“Stigma is Going Away”: Cannabis IP is Thorny, But Not Impossible

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software developers. “It’s usually done through an app, and it allows the user to go in and do things like track exactly what they’re consuming—how much and when, what the effects are,” Whiteman says. The aggregated information collected by the apps helps cannabis companies and manufacturers obtain customer feedback they can then use to tweak their products.

Wana has sought partnerships as opposed to hiring its own in-house team of scientists to do research because it reduces the time it takes to get new products to market, Whiteman says. Cannabis conferences often provide networking opportunities that connect researchers to marijuana businesses, but Whiteman says the bulk of the industry’s R&D is happening outside of the federal drug approval process.

“We have focus areas, but innovation is happening all over the board,” she adds, saying that a company would need a ton of resources to cover it all. ”A lot of companies are looking at it like the supplements market instead of pharmaceuticals, to be ready in case federal regulations change.”

Even though there is no federal pathway to cannabis IP protection, some states are developing their own frameworks for approving trademarks and patents. Last year, California’s secretary of state announced that entities would be able to register cannabis-related trademarks or service marks as long as the mark is lawfully used in state commerce, and the specification matches the classification of goods and services established by the U.S. Patent and Trademark Office.

Another layer of protection, California Senate Bill 185, introduced Jan. 30, is moving through the legislative process. The bill, now being discussed in committee, proposes that applicants would be allowed to use specified classifications for marks related to cannabis, including medicinal cannabis, goods, and services that are lawfully being sold in accordance with existing rules. Supporters say these designated classifications for cannabis products would streamline the state trademark registration process and provide greater IP security to cannabis companies.

However, in a 2015 paper on IP challenges for the marijuana industry, the University of Denver College of Law’s Sam Kamin and Viva Moffat wrote, “[Federal] IP protection is generally not available to marijuana businesses. … But state IP doctrines and related regulations were not created for the purposes they are being asked to serve and are often poor substitutes for federal protection.”

Michigan does not currently have a state patent process for cannabis IP, Hovey says.

“There’s a lot of opportunity, but we still have a long way to go,” he continues, referring to the state’s cannabis industry in general. “A lot of the stigma is going away, but there is far more than you’d have with any other industry.”

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