Can You Patent Cannabis if it is Not Federally Legal

If you are worried about not getting your cannabis plant patent because of cannabis being still illegal as a Schedule 1 controlled substance under federal jurisdiction in the United States, we have good news for you:

A patent just requires that what you invented qualifies as being new, not obvious and well described, it does not require it to be legal. 

This may be one of the biggest differences between trademark and patent regulations regarding cannabis too.

Types of Cannabis Patent

There are two main types of cannabis patents you could apply for:

• The utility patent,  granted to those who want to protect a novel invention that is new and useful.
• The plant patent applied for by someone who invents or discovers a new plant, not found naturally in the wild, to protect that plant and its direct progeny.

What is a Cannabis Plant Patent

A plant patent is an intellectual property right that protects a distinct and new variety of plant, it is focused on a single plant and its direct descendants, ensuring the inventor protection from others reproducing the plant, and using or selling the plant or any of its parts.

The inventor must prove that they have altered the plant to the extent the result is considered “non naturally occurring substance.”

Under plant patents, you can patent strains of cannabis. The inventor is obligated to prove that, via growing processes, they discovered or created a strain that is not naturally occurring, and different from other existing plants.

Title 35 United States Code, Section 161:

Whoever 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, may obtain a patent therefor, subject to the conditions and requirements of this title.

Requirements to apply for a cannabis patent

The requirements to achieve patentability are:

• The plant has to be invented or discovered in a cultivated state, and asexually reproduced.
• The plant is not a plant which is excluded by statute, where the part of the plant used for asexual reproduction is not a tuber food part.
• The inventor named for a plant patent application has to be the person who actually invented the claimed plant
• The plant has not been patented, on sale, or available to the public prior to the effective filing date of the patent application
• The plant has not been described in a U.S. patent or published patent application;
• The plant differs from known, related plants by at least one distinguishing characteristic, which is more than a difference caused by growing conditions or fertility levels, etc.; and
• That the invention would not have been obvious to one having ordinary skill in the art as of the effective filing date of the claimed plant invention.

What is a Utility Patent

Utility patents are granted to those who invent or discover a new process, machine, article of manufacture; or any new improvement of these. In order to be granted a patent, the invention must be:

• useful
• Novel
• Non-obvious

You can file a utility patent regarding a particular plant, a formulation or substance, or a growing or manufacturing process.

How deep does the protection of cannabis patent go?

How deep the patent goes will always depend on  what you are trying to protect.

For example, if you want to protect a new cross you would have to describe where and how you grew it, but there is no need to recite the soil conditions and you are not limited to those soil conditions for protection.

But if you want to patent a cultivation technique that, you discovered, makes one terpene dominant in many different genetic backgrounds, you’d have to go into a lot of detail on that technique, and prove its effectiveness. In either cases you should be able to get a patent.

How Long does a Cannabis Patent Lasts

A cannabis patent will last the same as any other type of patent. They last 20 years since the moment the patent is registered.

Cannabis Patent Application requirements

A cannabis patent application for both plant and utility patents must contain specifications of:

• The cross,
• Description of phenotype, botanical features  and the characteristics which distinguish that plant over known plants,
• Pictures of the plant, they can be either photographic or others, like permanent watercolor renderings,
• Many states require a certificate of analysis,

Most Common Cannabis Patents

The are multitudes of cannabis patents in the US Patent Office’s database, the most common ones include:

• Plants and strains and the methods of cultivating them;
• Methods of processing cannabis plants;
• Medical uses of cannabis in the use of treating diseases and pain;
• Extracts, oils, food, supplements, cosmetics, beverages, veterinary products, etc.

Don’t miss out on our Marijuana Legalization Map where you can browse the current status of laws in every state in the United States and see all our posts on each of them.

​Check Out:

• Tom Howard at CannabisIndustryLawyer.com
• Miggy at Cannabis Legalization News

Interested in coming on as a guest? Email our producer at lauryn@cannabislegalizationnews.com.