Cannabis Company Protects Marijuana Strain Patents


July 18, 2018

By: Matthew G. Miller

Last year, we covered how the USPTO granted Biotech the first patent on a strain of marijuana,. We decided to take a look at what Biotech Institute (BI) has done since then to protect their patent and how this has impacted their IP strategy.

Since obtaining the approval on the first cannabis strain patent, BI has filed a number of “child” applications, all claiming priority to that first strain patent. What that means is that these child applications contain the same subject matter as the “parent” but claim (i.e., seek protection over) a different aspect of this subject matter.

For those who are curious, there are three types of child applications one can file: continuation, continuation-in-part (“CIP”), and divisional:

  1. A continuation application deals with the same subject matter (a strain of cannabis plant, for example), but covers a different scope of protection.
  2. A continuation-in-part application adds additional subject matter that was not originally disclosed in the parent application. There is an important caveat that the additional subject matter will have a new effective filing date of the CIP, not of the original parent application.
  3. A divisional application is a special form of a continuation application that cannot be subjected to a restriction requirement from the patent office.

Specifically, BI has filed five child patent application. These are highlighted in the below table:

Admittedly, those differences are a bit difficult to parse through. In short, they have filed for patent protection of five different, but related strains. While this is speculation, this author believes that the additional strains must be of particular commercial value to BI.

As a reminder, these granted patents will give BI a solid bundle of rights; they will be the only entity allowed to produce, use, sell, offer to sell, or import the covered strains. As recreational and medical cannabis gains favor in more states, these exclusive rights will prove to be more and more valuable.

So in short, kudos again to BI for having the moxy to attempt the seemingly impossible, to get exclusive federal protection over a strain of cannabis. They will certainly reap the rewards in the years to come.