Seedsman Blog

Cannabis Patents – Do You Need One?

As entrepreneurs and creators, we are forever striving to cultivate the ever-elusive quality of ingenuity.  Indeed, it would not be hyperbolic to suggest that this intangible force is truly the lifeblood of any successful business and the cannabis industry is no exception to this great truism.

When a cannabis entrepreneur or startup develops something truly unique and extraordinary, it is critical to control the proprietary use and ownership of this breakthrough method and/or technology with a Cannabis Patent.

Maintaining an advantage over companies vying for the same market share will ensure the sustained and continued growth of the burgeoning business.

The Contours of a Cannabis Patent

Previously, we’ve discussed the ostensibly counter-intuitive proposition that genetically modified cannabis can at least in theory qualify for a patent.

Can something that comes from the earth be owned by a single person?

As it turns out, the answer is (a nuanced) yes; as long as the new strain of cannabis is sufficiently modified, it can theoretically obtain patent protection.

But how should a cannabis entrepreneur think about acquiring a patent on a product that does not touch the plant itself but is still nevertheless ancillary to the business (a vaporizer capable of yielding a 10x THC output for example?).

Well, pretty much the same way. We will return to this more after reviewing what precisely a patent is and what it covers.

As a general matter, patents are granted to those inventors whose ideas are novel, non-obvious, useful and sufficiently articulated by the inventor.  Patents remain valid for a period of 20 years, an adequate amount of time to allow the inventor to profit from his unique idea without monopolizing the technology indefinitely.

Patents, as you may recall, are federally granted licenses for a given piece of intellectual property.  The cannabis patent provides the owner with a set of federally granted rights for making, using and selling the patented property.

For the litigious entrepreneur, a patent may be viewed as a license to sue.  Competing companies unlawfully using and selling the patented technology are infringing the rights of the patent holder. The infringer may therefore be taken to court and subjected to hefty financial penalties.

Hopefully, it is now apparent to the cannabis entrepreneur just how valuable a patent can be in his arsenal of company assets. Beware, do not cause your company’s failure by forfeiting your right to obtain a patent.

Is My Idea Eligible for Patent Protection?

Naturally, each invention’s potential ‘patentability’ must be viewed on a case-by-case basis.  However, before considering the technical requirements, let’s take a step back.

Why do you think you need a patent?

The meta-question here of course is, what unique thing/idea/process does your company have that is unique to the market? If you cannot succinctly articulate what and how your idea is “new” (in common language), it would behove you to carefully reflect on the uniqueness and/or distinctiveness of your service(s) and/or product(s).

In the cannabis space, the market is exploding with novel approaches to facilitating the growth and consumption of cannabis.  From extraordinarily efficient canna-grow lights to high-temperature burning vaporizers, there are many devices and approaches to entering the space. So what exactly are you offering?

Once you determine that your cannabis startup is in fact selling something “new”, return to the four essential patent qualifiers mentioned above; novelty, non-obviousness, useful, and sufficient articulation. If your idea satisfies all four of these criteria, you may very well have something….

Applying For A Patent Is Expensive…. Is It Worth It?

Patents are not cheap and there is no guarantee that the startup company will succeed, potentially rendering the patent(s) worthless. So, are they “worth it?”

This is perhaps the trickiest of questions for the cannabis entrepreneur. Ultimately, whether or not obtaining a patent is a worthwhile investment is a business decision that must be made in light of a myriad of financial and operational factors.

Approximately how much will the patent cost? How much capital does your company currently have? Is your company valuable without owning proprietary intellectual property?  Finally, are Venture Capital firms willing to invest in your company if you have not first protected your intellectual property by filing for a patent?

This is but a mere sample of questions that should be part of the calculus.

Thus, for some companies, the answer may very well be no – a patent will be a poor use of resources.  However, for other companies, they may not be able to afford not obtaining patent protection.

Which kind of company are you?

This blog post is for informational purposes only. Nothing in this post should be construed as legal advice.

Howard Cohn

Howard Cohn is the chief Patent Attorney at THC Legal Group, a team of Marijuana Lawyers specializing in legal protection for the cannabis industry. For more information, please visit their website at http://www.THCLegalGroup.com

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