• Elise Castelaz

How Does Cannabis Patenting Work?

The regulated cannabis industry is in its infancy, and there are still a lot of unknowns regarding the protection of intellectual property by cannabis breed patenting. Breeders continue to seek out this protection for their unique work, in hopes that it will provide additional income for their cultivation business or otherwise. The details of cannabis patenting can get very complex, but in this blog post we’ll discuss two main types of patents that breeders can file for: the first is a Plant Patent, and the second is a Utility Patent.

Plant Patents

A plant patent gives the patent holder intellectual property rights to one particular breed of cannabis. Sounds simple, right? The problem with this patent is that when an individual only has a plant patent, their breed can still be used by other non-patent holding individuals to create new hybrids and strains. This limits the protection to just one genome of the plant, meaning even the slightest mutations or hybrids of the plant would not be protected.

Utility Patents

The second patent available to cultivators is a utility patent which, in general, protects the creation of a new or improved product, process, or idea. In regards to cannabis, a utility patent protects the plant itself, and can also protect any products created or produced by it, such as the seeds, plant parts, and plant varieties.

Both of the above patents can last up to 20 years, but utility patents stand to be more desirable for breeders seeking to ownership of intellectual rights to the unique strains they have produced.

Scientists and breeders are discovering new and improved ways to identify specific phenotypic qualities of certain cannabis plants in an effort to protect intellectual property, but this is still a very early development. Differentiating between specific phenotypic and genotypic qualities to amongst plants can be challenging, grueling work. The process of obtaining a patent for a specific breed of cannabis has the potential to be prolonged and intensive; many growers and breeders simply cannot afford the expense. Because of this, it has been extremely difficult for breeders to protect what they believe to be their intellectual property. Some argue, however, that the challenge to obtain these patents may be a positive thing, limiting larger corporations ability to monopolize and even restrict certain strains.

Regardless of the proposed ethical opposition or technical challenges, filing for patents has become increasingly popular amongst cannabis breeders, and the issue of utility patents will become more and more relevant as scientific developments in gene analysis progress.

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