The last decade witnessed a dramatic increase in state-based legalization of recreational and medical cannabis use.1See Steve Brachmann, U.S. Cannabis Inventions on the Rise as Legal Marijuana Market Grows, IPWATCHDOG (Feb. 19, 2019), https://www.ipwatchdog. com/2019/02/19/us-cannabis-inventions-on-rise-legal-market-grows/ id=106499/ [https://perma.cc/P8R4-6HYY]. As states changed cannabis’s legality, inventors moved to establish a claim on the new marketplace by seeking intellectual property protection.2See id. Correspondingly, the number of cannabis-related patents filed at the U.S. Patent and Trademark Office (PTO) increased tremendously.3See id.
This Note explains the problems that surround cannabis patents. Part I provides an overview of patent law and discusses cannabis’s regulatory history. Part II expands on the topics discussed in Part I and explains how the lack of prior art within the cannabis space promulgates uncertainty for cannabis inventors. Part III argues for stronger claim requirements in cannabis patents and advocates for greater flexibility when factfinders evaluate cannabis patents. Further, Part III suggests alternative approaches to claim construction for challenged cannabis patents.
To read this Note, click here: Patenting Pot: The Hazy Uncertainty Surrounding Cannabis Patents.