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Bryan E. Kuhn
Counselor at Law, P.C.
Business & Employment Law Attorney

Are patents needed to protect marijuana strands?

Intellectual property is an area of law that is based on legally-recognized exclusive rights to things that were invented or created. The rights are recognized by patents, copyright and trademarks, which allow creators to benefit from the use of their creations.

Typically, when we think about intellectual property we think of inventions, books or songs. But it might not be long before strains of marijuana join that list. Recreational marijuana use is now legal in the states of Colorado and Washington, and several other states allow medicinal marijuana use. 

In coming months and years, it is likely that additional states will join the list. This means there is a lot of room for profit when it comes to growing cannabis crops. While marijuana farmers are pleased to see the market growing, they are also worried that large agriculture corporations will soon try to cash in as well.

That’s where intellectual property comes in. Small growers say that patenting their strains of the cannabis plants would be the only way to protect the strains from being picked up “big agra.”

But there’s a problem. Marijuana is still illegal to grow and distribute under federal law, and patents require approval from the federal government.

One way around the federal marijuana prohibition is by applying for a state-level trademark in Colorado, but those do not offer the same kinds of protections as a federal patent.

Another potential way around the federal marijuana laws could be through the court system. If marijuana growers applied for federal patents, were denied and then appealed the denial, the issue could get as high as the U.S. Supreme Court. (No pun intended.)

Ultimately, the U.S. Supreme Court could hold that a federal patent is necessary to protect the marijuana strains grown in states where it is legal. But it would certainly be a long road to get to that point, involving the intersections of many different areas of law.

Source: The Denver Channel, “Marijuana growers aim to patent their products,” Miranda Green, July 9, 2014

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