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Medical Cannabis Recreational Cannabis What's Being Patented? CBD & Trademarks Lawful Use in Commerce Kieran Doyle- Partner, Cowan, Liebowitz & Latman RADAR DETECTORS; FOR: DETONATING FIREWORKS; FIREWORK FOUNTAINS; FIREWORKS: FIREWORKS IN SHELL FORMS, IN CLASS 13 FOR: LEGAL PROSTITUTION SERVICES IN CLASS 45 CLEAR THE MARK Rely on Common Law Rights State Applications VAPOR ROOM Medical marijuana dispensary Register the Copyright in the Designs Register Around The Edges allbud Providing a website for commercial purposes featuring ratings, reviews, referrals, information and recommendations relating to businesses, service providers, events and products in the medical marijuana industry CBD and Trademarks Brand Protection Strategies for CBD Sarah E. Bro - Partner, McDermott Will & Emery LLP CBD and Trademarks • CBD - short for cannabidiol • One of over 100 cannabinoids found in the hemp plant • CBD, unlike THC, is non-psychoactive CBD and Trademarks • Use of a trademark in commerce must be lawful under federal law to be the basis for federal registration under the U.S. Trademark Act • Cannabis remains a Schedule I controlled substance under the federal Controlled Substances Act (CSA) • U.S. trademark applications listing cannabis-based goods or services must still be refused registration by the United States Patent and Trademark Office (USPTO) CBD and Trademarks • With the passage of the 2018 Farm Bill, the federal government removed “hemp” from the CSA’s definition of marijuana • Cannabis plants and derivatives such as CBD that contain less than 0.3% THC are no longer controlled substances under the CSA • To keep up with this change in the law, the USPTO issued Examination Guide 1-19 pertaining to the review of trademark applications listing CBD-related goods and services CBD and Trademarks • Under the updated guidelines, certain types of CBD-related goods and services will still cause a trademark application to receive an unlawful use refusal from the USPTO • Food Drug & Cosmetic Act (FDCA) continues to ban foods or dietary supplements containing added CBD • Trademark applications designating goods/services that fall outside of the FDCA ban, might now be approved for federal trademark registration by the USPTO – CBD-infused skincare products; cosmetics; non-ingestible topicals CBD and Trademarks • Other trademark protection strategies: – Apply for federal registration in relation to ancillary goods and services (e.g., retail, informational websites, clothing merch) – Consider state vs. federal trademark registration strategies for goods/services still banned under the FDCA – Rely on existing trademark registrations • Review prosecution history re: any previous statements relating to hemp or cannabis products CBD and Trademarks • Trademark Selection and Clearance: – Avoid popular industry lingo • Cannabis strains are considered “merely descriptive” – Consider traditional brands and goods/services in comparisons • Trademark Enforcement Considerations: – Consider trademark prosecution history (Woodstock Ventures LC et al. v. Woodstock Roots LLC) – Common law trademark rights might not carry against federal trademark infringement claims (Kiva Health Brands Inc. v. Kiva Brands Inc.) Examples of Registered CBD Trademarks U.S. Trademark Goods/Services Owner CBDOOBIE and Design (Int'l Class: 34) Euphoric Smoke LLC (Florida Limited Liability Company) Herbs for smoking; the foregoing containing lawful CBD derived from the mature stalks and 5900 Stirling Rd St 2B Hollywood sterilized seeds of the industrial hemp plant Florida 33021 RN: 6021466 SN: 87878553 Registered March 31, 2020 Int'l Class: 34 First Use: December 15, 2015 Filed: April 16, 2018 HOT MESS KUSHMETICS (Int'l Class: 03) Hangover Soap Co. L.L.C. (Nevada Limited Liability RN: 5999580 Bath bombs; Body butter; Body lotion; Bubble bath, all of the foregoing containing CBD derived solely Company) SN: 87926486 from cannabis with a delta-9 THC concentration of not more than 0.3% on a dry weight basis 2230 Shaw Circle Las Vegas Nevada 89117 Registered March 3, 2020 Int'l Class: 03 First Use: September 1, 2017 Filed: December 20, 2018 Patenting in the Cannabis Industry Gretchen L. Temeles, J.D., Ph.D. Duane Morris, LLP Patenting cannabis and cannabis products: legal framework • Cannabis is a Schedule 1 drug under US federal law • USPTO permissive approach to patentability • human organisms (The Leahy-Smith America Invents Act (AIA) (Public Law 112-29, sec. 33(a), 125 Stat. 284) • special nuclear material or sole purpose as use in an atomic weapon (The Atomic Energy Act of 1954, See 42 U.S.C. 2181(a)) • Schedule 1 status of cannabis is not relevant to patentability • Schedule 1 status of cannabis may not be relevant to patent challenge or enforcement Cannabis patents and applications: trends Cannabis patents and applications Cannabis legalization Cannabis Patents and Applications Cannabis Legalization: Number of US States 80 35 70 30 60 25 50 20 40 15 30 10 20 10 5 0 0 2010 2011 2012 2013 2014 2015 2016 2017 2010 2011 2012 2013 2014 2015 2016 2017 US granted US applications PCT applications Medical cannabis recreational cannabis What's being patented? • plants: utility patents to new varieties, plant patents, genetically engineered plants • cultivation technology: methods of growing, equipment for supporting growth • processing: methods of extracting and processing active ingredients from cannabis plants • products: extracts, oils, resins, foodstuffs, beverages, nutritional supplements, cosmetics, animal feeds, veterinary products • medical cannabis use: treatments of diseases or disorders-cancer, pain, epilepsy, addiction • consumption devices: vaporizers, nebulizers, inhalers, rolling papers, beverage dispensers • detection and chemical analysis The PTAB case: Insys Development Company, Inc. v. GW Pharma Limited and Otsuka Pharmaceutical Co (IPR 2017-00503) • PTAB decision issued January 3, 2019 • Parties: o Petitioner/challenger: Insys Development Company o Patent holder: GW Pharma • US Patent No: 9,066,920 • PTAB found claim 1 invalid over references published before the filing date: o 1. A method of treating partial seizure comprising administering cannabidiol (CBD), to a patient wherein the CBD is present in an amount which provides a daily dose of at least 400 mg. • PTAB did not agree that combination claims were invalid: o 3. The method of claim 1, wherein the CBD is used in combination with tetrahydrocannabivarin (THCV). The Federal court case: United Cannabis Corporation v. Pure Hemp Collective, Inc. (Case No.: 1:18-cv-01922-NYW) • Patent infringement case filed July 30, 2018 in the U.S. District Court for the District of Colorado; case is pending • Parties o Plaintiff (patent holder): United Cannabis Corporation (“UCANN”) o Defendant (accused infringer): Pure Hemp Collective (“Pure Hemp”) • UCANN asserted that Pure Hemp was infringing one or more claims of its patent, U.S. Patent No. 9,730,911 (“the ’911 patent”) • Pure Hemp denied infringement and counterclaimed that the claims of the ’911 patent are invalid UCANN v. Pure Hemp: Issues • Exemplary asserted claims: o 1. A liquid cannabinoid formulation, wherein at least 95% of the total cannabinoids is tetrahydrocannabinolic acid (THCa). o 10. A liquid cannabinoid formulation, wherein at least 95% of the total cannabinoids is cannabidiol (CBD). • Pure Hemp’s invalidity arguments o Claims are invalid because they are directed to patent ineligible subject matter ("natural phenomena, namely cannabinoids and terpenes found naturally in the cannabis plant”) o Claims are invalid because they are anticipated by or obvious over references describing substantially pure liquid CBD and THC products; known to the public for at least 50 years before the filing date of the ’911 patent Patenting in the Emerging Cannabis Industry- strategic considerations • Patent term is 20 years in US o businesses seeking patent protection now in anticipation of federal legalization and ability to enforce patent rights in federal court o businesses with strong patent portfolios now may be at a competitive advantage as the industry matures and consolidates • Value of patent landscape analyses • Global industry o cannabis legalized in other countries; international filings IP Protection of Cannabis Plants Dale Hunt, PhD, JD-Plant & Planet Law Firm, San Diego PlantAndPlanet.com Cannabis IP Protection: 3 forms in U.S. US: 2 Federal Agencies – 3 Forms of Protection United States Department of Agriculture (USDA) 1. Plant Variety Protection (PVP) Certificate United States Patent & Trademark Office (USPTO) 2. Plant Patent 3. Utility Patent ROW UPOV ~75 Countries and Regional Authorities Plant Breeder’s Rights (same approach as USDA PVP) 1. USDA PVP • Only available for “industrial hemp” (below 0.3% THC) • Protection also for clones – USDA still working on details • Requires seed deposit • Must be filed within one year of first public access or commercial sale • Requires testing for Distinctness, Uniformity, and Stability • Important exemptions – these things do NOT infringe a PVP • Using the protected cultivar in a breeding program to develop other, distinct cultivars • Saving seed from one harvest to replant the same acreage 2. USPTO Plant Patent • Available for any form of Cannabis, regardless of THC level • Only protects asexual propagation • No seed deposit or DNA information required* • Must be filed within one year of first public access or commercial sale • Strictly “paper” examination • Breeding history and comparison with parents and similar cultivars • Description of asexual propagation and selection, stability
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