Protecting cannabis cultivars in the United States: utility patents, plant patents, and plant variety protection certificates

Larry Sandell

Chapter 7 in Intellectual Property and Cannabis, 2025, pp 138-159 from Edward Elgar Publishing

Abstract: Even as marijuana remains federally illegal in the United States, the U.S. government offers three distinct, but overlapping forms of intellectual property protection to protect cannabis cultivars and related genetic technologies – utility patents, plant patents, and plant variety protection (“PVP”) certificates. While utility patents can be broad and arguably offer the most powerful competitive advantages to cannabis plant inventors among the three, they are often the most difficult and resource-intensive to obtain. Unique to the U.S., cannabis plant patents are directed only to asexually reproduced, genetically identical clones. PVP certificates have been issued for stable hemp seeds and clones – but not marijuana – by the U.S. Department of Agriculture, substantially as dictated by the international Union for the Protection of Varieties of New Plants (“UPOV”) convention. Many cannabis breeders and inventors have already perfected U.S. IP rights under these three forms, providing examples for other industry participants who wish to ensure that the fruits of their labors will not be unfairly co-opted by copyists – either now or in the foreseeable future, during the expected mass expansion of the U.S. marijuana market following federal legalization.

Keywords: Cannabis IP; Utility patents; Plant patents; PVP; Cultivar protection; Proprietary strains (search for similar items in EconPapers)
Date: 2025
ISBN: 9781035329380
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