It should come as no surprise that the number of applications for cannabis patents has been steadily increasing in recent years. In this post we discuss the basics of the subject, with a focus in the United States. While patent systems usually bear some similarities, some of the details may be different in other countries.
1. What is a patent?
A patent is a grant of a property right to an inventor over their invention. The patentee has the right to exclude others from making, using, offering for sale, or selling the invention, or importing it into the United States.
2. Are there different types of patents?
Yes, three: utility patents, design patents, and plant patents. For more information, check out Cannabis Patents: Which Type Is Right for You?
3. Cannabis patents belong to which type?
They can belong to any of the three.
4. But most cannabis patents are plant patents, right?
No, though there are certainly plant patents on cannabis plants. These patents are granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant.
5. What are most cannabis patents then?
Utility patents. These may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof. Examples include a new cultivation method that increases cannabis crops yields, or new vaporizing technology.
6. And design patents?
Design patents may be granted to anyone who invents a new, original, and ornamental design for an article of manufacture. An example of an article eligible for a design patent is a water pipe with a unique shape.
7. What if my plant is considered marijuana under the Controlled Substances Act?
For patent purposes, it does not matter. Ironically, the United States Patent and Trademark Office (USPTO) has different approaches to cannabis patents and cannabis trademarks. The latter are not registerable if the goods and/or services they describe are illegal under federal law, including marijuana. However, USPTO does issue patents for marijuana plants and inventions related to marijuana.
8. Tell me more about plant patents.
That is for another post, in which we will get into the “weeds.”