Spare a thought for plant patents, which are often the forgotten children of the patent system.
While utility patents address “any new and useful process, machine, manufacture, or composition of matter . . . ” (e.g., the better mousetrap) and design patents address “any new, original and ornamental design for an article of manufacture . . . ” (e.g., the design of a Coke® bottle), plant patents address “any distinct and new variety of plant, including cultivated sports, mutants, hybrids, and newly found seedlings, other than a tuber propagated plant or a plant found in an uncultivated state . . . .”
What this means is that plants found in nature are not eligible for patent protection, while transgenic plants—such as Roundup Ready® soybeans—are the subject of utility patents. Therefore, plants eligible for plant patent protection are newly‑created varieties of known plants (albeit with some exceptions beyond the scope of this post).
Plant Patents – Few and Far Between
Perhaps the most famous example of a patented plant variety is the Hass avocado. The plant patent issued in 1935 and may have been the first obtained for the fruit of a tree. Interestingly, a plant patent obtained for the “Carla” variety of avocado—which is larger than a typical Hass avocado—has been the subject of a recent lawsuit as to whether the defendant had the legal right to sell patented Carla avocados rather than any other variety of avocado. If avocado plant patents were interesting enough, we now have a patented variety of hemp.
About the “Hemp Plant Named ‘CW2A’” Plant Patent
The plant patent, entitled “Hemp Plant Named ‘CW2A’,” was derived by selective breeding, the primary goal of which was the development of “a new hemp variety with high cannabidiolic acid (CBDA) concentrations and low tetrahydrocannabinolic acid (THCA) concentrations in its mature female flowers.” Importantly, the amount of tetrahydrocannabinol in the variety is 0.13‑0.27%, which brings the plant neatly within the 2018 Farm Bill’s definition of industrial hemp.
Everything seems in order, but there are questions upon closer review. The application that issued as the plant patent was filed before the enactment of the 2018 Farm Bill, which means that propagation of CW2A seemingly contravened the Controlled Substances Act. If so, filing the application would be an admission of proscribed conduct!
What’s Next for Hemp Patents
I have previously questioned whether utility patents on cannabis‑related material meet the utility requirement. Because there is no utility requirement for plant patents—the utility of some plant varieties is simply being pretty—the plant patent obtained for CW2A will not be the last plant patent obtained for a hemp variety. Rather, we anticipate seeing significant activity in this area in the coming years.
Also notable is the speed of prosecution: little over a year passed from the filing of the application to the issuance of the plant patent. For example, a typical utility patent application has an average total pendency of about 24 months. Certainly, it is gratifying to see a federal agency making some swift progress in this industry.
If you have any questions about this post or any other related matters, please feel free to contact our Cannabis Law Practice Group.