Cannabis Patent Q&A

On June 14, 2022, Harris Bricken attorneys Fred Rocafort, Jihee Ahn, Paul Coble, and Vincent Silwoski presented a webinar entitled Protecting, Monetizing and Enforcing Cannabis Intellectual Property. Attendees submitted many great questions before and during the webinar, but our IP attorneys were not able to answer all of them. In this post, we will answer the cannabis patent questions that were not addressed in the webinar.

What do you think about using the Plant Variety Protection Act to protect strains?

The Plant Variety Protection Act (PVPA) can provide protection for both asexually and sexually reproducing plants, like cannabis. The pseudo-patent protection available under the PVPA prohibits other from marketing, selling, delivering, exchanging, transferring, or multiplying a protected strain. However, current practical realities make PVPA protection unavailable for most cannabis patent strains. The PVPA includes a strict requirement that at least 3,000 seeds of the claimed plant species be deposited with the U.S. Department of Agriculture in Fort Collins, CO. The USDA will not accept any deposits for plants that are classified as controlled substances, including cannabis. In other words, for the time being, PVPA protection is unavailable for cannabis plants that do not qualify as hemp (less than 0.3% delta-9-THC).

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