Posts Tagged: "marijuana"

To capture attention in the crowded new field of cannabis-related goods and services, many companies are using other companies’ brands to promote their goods and services, including puns in the edibles space. Not surprisingly, brand owners are responding with lawsuits, alleging trademark infringement, dilution, and unfair competition among other claims. The focus of these lawsuits is generally quick injunctive relief to stop harm to the brand, rather than damages. This makes sense because of the uncertainty of collecting from companies who do not rely on the traditional finance services industry. But injunctive relief is not guaranteed without demonstrating the four preliminary injunction factors: (1) likelihood of success on the merits, (2) likelihood of irreparable harm in the absence of preliminary relief, (3) the balance of equities, and (4) the public interest. This article focuses on the first two of these factors.

The shifting status of marijuana from an illegal controlled substance to regulated medicinal product to, in some jurisdictions, legalized recreational activity has created a market that promises to be incredibly valuable in the years to come. An April 2018 report from Grand View Research predicted the global market for legal marijuana products to exceed $146 billion by the year 2025. A 2018 cannabis report by Deloitte forecast Canada’s cannabis market to reach $7.17 billion in total sales during 2019, including $4.34 billion in sales of legal marijuana products. In the U.S., 2017 sales of legal recreational and medicinal marijuana products resulted in revenues of up to $6.6 billion, a fraction of the estimated $50 billion to $55 billion of total U.S. demand for recreational cannabis products. Last year, Reuters reported that the USPTO issued 39 patents containing the word cannabis during 2018 through late November. The USPTO only issued 29 such patents during 2017 and 14 during 2016.

For the innovators capitalizing on the legal growth, distribution, and commercial sale of cannabis, the procurement of intellectual property rights can go a long way in the monetization of their ideas, products, and services. As with any new venture, solidifying an IP protection strategy early on can maximize the benefits of a new invention and minimize risk the of potential infringement. This rings especially true in a field where so few patents, copyrights, and trademarks have been issued… It is not impossible to secure IP rights on cannabis-related inventions, but there are a number of factors to consider and a number of complexities to be aware of.

Early protection of intellectual property rights is a critical component in any business’ efforts to secure a competitive advantage in the marketplace. A recent report has found that patenting activity for cannabis food and drink has seen a large increase in global activity, in the last five years. 242 simple patent families have been filed in 2015, up from only 144 simple patent families filed in 2012. However, not a single food and beverage company was found to be among the top 10 applicants. Is this a sign that food and beverage companies are not well positioned to benefit from ongoing cannabis legalisation?

The suit, filed in the District of Colorado, involves the assertion of cannabis patent claims covering liquid formulations of highly enriched extracts of plant cannabinoids… United Cannabis alleges that Pure Hemp has engaged in willful infringement of the ‘911 patent. Pure Hemp’s Vina Bell 5000mg product, which was purchased and tested for chemical composition by United Cannabis, contains a cannabinoid formulation which allegedly infringe upon at least claim 10 of the ‘911 patent, which claims a cannabinoid formulation wherein at least 95 percent of the cannabinoids is cannabidiol (CBD). United Cannabis attempted to engage Pure Hemp in licensing discussions in early May of this year but Pure Hemp continues to sell the allegedly infringing products without a license.

First, I predict that the United States Supreme Court will find post grant procedures under the America Invents Act to be unconstitutional. It is my belief they took Oil States not as a patent case, but rather as an Administrative State case, and if that is correct this could be the first in a series of decisions over a number of years that will pull authority back from the growing Administrative State and toward the Judiciary. Second, in the event the Supreme Court does not declare post grant challenges unconstitutional, I predict the new USPTO Director will substantially modify PTAB rules and procedures, making them more fair and balanced. Third, again assuming my first prediction is incorrect, I predict the PTAB will continue to ignore Eleventh Amendment immunity and will likewise rule Indian Tribes do not deserve to claim sovereign immunity when in front of the PTAB. This will set up a showdown at the Federal Circuit that will ultimately be settled by the Supreme Court, likely in 2019. Finally, I predict there will be continued discussion about patent reform, with the conversation becoming increasingly pro-patent as Members of Congress continue to see undeniable proof that the U.S. patent system is regressing while the patent systems of the EU and China are on the rise. More specifically, I predict that the U.S. will fall out of the top 10 for patent protection in the annual Chamber IP Index, which will send a shockwave through the Capitol.

After Tam was decided without expressly finding Section 2(a) unconstitutional in its entirety, the Federal Circuit requested additional briefing on the impact of Tam to Brunetti. The government argued that Tam did not resolve the constitutionality of the immoral and scandalous provisions “because the disparagement provision implicates viewpoint discrimination, whereas the immoral or scandalous provision is viewpoint neutral.” While expressing its doubts, the Federal Circuit did not find it necessary to resolve that issue because regardless of whether the immoral and scandalous provisions discriminate based on viewpoint (which requires strict scrutiny), they clearly discriminate based on content (which requires intermediate scrutiny) and the provisions could not survive either level of review.

Increasingly, bitcoin and related cryptocurrencies are becoming the choice for most financial transactions within the nascent marijuana industry as the sector increases in value. North American marijuana sales reached $6.7 billion during 2016 and were expected to rise up to $20.2 billion annually by the year 2021… The USPTO published 390 patent applications related to blockchain tech, the underlying distributed ledger technology supporting bitcoin and other cryptocurrencies, between January and July of this year. That represented a 90 percent increase over the number of blockchain-related patent applications published during the same period in 2016.

Some have dubbed it the modern-day gold rush while skeptics warn of the hostile attitude of the current administration in Washington D.C. Whatever the view there is no denying that the marijuana legalization landscape is contentious and demands attention, including from trademark attorneys who will increasingly see their clients interested in cannabis related business activities, and consequently in obtaining cannabis trademarks.

Google tries to strike a “patent peace” with a new cross-licensing initiative for Android developers. The Federal Circuit is petitioned for review of a judgment in a patent case on the grounds that arbitration flouted public policy. A couple of Texas academic institutions square off in a patent battle over cancer treatments. Also, a House bill moves forward which would make the Register of Copyrights a Presidential appointee.