Scott Cooper World Marijuana Patents
Among the host of uncertainties they face, cannabis industry entrepreneurs might wonder if they could patent bud products — after all, they continue to be illegal at the federal level. Nearly 1,500 cannabis patent applications are filed, more than half in the last 25 years. Approximately half of the requests were accepted and some of these have expired, leaving approximately 500 currently active cannabis-related patents.
David Cohen, PhD, an independent patent agent in Oakland, California, works with medical device and cannabis patents. We ask him what kinds of patents are being issued, who is filing for them and where the biggest opportunities in cannabis-patenting may be. Contact him at [email protected]
What areas should a possible cannabis patent filer explore?
There are 3 large and partially overlapping categories: (1) cannabis compositions, drug formulations, and methods of preparation, (2) characterization of cannabis chemicals with regard to how they interact with human endocannabinoid receptors, and (3) methods of treating diseases with cannabinoids.
Who is busy in this area now?
Dozens of small and midsized companies have been filing patent applications, and they account for the present rate of growth in this space.
What about Big Pharma? Philip Morris?
Early on, large pharmaceutical companies, universities, and research institutes were leading the charge, but their collective activity actually peaked in 2006-2007 and has been steadily decreasing since then.
Why isn’t the pharmaceutical industry more active now?
I see this as a wave of innovation that crested and is now subsiding, a common pattern. The use of hormone and neurotransmitter receptors began to be appreciated in the 1970’s by academics as well as the pharmaceutical industry and has become a critical to understanding the physiology of a drug. When discovered in the 1990’s that cannabinoid compounds interacted with the so-named endocannabinoid receptors found in cells of the human body, a large pharmaceutical discovery machine was already in high gear. The industry has vast expertise in chemistry, and immediately figured out the key compounds, the way to extract them and how to make them. The pharmaceutical industry can get back into it quickly if they wish to, especially by making acquisitions.
Have questions regarding the legal status of cannabis had an effect on patent activity?
The Dept. of Justice’s view of cannabis has had little apparent impact on patent activity. Some of the fundamental work on the medical potential of cannabinoids, in actuality, was patented by the US Dept. of Health and Human Services (US 6,630,507) in 2003. I don’t feel that the legal status of cannabis has constrained pharmaceutical sector patenting, but the introduction of markets by legalization and from the entrance of cannabinoids into medical practice could very well stimulate new activity.
Where are there the largest opportunities for those who wish to file patents in the cannabis industry?
Small and midsize companies have spotted various opportunities. The three subject matter categories noted earlier are still active, particularly the therapeutic use of cannabinoids. New niches and areas of specialty have opened up, such as (1) specific cannabinoid and terpene profiles and formulations which have more effective biological availability for use in beverages, foods, and medicine, and (2) industrial scale fermentation approaches to production (i.e., not plant-based) that can potentially deliver specific, quality-assured cannabinoid profiles. I am not aware of any patent infringement lawsuits filed by large pharma against smaller businesses to curtail their innovative or commercial activity.
Can cannabis plants being patented?
Yes, this is currently a small field of activity, but may also represent a chance. Plants could be patented in two ways, by way of “utility patents” (such as 95% of all patents) or by means of a different “plant patent” category. Utility patents are much stronger; plant patents are narrowly focused on a single “parent” plant and its direct descendants. By my count, there are now only 5 US plant patent cases (4 pending applications, 1 issued patent), and 11 utility plant-directed patent cases (8 pending applications, 3 issued patents). GW is notable for having the biggest cannabis-directed portfolio (80+ US cases) of all companies in the area, and is particularly focused on methods of treating ailments.