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Why Patent Law Is Important to Marijuana Startups

By George Khoury, Esq. on November 10, 2016 | Last updated on March 21, 2019

Many people have been surprised to hear that the US Patent and Trademark Office has not only been accepting applications to patent various strains of marijuana, but it has actually been granting some patents. With numerous states legalizing marijuana for medical and recreational use by adults, speculators are predicting that the big business of marijuana is going to continue getting bigger.

There's nothing new about patenting plants. However, researchers had more to be concerned about before states started legalizing marijuana for medical and recreational use. Now that a handful of states allow recreational use, it is expected that more marijuana patents will be filed.

Can You Patent Something Illegal?

While marijuana is still technically a Schedule 1 illicit substance under the Federal Controlled Substances Act, the USPTO does not have any prohibition against issuing a patent for something that may or may not be illegal. In fact, one company has been issued over 25 patents already. The fact that marijuana strains are being patented may come as a shock to patent attorneys, and the proof can be found right on the USPTO's website.

However, weapons and other dangerous items are regularly granted patent protection, although there are some restrictions to what can receive patent protection.

What California's New Recreational Cannabis Law Means for the USPTO

California just passed a law allowing adults over the age of 21 to possess, buy, grow and use marijuana. Additionally, the law will allow retail sale of marijuana once the legislature sets up the regulatory framework. This means that the marijuana industry will likely be increasing in size to accommodate a state as large as California, with close to 40 million residents. With the anticipated increase in the legal pot industry, the USPTO can expect to see more patents applications getting filed for marijuana strains and related products.

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