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Plants and other “higher life forms” by definition cannot be patented in Canada. To put it bluntly, any company trying to patent a new strain of cannabis won’t get very far, no matter how much time or money has been spent to make their case to the patent office. Despite this, there is good news regarding patenting cannabis. Most other innovations that either go into or come out of the development of a new cannabis strain can, at least theoretically, be patented. For example, this might include new:
Whether your company is growing plants, selling products or developing new medical indications, the value of a strong brand shouldn’t be lost in the weeds. The three strains mentioned at the outset of this post are arguably great examples of product branding. Each brand name is highly evocative and distinctive in its own way – in other words, ideal for registration as a trademark. It doesn’t matter that the brand names might have been in use for years because, unlike patents and PBRs, there is no requirement that a trademark be “new.” So long as a trademark is sufficiently distinctive, it should qualify for protection.
This is not the end of the story. Part of the reason why plants are not patentable in Canada is that they are already subject to a separate and relatively obscure regime known as Plant Breeders Rights (PBR). Before your eyes light up, significant hurdles still remain. The PBR regime provides what are considered less robust rights than patent rights, focusing instead on restricting the buying and selling of protected varieties, seeds, or any other type of propagating material of a protected variety, without the permission of the breeder. A breeder must still be able to provide sufficient evidence of infringement to such rights. In addition, PBR protection, much like the patent regime, imposes a number of conditions on plant varieties that must be satisfied before any rights are granted. Most importantly, a plant variety must be new, distinct, uniform, and stable. It remains to be seen how these requirements will play out for cannabis strains trying to qualify for protection. Currently the Canadian Food Inspection Agency lists one pending application for PBR protection. But some early indications are that, at least for existing strains, the bar may be set quite high.
It’s true that Canada’s existing intellectual property laws were put in place long before the decision to legalize cannabis was approved. And, the Canadian government has no current plans to update or pass any new intellectual property laws. But this doesn’t mean the existing IP laws can’t be used effectively to protect cannabis strains in development. As with many other industries, when it comes to cannabis, what is really required is a creative legal approach.
For any company that is scrambling to become part of this budding industry, the burning question is: what can be done to prevent others from stealing their intellectual property?
Establishing a variety of legal hurdles is essential to enjoy protection of cannabis strains in the marketplace.
Plant Variety Protection : The Plant Variety Protection Act (the “PVPA”) provides an option along with patent law as a way to protect and encourage the development of new seed varieties. PVPA creates a voluntary program to provide patent-like rights to developers, breeders, and owners of plant varieties. Similar to patent protection, the PVPA provides intellectual property protection to breeders of varieties of seed and tuber (potatoes) propagated plants that are new, distinct, uniform, and stable it allows for protections for a term of up to 20 years. It is important to note that PVPA does not limit the scope of patent law when looking to protect new seed variety. One can obtain both a plant patent and a PVPA certificate for the same strain.
Grace Neibaron is Counsel to Hoban & Feola. Her practice focuses on patent and trademark law. Grace currently represents wine companies, cannabis companies, food and beverage companies, start-up technology companies, and industrial manufacturing companies. Grace represents clients managing their trademark portfolios including preparing trademark opinion letters, preparing cease and desist letters, filing and prosecuting trademark applications and litigating trademark disputes in Federal Court and before the United State Patent and Trademark Office. Grace represents clients in patent law preparing and prosecuting patent applications, preparing patentability opinions, and preparing infringement opinion letters.
Under the PVPA infringing acts may include: using seed marketed as “unauthorized propagation prohibited” to produce seed of the variety to market for growing purposes: Selling, offering, delivering, consigning, exchanging or advertising for sale a protected variety; Dispensing the variety to another person without informing that person that the variety is protected; Importing the variety into the United States or exporting the variety from the United States; or Inducing a third party to commit any of the above acts.
Plant patents covering asexually reproducible varieties (clones). Plant patents are relatively inexpensive compared to a utility patent for the genetics. A plant patent is essentially a design patent covering any novel and visually perceived attributes of the plant. Coverage is narrow. While plant patents are quite useful in covering clones, they do not cover sexual reproduction of the variety e.g. using a cannabis clone to create hybrid seeds for distribution.
For example, GW Pharma Limited, from the UK, has hundreds of published patent applications and many issued patents covering aspects of cannabis. One interesting example covers particular genotypes that result in the high production of cannabichromenic acid and its decarboxylated form. Utility patents can pose a hurdle to those that may wish to use a proprietary cannabis strain.
Kevin H. Fortin is Counsel to Hoban & Feola. He is a Patent Attorney licensed to practice before the U.S. Patent and Trademark Office. His practice is limited exclusive to patent matters before the USPTO. He has a B.S. degree in Mechanical Engineering from Clarkson University and a JD from the University of San Diego School of Law. He is a member of the California State Bar. He has been involved in the Colorado Cannabis industry since 2008 after spending 13 years practicing law in Silicon Valley.