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Guest Blog: Protecting Cannabis Strains with Plant Patents

In this post, guest author Jeremy Kapteyn, Ph.D., from Rose Law Group, discusses using plant patents to protect new & distinct strains. Evoke Law has also written about protecting strains: “Branding a Cannabis Strain: Don’t Reinvent the Wheel” in mg Magazine’s April/May 2018 special branding issue. Cannabis breeders, cultivators and others developing cannabis genetic resources are almost invariably surprised to learn that cannabis plants are protectable under U.S. patent laws, notwithstanding their illegal status under the Controlled Substances Act (CSA). While the interplay between the CSA and federal trademark laws effectively prohibits federal registration of marks covering goods and services directly related to cannabis products, since registration requires use in commerce, which is unlawful under the CSA, the patent laws have no such use requirement. Thus, the CSA does not preclude the availability of patent protection for cannabis-related inventions, including cannabis plants themselves. Not only can cannabis plants be patented, but they are eligible for two different types of protection: utility patents and plant patents. This article focuses on plant patent protection and provides practical insights into how plant patents can be commercially valuable to cannabis breeders and cultivators. Plant Patent Eligibility Requirements 1. Asexual Propagation A key element of eligibility for plant patent protection is the ability for the plant to be asexually propagated (i.e., multiplied without using seeds). This includes any non-seed methods of propagation, such as by rooted cuttings (a propagation method routinely used for cannabis), as well as tissue culture propagation, which is of increasing interest in the industry. 2. “Distinct” & “New” The other key elements of plant patent eligibility are that the subject...