Can You Patent Pot?

Overflowing marijuana buds in glass jar close up with a blurry background
By Christopher Coble, Esq. on July 16, 2019 6:00 AM

Your state just legalized it. You want in on the billion-dollar cannabiz boom. And you've got a particular strain of that sticky icky that you think will set your marijuana startup ablaze. (In a good way.) But how do you protect your intellectual property in a burgeoning yet quasi-legal industry?

After all, the federal government still lists marijuana as a Schedule I illegal narcotic, and it's that same federal government that issues patents, trademarks, and copyright protections. Is filing for a patent on your exclusive Purple Urkle-Zombie Killer-Schnazzleberry hybrid just asking for trouble with the DEA? Here's a look:

Have No Fear ...

While there's no general prohibition on patenting potentially illegal products, weed trademarks may be met with additional scrutiny. "Applications for trademarks used on regulated products (e.g. cannabis, drug paraphernalia, ivory, whalebone) and activities (e.g. gambling and wagering, retail stores featuring controlled substances) are subject to additional review," according to the U.S. Patent and Trademark Office. "The USPTO may inquire about your compliance with federal law before issuing a registration. If your goods, services, or trademark violate federal law, we will issue a refusal."

That doesn't sound like great news. But the PTO has been issuing an increasing amount of pot-related patents the past few years, new plant varieties may be patented under federal law, and the government just issued new guidance for trademarks for cannabis and cannabis-derived goods and for services involving cannabis and cannabis production in light of the 2018 Farm Bill which legalized hemp. This is all a long-winded way of giving you the most accurate answer to any legal question: "It depends."

Weed Patents Are Here?

If you're getting into the weed biz, you already know that overlapping -- and at times conflicting -- federal laws, state statutes, and local ordinances can create a legal quagmire. But that's what good lawyers are for. So rather than risk someone stealing your proprietary marijuana strain, or potentially infringing on a competitor's patent or trademark yourself, contact an experienced intellectual property attorney in your state.

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