Cannabis, both medical and recreational, remains illegal at the federal level. Prohibition is technically the law of the land, but the U.S. Patent and Trademark Office (USPTO) will still approve cannabis-related patents like any other.
One interesting consequence of this status quo is the difficulty of finding official information on prior art for cannabis-related products, even if the invention under review already exists.
As Malathi Nayak explains in Bloomberg News:
The patent office faces some challenges when reviewing a cannabis patent applications, attorneys say. There is limited information available on prior inventions and already-known information when it comes to the emerging cannabis industry, Cynthia Hardman, a partner at Goodwin Proctor LLP told Bloomberg Law.
By comparison, with a typical pharmaceutical patent, a patent examiner can comb through databases on previous inventions recorded in scientific and medical journals, prior patents, and other sources.
“The patent office may issue patents that have a hidden invalidity problem,” Hardman said. “That, in fact, the subject-matter was known and in use before the patent application,” she said, referring to cannabis-related inventions.
For context, “prior art” is a term that describes information already available to the public, making the patent in question invalid due to lack of novelty. The ability to find prior art is crucial to determine the validity of a patent: if something has already been thought up, granting a monopoly to someone who takes the idea does nothing to encourage innovation.
As legalization becomes more popular in the states and the cannabis industry continues to organize, it will be interesting to watch these developments unfold. But the difficulty in accessing prior art that likely already exists raises an interesting question: if we find innovation in a market that has been underground for most of its modern history, what does this say about the necessity of patents to encourage innovation more broadly?
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