Cannabis commerce has been experiencing exponential growth, and the industry it fuels continues to thrive and expand. This steady progress has led to solid profits for many companies while also driving advancements and innovations. As the industry develops, so do the technologies and processes involved throughout, and this is blazing the new horizon of cannabis extraction. Progress dictates a need for protection, and the many new advances, creations and products in the extraction space means a focus on the importance of intellectual property (IP) related to these innovations carries more magnitude than ever before.
According to the World Intellectual Property Organization, IP “refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce.” In relation to the cannabis industry, this can relate to any trademark, copyright or patent which allows the creator of an innovation to collect profit and gain acknowledgement from this creation. In the extraction space specifically, IP could be a newly formed technique or tool to aid or improve a process, or other everyday business elements related to logos, trade secrets, goods and services.
While the process of obtaining IP protection is straightforward enough after navigating the bureaucratic compliance involved for most businesses, those in the cannabis space will still face difficulties. Due to the federal government’s stance on cannabis, trademark protection is difficult, if not near impossible for extraction businesses to obtain. The U.S. Patent and Trademark Office states that goods and services related to cannabis do not meet the requirements of the Lanham Act specific to lawful use in commerce. This lack of federal recognition means that innovations in extraction technology may not be able to gain IP protection if said innovation is limited to cannabis.
Although the trademark hurdle may remain until there is a change in cannabis law federally, extraction businesses and innovators can see some protection of their IP by the benefit of applying for patents. Patents due not fall under the Lanham Act, and 35 USC § 101 provides a loophole as it does not designate that patents need to be exclusive to legal activities but rather any, “new and useful process, machine, manufacture, or composition of matter.” However, unlike trademarks, patents expire after 20 years. Extraction professionals may therefore choose to keep their inventions as trade secrets.
With new developments in the extraction industry happening almost daily, it is important for creators and businesses alike to educate themselves on IP protection options in order to guard their creations and enable fair financial gain upon success.
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