The proliferation of patents in the cannabis industry

The cannabis industry is gradually becoming mainstream, and at the same time, the number of patent applications is on the rise. Patents grant exclusive property rights, guaranteed by the government, over inventions such as processes, machines, products, or formulas of interest. With the financial boom surrounding cannabis—and medical cannabis in particular—the cannabis industry is increasingly inclined to protect its intellectual property. Surprisingly, these patents are sometimes granted even though cannabis is illegal or not recognized as having therapeutic properties under the laws of the states in question.

Prohibition: A Problem for Patents?

Interviewed by Forbes, David Cohen, a doctoral student and independent patent attorney specializing in the cannabis industry in California, explains that the federal government’s prohibitionist stance has had little impact on patent grants in the United States. In fact, some of the scientific research on the therapeutic potential of cannabinoids has been patented by the U.S. government itself through the Department of Health. At the same time, the U.S. Patent and Trademark Office has been granting cannabis-related patents since 1942. Some of these have expired (after about 20 years, inventions enter the public domain), but others are still in force. Despite the federal ban, patent applications are increasingly common in the United States.

Generally, drugs can be patented even if they do not have marketing authorization. In 2010, the United Kingdom government granted a license to GW Pharmaceuticals for the production of the drug Sativex, a treatment for multiple sclerosis. Yet it was only recently that The British government has legalized medical cannabis. Recently, The FDA has approved another medication for Gw Pharmaceuticals, Epidiolex. It goes without saying that these drugs are protected by patents that give the pharmaceutical company a monopoly on their production. These patents were granted despite the ban.

According to WIPO, According to the United Nations’ global intellectual property organization, 50% patents related to cannabis-related products have been filed by Chinese companies. However, China’s anti-drug laws are very strict and include the death penalty. Hemp, however, is legal in China and can serve as the basis for the same research.

Another expert report It also shows that the majority of recently filed patents come from China, but also from the United States and Canada. In Canada, of course, there is no cause for concern regarding the legality of the patented subject matter. Among the most recent patents filed by Canadian companies are lighting devices, extraction processes, and cannabinoid formulas. Patents can also cover more abstract concepts: Canopy filed a patent for a «method for representing the physical characteristics or chemical composition of an article or substance.».

What types of patents?

The report categorizes the filed patents into patent families and ranks them by quantity. It notes a clear predominance of medical patents.

• Medical : includes the use of cannabis (methods and formulations) to treat specific diseases, as well as routes of administration. One of the most recent patents filed concerned the administration of cannabinoids via suppository.
• Culture : The most recent patents filed relate to cultivation systems, lighting systems, and secure enclosures.
• Screening : includes methods of chemical analysis, toxicology tests useful in forensic contexts, etc.
• Food : For example, patents have been filed for recipes involving honey, coffee, sesame, and cannabis-infused chewing gum.
• Devices : includes vaporizers, patches, or methods for extracting and manufacturing oils.
• Genetic Manipulation : includes genetic promoters, transgenic plants with modified levels of cannabinoid expression, and genetic markers for distinguishing cannabis varieties.
• Traceability : includes systems for tracking and monitoring the production and distribution of cannabis.
• Recreational : The most recent patent applications included the manufacture of cannabis-flavored condoms.

Patents in the Pharmaceutical Industry

Today, the pharmaceutical industry is experiencing a real boom driven by the legalization of medical cannabis, which is leading to the discovery of an increasing number of therapeutic applications. Increasingly specialized companies are developing drug formulations and new extraction and production technologies, or identifying cannabinoid and terpene profiles with enhanced biological efficacy and new production methods to ensure stable ratios.

At the same time, the industry is consolidating, and large companies are tending to acquire small and medium-sized enterprises—particularly those that hold valuable patents. Recently, Canopy Growth For example, it acquired, for the modest sum of $327 million, ebbu, a laboratory specializing in cannabinoids that holds some 40 patents.

As one might expect, the pharmaceutical industry is the leading filer of patents in the cannabis sector, particularly in molecular chemistry. More broadly, however, patents may cover:

• certain cannabis profiles, formulations, and preparation methods associated with the development of a drug
• the characterization of cannabis compounds in terms of their effects on endocannabinoid receptors
• Cannabinoid-based treatment methods for certain diseases

Can plants be patented?

The patenting of living organisms is a complex issue, but in principle, yes, plants can be patented under certain conditions specific to each country’s laws. In Canada, plants and life forms are not patentable. In Europe, patentability applies only to genetically modified plants and does not apply if the resulting monopoly is morally contrary to public health.

In the United States, however, moral considerations do not come into play, and there are two ways to patent a plant invention: the utility patents and plant patent. The first category accounts for 95% of the patents filed and applies to the plant’s genetic material—that is, directly to the variety. The second category applies only to the parent plant and its direct descendants. The distinction lies in reproduction: in the first case, the seeds are patented, but in the second, only plants produced from cuttings are covered by the patent.

«From my point of view, the plant patent is not a significant threat to the industry's biodiversity; it simply rewards those who breeders »with exclusive control over their work," explains Dale Hunt, a patent and intellectual property attorney in San Diego, To Merryjane. «The real danger comes from the utility patents. »People can and do obtain patents on plant varieties, and in such cases, any similarity in the phenotype can constitute an infringement of the monopoly.".

Once a plant’s phenotype (genetic profile) has been patented, anyone who wishes to grow it must obtain a license directly from the patent holder. However, the patent is considered invalid if there is valid evidence that the patented subject matter existed more than one year before the patent application was filed; this is proof of prior art. With regard to cannabis, the lack of data on existing phenotypes may lead to patent abuse.

To combat the appropriation of cannabis varieties through patenting, the online platform Open Cannabis Project has set a goal of identifying and compiling a database of the genetic profiles of existing plants. «If we don’t have enough evidence to determine novelty, then I personally believe we shouldn’t grant patents on cannabis plants. At least not yet,» explains Director Beth Schechter.

The Patent War

Patents provide protection for companies, but they are also strategic weapons in the trade war they are waging against one another. Recently, a trial in Colorado raised a number of questions. On July 30, United Cannabis Corporation (UCANN) continued Hemp Collective alleging that the latter had acted in violation of Patent No. 9,730,911 shortened to «Patent 911,» which claims the invention of «a liquid cannabinoid formula containing at least 95% of CBD.» If UCANN wins the lawsuit, it will be established that no company may manufacture liquid cannabis products with a CBD concentration greater than or equal to 95%. However, this claim is invalid in light of the evidence presented by prior art since Epidiolex from GW Pharmaceuticals, which was developed as early as 2010, contains a CBD concentration of 99%. The U.S. Patent and Trademark Office is not particularly strict when it comes to the cannabis industry, which could lead to an increase in litigation.

«There is a natural tension between protecting intellectual property (IP) and ensuring that IP does not cover things it should not cover. That’s the threat posed by people who patent things they shouldn’t,» explains John Mansfield, a patent attorney, To Merryjane. «The real problem with the utility patents, It’s when people get away with erecting barriers that are too high, thereby blocking an entire sector of innovation or commercial activity that they shouldn’t be able to block. »We must ensure that the monopoly is no larger than the inventor’s contribution to the innovation.”.

When it comes to living organisms, some fear that large agribusiness companies such as Monsanto and Syngenta will claim ownership of cannabis varieties through patents and gain control over their genetics, as is already the case with other types of crops. This would force the breeders and requires producers to obtain licenses from these companies, and it is highly likely that this will also have a negative impact on the diversity of the plant's genetic heritage.