturally occurring Cannabis sativa<\/em> and Cannabis indica<\/em> plants, both of which are better known as marijuana. <\/p>\n

No judgment<\/h2>\n

And so why, you might ask, does the federal government issue (and own) patents on a substance it says cannot be possessed, sold or grown without breaking the law? And can the people, companies or other entities that hold those patents enforce their rights in a federal court if someone violates them?<\/p>\n

Unlike European patent law<\/a>, which prohibits patents on inventions considered \u201ccontrary to public order or morality,\u201d U.S. patent law is amoral and nonjudgmental. <\/p>\n

U.S. courts have ruled<\/a> that the Patent and Trademark Office should treat the mundane \u2013 bicycles or can openers \u2013 and the controversial \u2013 such as birth-control devices, genetically altered mice and ammunition \u2013 the same way.<\/p>\n

That is why all strains of flowering plants, be they tomatoes or cannabis, bud on the same even playing field.<\/p>\n

However, the Patent and Trademark Office<\/a>, part of the Commerce Department, and the DEA<\/a>, a Justice Department agency, follow distinct rules and regulations regarding controlled substances.<\/p>\n

\n \"\"<\/a>
\n Medical marijuana can look just like the recreational stuff.<\/span>
\n Megaflopp\/Shutterstock.com<\/a><\/span>
\n <\/figcaption><\/figure>\n

Conflicting laws<\/h2>\n

No surprise here, but sometimes these federal rules and regulations over weed conflict. Say the owner of a patent on a particular strain of cannabis sues a marijuana grower in Colorado \u2013 which legalized pot for recreational use \u2013 for patent infringement in a federal court. <\/p>\n

Patent law is exclusively federal. Therefore, the grower cannot successfully argue that patent law doesn\u2019t matter. Yet the grower can assert that the patent is unenforceable. Not because it fails to satisfy the patent laws, but because the patent covers an illegal substance. <\/p>\n

The grower could argue that the patent owner can\u2019t stop him from doing something that a state\u2019s law permits, and that federal law forbids the patent owners from doing. <\/p>\n

The patent owner may respond that federal law gives him the right to stop others from using (or growing) their patented invention. <\/p>\n

Therefore, a patent on a particular strain of pot may be used to stop someone from growing or selling it, even in a state that has legalized weed. <\/p>\n

In theory, patent owners may sue to stop anyone from growing specific kinds of patented pot plants in any state or territory \u2013 whether or not pot is legal there. To date, this hasn\u2019t happened.<\/p>\n

Prospecting for pot strains<\/h2>\n

Finally, why would anyone patent a cannabis strain knowing that their invention is an outlawed Schedule I substance? <\/p>\n

A plausible answer is prospecting. Where there is money to be made now or in the future, entrepreneurs will take risks.<\/p>\n

Growers are already (or soon will be) acting legally<\/a> under state law in Alaska, California, Maine, Massachusetts, Nevada, Oregon and Washington \u2013 and with some limitations in the District of Columbia<\/a>. Many cannabis patent applicants are positioning themselves today for what they expect to see within the foreseeable post-Trump<\/a> future: marijuana being legal for recreational and medical use from coast to coast according to federal and state laws alike.<\/p>\n

\n \"\"<\/a>
\n Recreational pot can still be consumed the old-fashioned way \u2013 rolled into a joint.<\/span>
\n Nhungboon\/Shutterstock.com<\/a><\/span>
\n <\/figcaption><\/figure>\n

Not everybody in the cannabis industry has such high hopes (sorry), however. <\/p>\n

Smaller breeders, scientists who alter naturally occuring marijuana plants for medicinal purposes, fear that bioagricultural companies like Monsanto and Syngenta will arm themselves with cannabis-based patents and deploy their considerable economic power to position themselves as dominant forces in a promising market. <\/p>\n

\"TheFull legalization \u2013 slated to happen next year in Canada<\/a> \u2013 is probably years away on this side of the border, given the current political climate. Yet how this looming legal battle plays out will have significant consequences for innovation and the potential for cannabis-derived drugs.<\/p>\n

Craig Nard<\/a>, Galen J. Roush Professor of Law; Director, Spangenberg Center for Law, Technology & the Arts and the FUSION Certificate Program in Design, Innovation & IP Management, Case Western Reserve University<\/a><\/em><\/span><\/p>\n

This article was originally published on The Conversation<\/a>. Read the original article<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

Craig Nard, Case Western Reserve University It\u2019s hard to make sense of cannabis regulation. The Drug Enforcement Administration (DEA) continues to categorize marijuana as a Schedule I drug. That means the government believes it has \u201cno currently accepted medical use and a high potential for abuse,\u201d putting it in the same league as LSD and […]<\/p>\n","protected":false},"author":44,"featured_media":9516,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[42],"tags":[1526,1711,1524,2691,1529,1779,142,1026],"_links":{"self":[{"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/posts\/9515"}],"collection":[{"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/users\/44"}],"replies":[{"embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/comments?post=9515"}],"version-history":[{"count":1,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/posts\/9515\/revisions"}],"predecessor-version":[{"id":9517,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/posts\/9515\/revisions\/9517"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/media\/9516"}],"wp:attachment":[{"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/media?parent=9515"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/categories?post=9515"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/tags?post=9515"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}