Cultivators in the United States have been breeding new Cannabis cultivars since the 1960s, seeking to combine or enhance cultivar characteristics such as yield, flavor, aroma, potency, and neurological/physiological effects. Both federal legalization of hemp (i.e., less than 0.3% THC) and increasing state legalization of marijuana have brought about considerable financial opportunities for companies that develop commercially desirable cultivars. But, the development, refinement, and stabilization of Cannabis cultivars requires substantial investments of time and money. However, options for protecting those investments through intellectual property (IP) safeguards remain limited for marijuana cultivars.
Relevant IP protections for Cannabis cultivars include plant patents, plant variety protection certificates, and utility patents. Below, we provide an overview of each; but, before diving in further, we note that the need for seed deposits to obtain certain IP protections may present an insurmountable hurdle. United States depositories will not take seeds or tissue derived from marijuana cultivars (i.e., greater than or equal to 0.3% THC). Industry innovators would be well-served by considering their IP strategy before federal marijuana legalization removes these impediments.
Plant patents protect any new and distinct variety of plant that has been asexually reproduced. Unlike trademark law, patent law has no legal