Recent Trends in Cannabis Patent Litigation From the QE Cannabis Industry Litigation Group

This alert discusses developments in the cannabis patent litigation landscape. In particular, the U.S. Patent Trial and Appeal Board (“PTAB”) has adjudicated its first cannabis-related inter partes review (“IPR”) (Insys Development Company, Inc. v. GW Pharma Limited and Otsuka Pharmaceutical Co. (IPR 2017-00503)), and the first cannabis-related patent infringement suit is currently being litigated in federal district court (United Cannabis Corp. (“UCANN”) v. Pure Hemp Collective, Inc. (D. Colo. No: 1:18cv-01922-NYW)). We also address the current law regarding obviousness (35 U.S.C. §103(a)) and patent-eligible subject matter (35 U.S.C. §101) in the context of cannabis patents.

Overview of Cannabis-Related Patents -

Despite differences in cannabis’s legal treatment between (and across) state and federal levels, the U.S. Patent Office has allowed cannabis-related patents, and the U.S. Government even holds a patent for certain uses of cannabinoids as antioxidants and neuroprotectants that was issued in 2003. Since 1995, the filing and issuance of cannabis-related U.S. patent applications has increased significantly – indeed, more than half of all cannabis patent applications have been filed in the past 25 years. The upward trend in the filing and issuance of cannabis-related patents may be due, in part, to more recent changes in cannabis laws that have helped spur industry innovation. As of the publication of this alert, medicinal use of cannabis is legal in 33 states, recreational use is legal in 10 states and the District of Columbia, and 13 states have decriminalized possession. The U.S. Food and Drug Administration (FDA) has approved three products containing cannabinoids as drugs—Dronabinol (synthetic delta-9-tetrahydrocannabinol or “THC”), Nabilone (a chemical derivative of THC), and Epidiolex (cannabidiol or “CBD”). Regardless, disparities in cannabis’s legal status has not yet served as an impediment to patentability or the ability to enforce cannabis-related patents in federal court.