Opportunities for Cannabis (Marijuana) Plant Patents

By: ​​Linzi Kaniszewski

Are cannabis plant innovations patentable?

Despite the gray areas regarding the legality of Cannabis products, scientists began patenting Cannabis formulations and methods in 1999. No matter what your interest is related to Cannabis sp., there is almost always room to patent your Cannabis innovations. 
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Looking to invent in the area of plant pathology? Interested in the genetic engineering of novel cultivars? Perhaps you are not interested in science at all, but have a really good idea related to improving the growing conditions for Cannabis sativa… Great news inventors! There is likely space for innovation in your area of interest in the Cannabis market. 

​No matter what your interest is related to Cannabis sp., there is almost always room to patent your Cannabis innovations.

What is Patentable in the Cannabis Plant Space?

• Synthetic. While it is true that we cannot file patents for natural living things (MPEP, Ch. 2100 section 2105), we can file patents for isolated natural products and/or synthetic non-naturally occurring living things. 
  
• Non-naturally occurring. For chemical components, it is key that the natural product is isolated from the crude material, making it non-naturally occurring (avoiding a 101 rejection) and non-obvious (avoiding a 103 rejection). 
  
• Novel, non-obvious, useful. Perhaps a unique flavonoid profile is discovered, and a biologically active natural product is isolated – as long as this natural product (or discovery of activity) is novel (35 U.S.C.102), non-obvious (35 U.S.C. 103), and is useful to society (35 U.S.C. 101), it is likely that this natural product is patent worthy.
  
• Living organisms can be patented as long as you can prove asexual reproduction, and the particular living organism is non-naturally occuring. Although 'natural' living things are not patentable, new varieties of plants may be (35 U.S.C. 161). An example would include, if you were to synthetically, using biotechnology, create a variety of Cannabis sativa that produces buds much earlier than the naturally occurring Cannabis sativa, this would be patentable (see plant breeding below for other examples).

Patentable Ideas in the Cannabis Plant Space

Child safety. This area includes inventions that keep children out of any Cannabis products. Innovation could be partly directed towards biodegradable yet child-proof packaging (see below). 

Public safety. One crucial need for public safety is an improved rapid test kit that Cannabis users can use to test their THC consumption level (in mg of THC as one example), as one indicator of their ability to safely drive or operate machinery, for example. 
 
Drug safety. We also need inventors that can create rapid test kits to screen for residual pesticides and solvents, in addition to rapid detection kits for pathogens. These inventions would enable Cannabis users or dispensary owners to screen their products for any contamination before selling, purchasing, and ingesting. 

Biodegradable packaging. As we face climate change, consumers are looking to reduce their environmental footprint by reducing their plastic use. According to 37 CFR 1.102 (advancement of examination), inventions that enhance the quality of our environment and/or preserve the natural resources found in our environment, may be given priority using speedy processing times because of the dire need for those types of inventions.

Biopesticides. The same types of plant pathology issues that are occurring with traditional crops are happening in the Cannabis space. 

Biotechnology. Genetic variants may be patentable. In a publication discussing the Cannabis sativa Versus Cannabis indica debate, Ethan Russo, MD explains that “the presence of the relatively rare terpene in Cannabis, alpha-pinene, can effectively reduce or eliminate the short-term memory impairment classically induced by THC.” This is one example of how genetic information can be utilized when screening genetic profiles of Cannabis cultivars. 

New extraction methods. Butane hash oil (dabbing) can be dangerous to users for many reasons. Extraction methods often require the use of butane, which can be dangerous to work with based on its chemical properties. 
 
Plant breeding. There is always a need for cultivars with disease resistance properties, cultivars with novel profiles, which may include larger buds, more dense buds, etc. when compared with the naturally occurring Cannabis sativa.  

More efficient growing equipment and methods (including improved propagation methods). Better green energy systems and/or methods involving water distribution systems, drying systems, ventilation systems, irrigation systems are needed – basically anything that preserves natural resources, increases energy efficiency, and/or minimizes pathogen growth. 

Demand, opportunity, and security

The demand is high (see what we did there?). The white space is huge. And opportunities to protect Cannabis innovations are plenty. The sky's the limit! Ready to file for a patent? What are you waiting for? We’d love to hear from you!

Deeper Explorations
 
Al-Zouabi, I., Stogner, J. M., Miller, B. L., & Lane, E. S. (2018)
Butane hash oil and dabbing: insights into use, amateur production techniques, and potential harm mitigation. Substance abuse and rehabilitation, 9, 91–101.
https://doi.org/10.2147/SAR.S135252
 
Piomelli, D., & Russo, E. B. (2016)
The Cannabis sativa Versus Cannabis indica Debate: An Interview with Ethan Russo, MD. Cannabis and cannabinoid research, 1(1), 44–46.
https://doi.org/10.1089/can.2015.29003.ebr
 
Punja, Z. K., Collyer, D., Scott, C., Lung, S., Holmes, J., & Sutton, D. (2019)
Pathogens and Molds Affecting Production and Quality of Cannabis sativa L. Frontiers in plant science, 10, 1120. https://doi.org/10.3389/fpls.2019.01120
 
Sorrentino, R., Pergamo, R., Battaglia, V. et al.
Characterization and pathogenicity of Fusarium solani causing foot rot on hemp (Cannabis sativa L.) in Southern Italy. J Plant Dis Prot 126, 585–591 (2019).
https://doi.org/10.1007/s41348-019-00265-1
 
June-Wells, M. & Lindback, M. (2019, Nov. 1)
Your Guide To Hydrocarbon Extraction; Cannabis Business Times. https://www.cannabisbusinesstimes.com/article/your-guide-to-hydrocarbon-extraction/