“If the marijuana plant has been sufficiently reengineered by geneticists, it may be eligible for a patent”

Because of the federal illegal status of marihuana, breeders and growers have been (justifiably) confused about the viability of acquiring a patent on their cannabis strains. This raises questions about the future of the owernship of these strains. Are and will they be eligible for patent protection? Are big corporations going to obtain patents on the most desirable of strains and push the little guy out of the industry industry? This state of uncertainty has only been exacerbated the Trump administration and its seeming disdain for the marijuana industry.

Howard Cohn, managing partner of the THC Legal Group, a team of lawyers based in Ohio that provides legal services and counselling to business in the cannabis industry, has sat down with us to review some of these more pressing questions.

1. What do you think it is going to happen with names such as Original Amnesia, Moby Dick and so forth?

Naturally, an individual can assign a name to his/her strain as he/she pleases – the real question is whether or not one can own the exclusive right to that name as it relates to the strain. As a general matter, the answer is no. Under the Lanham Act, which governs federal trademark law, trademarks can only be obtained when attached to goods or services that can legally be sold in commerce. As Cannabis is still federally illegal as a Schedule 1 drug under the Controlled Substance Act, it would be nearly impossible for one to acquire a U.S. trademark on the Cannabis Strain names "Original Amnesia" and/or "Moby Dick". It is, however, conceivable that an individual could obtain a State issued Trademark on these names, which is of course not as robust or inclusive as federal trademarks.

2. How would an IP licensing work for a cannabis strain?

If the marijuana plant has been sufficiently reengineered by geneticists, to the extent that there has been a clear human intervention in the development of the plant, it may be eligible for a patent.

Theoretically, IP licensing for cannabis Strains should be no different than licensing other sorts of intellectual property. Depending on whether the individual is the Licensor or Licensee, the original strain is effectively leased and sold under a new brand name, operated by the licensee. Licensing for strains is however uniquely challenging in that it may be both difficult and expensive for the original strain producer to patent and own the strain. Indeed, while patenting strains is possible, very few cannabis geneticists have acquired patents on their proprietary strains to date. If an individual cannot or has not obtained a patent on his strain, he will have a very difficult time licensing it to a licensee – after all, from the licensee's perspective, there is nothing proprietary to license if the licensor does not legally possess the rights to the strain.

3. Is it possible to patent a cannabis product without patenting the genetic?

This is an interesting question and turns on what precisely you mean by "cannabis product." Fundamentally, patents protect new and useful processes, machines, manufacturing items and certain compositions of matter that are novel, non-obvious, and properly articulated by the inventor. If the product in question does not meet this standard, then it cannot be patented. Circling back to your question, if the cannabis product relies on the patentability of the underlying genetics, then one would seemingly need to also obtain a patent on the proprietary genetics.

4. What is your opinion about cannabis federal legalization in USA?

It is going to happen soon? This is perhaps more of a policy question than a legal question however in my estimation, full legalization is an inevitability. States are increasingly moving in the direction of either medicinal or recreational regimes and at a certain point, the federal government will be forced to bend to the will of the people. Now, whether this comes in the form of the DEA removing cannabis from its Schedule 1 classification (thereby making it not federally illegal) or perhaps congress taking some sort of affirmative action legalizing it is still to be seen.

5. How do you think Trump's administration is going to affect the cannabis regulation process?

This is certainly a hot topic in the States and for many, a worrisome topic. It is important to remember that even under the Obama administration, marijuana was and is still federally illegal. However, Obama's Justice Department famously issued the Cole Memo which suggested that it would not act forcefully against marijuana businesses acting in accordance with the laws of their respective states. Trump's Justice Department, led by Jeff Sessions, has not officially repudiated the Cole Memo, however its personnel has certainly indicated that it is not exactly marijuana friendly. It is still too early to know how precisely this will all play out but many policy makers and entrepreneurs in the industry are not overly optimistic.

6. What do you think about big corporations getting into cannabis business?

Is it the end of the little producers? Are we about to start a new era? This is an interesting question and depending on one's perspective, the introduction of big business is either hugely advantageous or deeply concerning. On the one hand, "Big Canna" is likely good for the industry in that larger and more robust companies will introduce a level of professionalism and legitimacy that our stigmatized industry sorely needs. However, from the little guy's perspective, large companies will push them out of business and create a competitive environment that smaller players simply cannot compete with. Whether you are for or against it, bigger and bigger corporations entering the cannabis space is a reality that will likely not abate any time soon.

7.A. Do you think that people´s perception regarding marihuana has changed in states such as Colorado, WA and California?

Undoubtedly, marijuana is becoming increasingly normalized and indeed de-stigmatized in the mind of the everyday American. This is certainly in States like Colorado, WA and California where their citizens have respectively democratically voted to legalize recreational marijuana. I hope we see this trend continue to grow across other States within the U.S.

8. It is really possible to patent a marihuana plant?

The short answer to this question is, maybe. If the marijuana plant has been SUFFICIENTLY reengineered by geneticists, to the extent that there has been a clear human intervention in the development of the plant, it may be eligible for a patent.

9. Regarding medical cannabis, do you think it is well regulated? Do patients have access to a throughout composition of the cannabis they are ready to consume? Or do you think it needs to be regulated a bit further?

Again, depending on who within the cannabis community you ask, you will likely receive vastly divergent answers to this question. Many old-school marijuana advocates feel that the government should stay out of the industry completely. From this vantage point, all government regulation is by definition a bad thing. Others, conversely, recognize that the Government needs to be involved, at least to some extent, because it is often being touted as a medicine and as such, should undergo government scrutiny. It is clear to me that we need to have some sort of regulation to ensure that the product is safe but too much intervention would in my estimation only stifle the industry's growth and production.

Howard Cohn is the chief Patent Attorney at THC Legal Group, a team of Marijuana Lawyers specializing in legal protection for the cannabis industry. For more information, please visit their website at http://www.THCLegalGroup.com