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On Behalf of | Dec 30, 2015 | Wang IP Law Blog

The intellectual property rights of medical marijuana are hard to protect because it is currently illegal in a majority of the United States. It is nearly impossible to obtain a patent on marijuana even though there is no law that explicitly prevents patents on illegal substances. The medical marijuana industry is blooming, and while many marijuana growers are developing their own strains of marijuana, they have no way of protecting their product.


In the Unites States, only four states allow adult recreational use of marijuana while 23 states and the District of Columbia allow the medicinal use of marijuana. Under the federal law, marijuana has “no accepted medical use” and is on par with drugs such as cocaine.

In the past year, there has been a 50 percent increase in the amount of cannabis-related patent applications but the total amount of applications is only slightly more than 100. Interestingly, The United States obtained a patent on marijuana as a medicine in 1999, four years before it was deemed to have no medical use.

The legalization of marijuana will most likely be on the California ballot in 2016. This has always been a polarizing issue because of the debate surrounding the benefits of marijuana. Experts in the business are trying to capitalize on the legalization of marijuana and the subsequent intellectual property rights that can be obtained.

Growing Concerns

Investors are also becoming more interested in investing in marijuana companies after governor Jerry Brown signed a regulation that allows medical marijuana companies to accept investors. The investors’ main priority is to make sure the intellectual property rights of these companies are secured before investing in them.

Marijuana strains must be protected with a patent because the plant is self-replicating. Once a marijuana plant is sold, it can easily be copied. Marijuana growers have a right to protect their intellectual property but it is extremely difficult to obtain especially when they are unaware of the benefits intellectual property rights.

Some growers are worried that once marijuana is legalized, large corporations or other pharmaceutical companies will steal their work and patent their products first. Once a large corporation obtains a patent, they have enough resources to continuously sue anyone seeking a similar patent. Since smaller companies and individuals that grow marijuana do not have enough resources to fight long legal battles, it will be easy for large organizations to dominate the marijuana market.

Intellectual Property Rights Behind Marijuana

The USPTO has received many applications for patents on new types of marijuana plants, but there is little that can be done to protect the intellectual property behind marijuana. Cannabis-related organizations can obtain trademarks for names and logos as long as it is not tied to the plant itself. Others are trying to patent the process by which the marijuana is harvested, the technology used to extract the active ingredients in cannabis, and the software system for managing marijuana crops.

The biggest struggle for growers of cannabis is protecting the strain. Many in the cannabis industry are relaxed about the process of harvesting cannabis and have little to know knowledge on the value of intellectual property. However, with the lack of legal protection for their products, marijuana growers can produce the same marijuana and rename it every other week to generate more business.

Cannabis is still federally classified as illegal because it has no accepted medical use. State-level trademarks can be obtained in the states where marijuana is legal, but it does not offer the same protection as a federal trademark.