How to Patent a Marijuana Strain

In arguably one of the most important cases of the 20th century, Diamond v. Chakrabarty was brought before the Supreme Court and considered whether or not a living organism was inherently, patentable. Ultimately, the Court held that under the proper circumstances, patents are available to these crafty geneticists. Justice Warren Burger articulated the crux of the test for patentability by carefully evaluating the statutory language governing patents: “Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.”

35 U.S.C § 101 as Justice Burger understood this statute, the law was written in vague terms by design. Indeed, according to Burger, the broad language can and should be read to maximize the protections of the inventor when examining contentious claims involving rights to “natural organisms”. Lastly, Justice Burger argued that if the patent’s claim is “to a non-naturally occurring manufacture or composition of matter”, the organism is no longer merely a natural phenomenon but rather a product of “human ingenuity.” Human ingenuity is what we, as a society, want to reward and it is this very transition from natural phenomenon to human invention, which is the key to the possibility of cannabis patents.

Of course, it is undoubtedly true that the Chakrabarty case was not written to specifically address the viability of patents for cannabis strains. Yet the implications for cannabis cultivators are enormous. Justice Burger’s elastic reading of the rights to new strains of cannabis suggests that one would merely need to sufficiently modify the naturally forming strain of the plant in such a way as to make it a product of human ingenuity. How much modification is required? There is unfortunately no finite amount or number that can be satisfactorily relied upon. If you are the inventor, keep your fingers crossed that the patent examiner in the USPTO is in a good mood when evaluating your case.

Cannabis and the age of the Utility Patent

While the Chakrabarty case certainly laid the theoretical framework for Cannabis patents, cannabis geneticists were provided with no practical guidance as to how to best design their strains to satisfy the rigorous demands of the USPTO. However, all of that changed with the unprecedented issuance of THE patent that will forever change the landscape of the cannabis industry. In November 2016, the very first utility patent was granted to Biotech Institute LLC, for a cannabis strain with uniquely high levels of THC. Granted as United States Patent No.:9,095,554, the patent covers the “breeding, production, processing, and use of speciality cannabis.” The importance of this patent cannot be overstated as it grants not only rights to the method of use of a particular strain but rather ownership of the strain itself. To highlight this distinction, please consider the infamous patent granted to the United States government – US No.: 6,630,507. This patent, which stirred the ire of Cannabis purists and entrepreneurs to no end, merely granted proprietary rights to a particular method of using the strain, vis-à-vis its medicinal benefits. US9,095,554 is powerful precisely because its not confined to its application.

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