Current Landscape of Cannabis Technology Patents

EMILY KELIHER
Santa Clara University School of Law

The legal status of cannabis in the United States presents unique challenges and opportunities for intellectual property (IP) protection. Despite cannabis’s continued classification as a Schedule I controlled substance under the Controlled Substances Act (CSA), the cannabis industry has grown to a $33.5 billion market as of 2023. Companies in this sector rely on IP protection, particularly patents, to safeguard their innovations and maintain a competitive edge in an increasingly crowded market.

Patents are particularly valuable, offering exclusive rights to technology, formulations, and processes for up to 20 years. However, cannabis patent prosecution and enforcement are fraught with obstacles, including the federal illegality of cannabis, limited prior art, and the stigma surrounding the industry. Patent examiners often lack access to comprehensive cannabis-related prior art, potentially leading to overly broad patent grants, while enforcement is complicated by the reluctance of federal courts to award equitable relief in cases tied to federally illegal substances.

Nonetheless, cases such as Insys Development v. GW Pharma and Gene Pool v. Coastal Harvest illustrate that cannabis patents can hold value, even amidst legal uncertainties. The high costs and risks associated with patent litigation remain a significant barrier, as seen in cases like UCANN v. Pure Hemp Collective. As the cannabis market continues to evolve, IP protection will play a critical role in driving innovation and ensuring the long-term viability of companies operating in this legally complex industry.