Cannabis and patents 101

Harrison Jordan interviews a patent lawyer with experience in the cannabis industry

As the Canadian cannabis industry continues to expand innovations will flood the market. The patent is a robust piece of intellectual property that can be filed across many different industries, and cannabis is no exception. We asked David Wood, a trusted lawyer at Borden Ladner Gervais in Calgary with clients in the Canada’s ACMPR regime, to tell us a bit about patents and their interaction with the cannabis plant.

So just what can be patented? “Let’s start here,” David told Lift. “Here’s my favourite way of putting it. You’re planting a seed, growing the seed, harvesting the stuff you’ve planted, the outcome of that could be flowers or a vape cartridge and anything in between. Any of those steps can be optimized and patented. Look at something like extraction. The way you do that stuff is full of details. If you come up with some new details that really improve efficiencies, you can get patents on that.”

The main forms of patents are for “methods, devices, and what is called a composition of matter,“ Wood said. “And if you’re patenting a plant, that’s what you would get. It still has to be new, so that gets very tricky with plants.”

Generally if something is a technology that is created and it is new and inventive, you can get a patent on it. “Patents protect technological innovations. People call them inventions. If the patent office considers your development, as it's been described, to be an invention, to be new, you can get a patent on it.”

What are some parts of the cannabis industry that are ripe for an explosion in patents?

“Something the Lift readership might appreciate is home-growing. That whole industry is going to be made easier and easier by technology. I’ve already met 3 or 4 companies that sell  a thing that sits in your house in which a plant grows inside.”

We asked Wood about US patent number 6,630,507, a patent held by a United States government agency that some cannabis activists have claimed is proof the US federal government knows the medicinal benefits of cannabis, and that they hold wide-ranging rights to cannabis as a medicine.

“Some people think it’s a tacit admission by the US government that cannabis has medical benefits,” Wood told us.

Can the US patent prevent others from using cannabis?

“I seriously doubt it. It’s not a concern because that patent was filed in the late 1990s. Let’s pretend it was 1995, as long as you’re doing something that people did before the patent application, you’re not liable for patent infringement because you’re doing something that existed prior, so it’s impossible to patent.”

Finally we asked Wood about what are colloquially termed patent trolls. Will they be coming to Canada soon? Wood thinks it’s a problem particular to the United States but that it could creep up into Canada.

“In the states you have many smaller participants who are less sophisticated. I think in that environment you’re going to find more people who (a) have money, and (b) are going to choose not go down the path that will cost a lot of money. The whole practice with a non-practicing entity is that they just have a lawyer on staff that doesn’t charge by the hour. It definitely happens—there’s nothing really stopping this.”

Wood was also quick to tell us that it won’t just be patents that will drive the future of the industry, but also trademarks, copyrights, and trade secrets, pointing to the home grow boxes that are coming on the market.

“Talking more broadly about IP, some of those companies enter into an agreement with you where you get ongoing support and function and updates, but in exchange they obtain the same information you use to optimize your growing.”

Wood believes the new Cannabis Act is ripe for innovative technologies to swoop in, and he thinks the practice of combining cannabis with patents will only become bigger as cannabis becomes more accessible.

- Harrison Jordan

Featured image via Wikipedia.

In this article

Join the Conversation