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Cannabis a growing battleground in IP law

Cannabis developers and companies might be able to protect their intellectual property by pursuing plant patents, according to one Colorado registered patent agent. The strategy is largely overlooked, at least in part because the cannabis is still a Schedule 1 controlled substance in the eyes of the federal government, making it considerably more difficult to secure patent protection from the U.S. Patent and Trademark Office. A plant patent lasts for a period of 20 years, like a utility patent, and protects every part of the relevant plant, including the seeds.

This prevents large corporate agriculture companies from ripping off smaller companies because they would be required to pay licensing fees for each of the patented seeds they sell. There have been cases in which plant patents were granted for cannabis. In 2016, for example, the USPTO issued a patent for a sativa strain originating in Ecuador. Since then, seven or eight predominantly CBD-heavy strains have received patents.

At the same time, genome-based patents have been issued much more frequently. As of the end of May 2019, 323 cannabis genome patents had been granted, and more than 1,000 more were pending. Growers and developers in the industry are worried that large corporate entities will grab up all of the patents before the strains can even be developed. This would force smaller operations to license seeds from large conglomerates.

For business owners and entrepreneurs in Colorado, the largest asset they own is often intellectual property, whether or not they are involved in the cannabis industry. An attorney with experience in intellectual property law might help interested parties protect their IP by filing necessary documents or otherwise communicating with the relevant government agencies on the client's behalf. An attorney might be able to secure patents or trademarks for the client, strengthening the client's position and allowing for recourse in the case of a breach.

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