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Allison Frederick
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March 30, 2014

Nowadays, when someone hears that I am from Colorado and I help plant breeder's with their patents and trademarks for their plant inventions, their next question, asked half in jest, is "are you working on patent applications for Cannabis sativa, considering marijuana smoking is now legal in Colorado?”

That leads us to wonder "How to file for a patent for Marijuana Plants?"

Perhaps if there were a state-level government patent system, then someone could file individual patents for marijuana based on Colorado state laws, but the United States patent system is a federal system and therefore, since marijuana smoking is still federally illegal, it is not possible to file for federal patent applications for marijuana plants.

It may be just a matter of time before marijuana is legal on a federal level. In which case, marijuana plants propagated vegetatively, say through cuttings, would be eligible for plant patents. As I've mentioned on this website plant patents have the advantage of no maintenance fees once the patent is granted and the patent application process for obtaining a patent is usually quicker and less cumbersome and therefore, less costs to any intellectual property professionals who may be helping to obtain patent protection. It may eventually be possible for patents that are for plants with preferred characteristics, just as one would file for any other plant.

If you have seed and propagate the plants by seed, then if it were to become legal, then you could file a utility patent application for plants. As with any utility application, you would need to submit seeds. Surprisingly, there is already at least one utility patent for Cannabis sativa, or one that pertains to its anti-oxidative properties, and perhaps even more surprisingly, the patent is owned by the US government.
Patent number 6630507, issued in 2003. The patent covers physiological elements of the plant, which is common among utility patents. Utility patents have numerous patent claims (unlike plant patents which have only one). The first claim begins with: A method of treating diseases caused by oxidative stress, comprising administering a therapeutically effective amount of a cannabinoid that has substantially no binding to the NMDA receptor to a subject who has a disease caused by oxidative stress…(1)

Should marijuana plants be allowed to be patented?

If you would like an more in-depth discussion on some of the controversy regarding patenting marijuana plants, then read the article by David Malmo-Levine  entitled Patented Pot vs. the Herbal Gold Standard, written  Wednesday, September 23 2009. This article brings up common arguments of patenting versus free access; however, I believe the article misrepresents the practical applications of patents. Patents for plants do not lock down the industry and they only restrict the use of the plants if you are only choosing to use patented plants. Utility patents can be more broad in their rights, in that they may restrict the use of certain properties and even methods of producing, but generally speaking, the patent rights are embodied within a particular plant or genome. Certainly pharmaceutical and nutraceutical companies may battle each other to create patent tickets (bundles of patent applications with common elements, often surrounding and supporting a similar technology) as it relates to medicinal properties of Cannabis sativa. However, under most situations, this would not restrict plant breeders from filing their own patents anymore than tomato breeders are restricted from filing patents for tomato plants while co-existing with patents with claims to anthocyanin related elements.

Is it possible to file a plant breeders rights application for a new marijuana?

I haven't fully researched whether plant breeder's rights applications may be obtained for new varieties of Cannabis sativa; however Malmo-Levine does claim that there is a Canadian PBR for one variety. Certainly, the UPOV act would be adopted in each country based on the existing legal precedent of the adopting country, where those country laws would prevail. That is one reason why different countries have adopted different variations of the UPOV. In that regard, at the time of this writing, it would not be possible to file for a U.S. PVP application for marijuana.

Can I trademark the name of my marijuana strain?

Another interesting questions and one which unfortunately falls under the same logic, is whether or not U.S. trademark protection is available for names and brands associated with marijuana products and businesses. On the website, Freaknomics.com, writers Kal Raustiala and Chris Sprigman report that in 2010, the United States Patent and Trademark Office established a trademark class (a commercial category of goods or services to which trademark protection applies, eg. shoes) for medical marijuana considering several states had adopted legislation allowing for the use of marijuana for the treatment of medical conditions. According to Raustiala and Sprigman, once the US Congress caught wind of this new trademark category, they shut it down, presumably under the pretense of the still illegal status of marijuana on a federal level. Apparently, no trademarks were issued in the interim.

There is the question as to whether states will allow for state trademarks. For example, Colorado has its own trademark registration system, wherein you can file a trademark application. So, the question will be, will they allow for these trademarks and will the courts support this decision by honoring claimed rights? Perhaps it is worth a telephone call to your state's trademark office if your state has legalized marijuana.

References:
(1)Patent Number 6630507, entitled "Cannabinoids as antioxidants and neuroprotectants," has a corresponding Canadian, German, and European Union application publication. Retrieved on March 29, 2014 from
https://www.google.com/patents/US6630507?dq=patent:6630507&hl=en&sa=X&ei=fwI4U5yoHMntrQHozIHoDA&ved=0CDcQ6AEwAA
(2)Malmo-Levine, D. (Wednesday, September 23 2009). Patented Pot vs. the Herbal Gold Standard. Retrieved on March 29, 2014 from http://www.cannabisculture.com/node/19879

(3)Raustiala, K. & Sprigman, C. (August 22, 2012). Can Marijuana “Brands” Be Legally Protected Against Copying? Retrieved on March 30, 2014 from http://freakonomics.com/2012/08/22/can-marijuana-%E2%80%9Cbrands%E2%80%9D-be-legally-protected-against-copying/