Intellectual Property Law · Licensing · Technology Innovation

Protect cannabis products and formulations with a utility patent

On Behalf of | Apr 14, 2022 | Cannabis Law |

As the country’s general attitude toward cannabis warms up and the regulations become more relaxed, plant, medicine and science enthusiasts alike rejoice in the opportunities to experiment. What was once an illegal, back-door endeavor is now drawing broad interest across many different institutions.

With different strains producing different beneficial effects, and unique formulations making delivery of the substance more conducive to various lifestyles, the possibilities for creating new products are seemingly endless. While still classified as a Schedule I substance under the Controlled Substances Act, emerging research, improved public opinion and opportunities for immense business growth and tax revenue may encourage an amendment to that classification sooner than later.

Utility patents for cannabis

As cultivators and producers of cannabis and cannabis-derived formulations create new and unique products, it is advisable to pursue patent prosecution. Utility patents differ from plant patents because they provide protection for an expanded assortment of products and formulations. These types of patents apply to both sexually and asexually reproduced cannabis plants whereas plant patents or PVPA certificates only cover asexually reproduced plants.

The downside of utility patents is the challenge of obtaining them. They have extensive requirements including complicated requirements around the written description as well as reproducibility given the description, otherwise known as the enablement requirement. 

A workaround to this enablement requirement is the deposit of a significant amount of seeds or other biological material at a USPTO-recognized depository facility. Due to the complex legal challenges with regard to successfully obtaining a utility patent for cannabis formulations, it can be very helpful to work with someone familiar with the details and workarounds available.