By: Pauline M. Pelletier and Deborah A. Sterling, Ph.D.
Numerous cannabis and investor news outlets lately reported that the United States Patent & Trademark Workplace (USPTO) awarded what seems to be the very first patent for a hemp strain to Denver-primarily based Charlotte’s Net Holdings (CWBHF). Plant patents are fairly uncommon compared to utility patents, but it will be significant for these in the cannabis business to realize their scope, how they evaluate and contrast to utility patents, and their possible effect on the cannabis business.
CWBHF’s hemp strain patent, U.S. Plant Patent No. PP30,639, lists CEO Joel Stanley as an inventor and is directed to “a new and distinct hemp cultivar designated as ‘CW2A.’” The patent describes CW2A as a Cannabis sativa L. cultivar that is capable of creating up to six.24% CBD and only .27% THC. The THC content material of CW2A is notable for becoming under the .three% threshold needed for federal classification as “hemp” below the 2018 Farm Bill. As background, the 2018 Farm Bill removed hemp from the scope of the Controlled Substances Act (CSA), opening the door for legal hemp cultivation in the United States. CBD (cannabidiol) can be derived from hemp and has lately exploded in recognition. Whilst regulators, which includes the US Meals & Drug Administration (FDA), are nevertheless grappling with the quickly-expanding CBD marketplace, a lot of in the cannabis business are plowing forward with marketing and advertising plans in contemplation of federal regulations and state strategy approvals that would authorize the legal cultivation of hemp.
Interest in hemp cultivation has risen in tandem with CBD’s recognition. According to a current study by the Brightfield Group, 285,000 acres of hemp have been planted in the United States in 2019, an boost of 72% from 2018, and as a great deal as 87% of that hemp is anticipated to be utilised for CBD processing. Certainly, CWBHF’s plant patent lists various possible marketplace makes use of of the CW2A hemp strain, which includes: health-related drugs, foods (e.g., margarine, meals supplements), drinks (e.g., infused beverages, sports drinks), technical items (e.g., varnishes, fuel, print inks, solvents, coatings), private hygiene items (e.g., cosmetics, soap, shampoo, bath gels), hemp-infused pet treats, textiles (e.g., apparel, diapers, fabrics, denim, socks, footwear, fine textiles, twine, rope, carpets, geotextiles), and creating components (e.g., fiber, insulation material, cement blocks). Whilst some of these items (e.g., drugs, foods, drinks, pet treats) could need FDA approval, these not intended for human or animal consumption could not (e.g., textiles, creating components).
The issuance of CWBHF’s patent begs the query: what does this imply for these who make, use, or sell hemp that is capable of creating up to six.24% CBD and only .27% THC? The answer is that plant patents are fairly narrow in scope. Plant patents, which have been designed by the Plant Patent Act of 1930, afford protection for asexually propagated plants (i.e., clones getting identical genetics to these of the patented plant). Plant patents do not defend sexually created plants (e.g., these cultivated by seed). As a outcome, a plant patent is infringed only when the infringer has cloned the accused plant from the plant protected by the patent. Plant patents are hence commonly not regarding to these who are seed farming or cultivating related but not genetically identical plant varieties. If cloning proprietary strains eventually proves crucial to the cannabis business, a patent covering such genetics could have far-reaching implications.
Utility patents, on the other hand, give fairly broader protection and can be advantageous exactly where the invention lies in the improvement of a plant or plant solution that is cultivated to have previously unknown and non-naturally occurring properties. A single benefit of utility patents more than plant patents in this regard is that, if utility patent protection is awarded, the claimed invention can be infringed even if the accused solution is reproduced sexually (e.g., by seed farming). Utility patents are routinely issued by the Patent Workplace for plants and plant components (e.g., buds, pollen, fruit, plant-derived chemical substances, extracts, proteins, engineered genes).
In sum, whilst a plant patent covering a commercially important strain for cloning purposes surely has worth, its scope is bounded to the genetics of the patented plant and leaves space for sexual reproduction (e.g., seed farming). By contrast, a utility patent covering a non-naturally occurring strain, exactly where the claim is defined in terms of the plant’s novel traits could make the avoidance of infringement far more tough and hence serve as stronger patent protection.
Patents are a significant investment and sophisticated approaches are required to assure that they give worth to their owners—whether for defensive purposes, offensive purposes, or each. And whilst patenting activity in the cannabis space has a history dating back to the 1950s, the current development in industrial worth, investment interest, and biomedical innovation is proving to be a game-changer. As a outcome, the want for sophisticated patent counsel has in no way been higher.
 Chris Roberts, This is the very first hemp strain to be awarded a US patent, Leafly (Sept. 13, 2019) (hyperlink) Graham Abbott, Initial U.S. Hemp Strain Patent Awarded for Charlotte’s Net, Ganjapreneur (Sept. 18, 2019) (hyperlink) Charlotte’s Net Holdings’ New Hemp Patent Could Be a Game Changer, Yahoo! Finance (Sept. 17, 2019) (hyperlink).