Although most people think of manufactured goods when they hear the word “patent”, U.S. law also allows you to patent new plant varieties. This includes new strains and varieties of cannabis. Under 35 U.S.C. § 163, “In the case of a plant patent, the grant shall include the right to exclude others from asexually reproducing the plant, and from using, offering for sale, or selling the plant so reproduced, or any of its parts, throughout the United States, or from importing the plant so reproduced, or any parts thereof, into the United States.” So, what does this mean? If you obtain a patent for your strain of cannabis, you have the right to stop anyone else from asexually reproducing your strain, as well as stopping any use, sales, or even offers to sell your strain within the United States.
U.S. plant patents are limited only to plants which can be asexually reproduced. Fortunately, cannabis strains typically fall into this category, although you will have to be able to prove it. In plants, asexual reproduction means reproduction which does not involve pollen being transferred from a male plant to a female plant; in other words, asexual reproduction is reproduction using cuttings, budding, grafting, etc. So, as long as you can show your new strain of cannabis can be reproduced from cuttings, by grafting, etc., you would meet this first requirement. Keep in mind that cannabis is typically sexually reproduced. So, in order to move forward with a plant patent application, you should be able to prove your plant is capable of being grown without both the male and female plants, ideally in a lab setting.
The second requirement is common to all U.S. patents: your cannabis variety must be new and be considered a non-obvious variant (when compared against already known strains). In other words, if someone else already came up with your strain – or something so close to yours that yours is considered an “obvious” variation – you will not be able to obtain a patent. Your new plant must differ from already known plants by at least one distinguishing characteristic, which must be a unique characteristic more than just what would be caused by different growing conditions. In addition to being new and non-obvious, your strain cannot be something you discovered growing in the wild, i.e., you must develop the strain yourself, rather than simply discovering it growing naturally.
The “term” (or lifetime) of a plant patent begins on the day the plant patent issues and goes for 20 years after the day the plant patent application was filed. For the lifetime of your patent, you essentially control the marketplace for your strain of cannabis. This means you can either choose to be the sole supplier, you can grant licenses to others and collect royalties from their sales, or you can sell your patent rights outright. Whichever you choose, you have exclusive control over that decision for the entire term of the patent.
The cannabis industry has grown by leaps and bounds over the past few years, with cannabis becoming legal in more states every year. As with all industries, the need for intellectual property protection is growing side by side with the growth of the cannabis industry. If you have a new strain of cannabis, or have an idea for something cannabis-related, bear in mind that patent rights in the United States are now granted on a “first to file” basis (i.e., the first party to file a patent application), rather than the previous “first to invent” basis. So, you might want to give serious consideration to consulting with a patent attorney sooner rather than later.
