Current projections indicate that the cannabis industry will grow from $9.2 billion in 2017 to $47.3 billion in 2027. Protection of intellectual property in this space is critical, particularly as large entities have slowly started to break in. For example, Coca-Cola has been in talks with Aurora Cannabis to develop drinks infused with CBD.
However, knowing how to best protect and defend cannabis innovations can be challenging. A patent is a grant of a property right to an inventor that allows the inventor to exclude others from making, using, offering for sale, or selling an invention. The three types of patents include: plant patents, utility patents, and design patents.
The Plant Patent Act of 1930 legalized patents obtained on plants. Prior to this, plants were not able to be protected by patents, because they were considered unpatentable products of nature. After passage of the Plant Patent Act of 1930, an asexually reproduced plant can be granted a plant patent. Asexual reproduction is defined by the United States Patent and Trademark Office (USPTO) as creating a plant from part of another plant without using seeds. Plant patents can play an important role in protecting unique plant strains developed and grown by cultivators of cannabis. In addition, plant patents play a role in academic institutions to protect unique plant strains developed during laboratory research. However, these types of patents are not extremely popular in general, and less than 1% of all currently active cannabis patents are plant patents.
The most popular form of patent protection utilized in the cannabis space is the utility patent. Utility patents are commonly filed to protect methods of synthesis, compositions, processing steps, devices such as vaping devices, inhalers, transdermal, food and beverages, supplements etc. Utility patents are the most common form of patent protection for cannabis related inventions. Utility patents can be employed to protect innovations such as unique methods of extraction or synthesis as well as novel cannabis formulations such as formulations containing specific combinations of terpenes and cannabinoids.
Another form of patent protection commonly utilized to protect cannabis inventions is the design patent. Design patents are employed to protect the way something looks, and provide protection on the ornamental design of a product. Design patents can be useful in the cannabis space to protect innovations such as unique shapes of vaporizers, pipes, bongs, tinctures, and products that may feature designs that contain cannabis leaves or other similar design elements.
Design patents are a little bit different from utility and plant patents because they have a shortened patent term of 15 years, while utility and plant patents have a patent term of 20 years. However, design patents are inexpensive to maintain as no maintenance fees are due on them, they provide a less expensive application process, and they can provide a head start on both trademark and trade dress protection.
Early protection of intellectual property rights is critical to secure a competitive advantage in the marketplace and to prevent others from encroaching upon a novel space. Over the last five years patenting activity in this space has continued to increase. Top patent filers in this space include sole inventors, commercial enterprises, biopharma companies, and academic institutions. Currently in 2021, there have been 226 patents issued relating to cannabis and 550 patent applications filed relating to cannabis. Areas of innovation include the medical space, particular innovations for neurological and psychiatric problems, pain, cancer, immune health, ophthalmic, nausea, and respiratory. Other areas of innovation include compositions, with patents for compositions being filed for topical applications, oral, vaping, and buccal administration. Other invention categories include processing, devices, food and beverages, supplements, cultivation, cannabis biosynthesis, sobriety tests, compliance technology, and animals.
Other forms of protections for inventors to contemplate as part of an overall intellectual property strategy include both trademark and trade secret protection. Trademark protection is frequently employed to protect unique company and product names and logos. Trade secret protection is strategically utilized in conjunction with patent protection to protect inventions that may not be ripe for patenting. Working with well-versed patent counsel to evaluate and strategically protect cannabis inventions is imperative.