Patenting Marijuana Strains: Baking Up Patent Protection for Growers in the Legal Fog of this Budding Industry

– Joseph Dylan Summer

The current state of the law regarding the patentability of marijuana and cannabis products is murky. Despite the fact that several states have legalized the medical and/or recreational use of marijuana, federal law continues to explicitly prohibit the use, distribution, and cultivation of cannabis under the Controlled Substances Act (CSA). Due to changing state laws and the growing public support for marijuana decriminalization, the author of this Note suggests several options for legal changes that would allow cannabis cultivators to patent unique marijuana strains. The author provides three possible avenues for moving forward: (1) Congress could enact legislation to resolve the conflict between federal and state laws; (2) the president could change the status of marijuana from a Schedule I narcotic to Schedule II or less; or (3) the United States Patent and Trademark Office (USPTO) could issue a patent for a cannabis strain to demonstrate the patentability of individual cannabis strains. Although cannabis cultivation has been federally prohibited, policy concerns underlying plant patents and Federal Circuit case law demonstrate cannabis varieties are likely patentable. This Note highlights the change in the public acceptance and legality of marijuana and asserts that patenting individual strains of marijuana may spark innovations in cannabis varieties.

Abstract Written by Rebekah A. James, 2018