The Legal Status of Cannabis Patents


The legal status of cannabis is rapidly evolving.  Thirty-five US states have now legalized cannabis for medicinal purposes and fifteen states have legalized cannabis for recreational purposes.  Although cannabis is still classified as a Schedule I drug at the federal level in the United States, on December 7, 2020 the House of Representatives passed the Marijuana Opportunity, Reinvestment and Expungement (MORE) Act which would remove cannabis from the federal Controlled Substances Act.  However, if the MORE Act is not enacted into law due to resistance in the Senate or from the Executive, it is expected that states will independently continue to legalize cannabis over the coming years.
Although sales and use of cannabis are illegal at the federal level, patent protection for cannabis-related inventions is permitted.  Over 11,000 cannabis-related patents have been issued by the US Patent Office with over a 1000 having been issued in 2020 alone.

Increased Intellectual Property Competition

 Legal cannabis revenues rose from 10.7 billion dollars in 2019 to 17.9 billion dollars in 2020, an amazing 67% increase.  As cannabis becomes increasingly accepted for medicinal and recreational use, such rapidly growing revenues has spurred large increases in the number of cannabis patents filed and issued in the last few years.  Therefore, not only is it increasingly important to stake intellectual property claims in this field, it is advisable to do so early to avoid being beaten to the Patent Office by competitors.


The Highest Quality in Cannabis Patents

Your choice of patent counsel is crucial to your success.  If not properly prepared a patent application can be worthless piece of paper which may not even gain issuance.  Having gone through a number of patent attorneys as a client myself when I first began inventing, and having seen surprisingly many instances of incompetence and even malpractice in the course of my 29 years of professional experience, I cannot stress enough how important it is to interview multiple potential patent agents and attorneys before selecting one.  Call or email me for a free half hour consultation.

Laurence J. Shaw, PhD USPTO Reg. No. 34,723 29 Years Experience

What to Look For (and What to Look Out For) in Patent Counsel

Unfortunately, almost nowhere is the saying "Buyer Beware" more relevant than with patent counsel.  There is a separate bar exam just for patent law in part because patent claims are written in a special type of legal language.  This specialized language often provides a smoke screen which allows marginally competent lawyers to obscure the quality of their work.      But you need not trust blindly.  Interview multiple lawyers and agents and compare.  Here is a list of tip-offs regarding the quality of the work you will receive. 

Attention to Detail

In a patent every word is important. In one famous case, the difference between "heating at a temperature" versus "heating to a temperature" made the difference between a worthless and an enforceable patent. If your patent counsel does not display outstanding attention to detail, be wary of the services they will provide.

Fixed price quotes are generally a scam

There is a huge amount of variation in the labor required to prepare a competent patent application. If you are quoted a price before patent counsel thoroughly understands your invention, this is an indication they will provide you with a patent application filled with boilerplate paragraphs and you will not be receiving adequate representation.

Sufficient technical expertise

To properly prepare a patent application, patent counsel must thoroughly understand the invention. If patent counsel doesn't have sufficient technical expertise or claims that they don't need to understand important details of the invention, they will not have the depth of understanding necessary to produce a strong patent application.

You should understand why your application is written as it is

As a layman you probably won't be able to fully understand patents for other inventions, but patent counsel should be able to explain to you why the patent application for your invention is written as it is. If there are descriptions in your patent application that don't make sense to you, you should be concerned.

Don't get handed off to an inexperienced associate

It takes 3 to 5 years to start to become proficient at patent writing. At larger firms it is common to have an initial meeting with an older partner and a young associate. Although they will assure you that the partner will review what the relatively inexperienced associate prepares, a few hours of review time by the partner is not sufficient to gain the intimacy of understanding necessary to insure the job is done right.

Cannabis Patent Questions?