Watching the Pot™ (Feb. 2022)

We have been closely monitoring patent litigation in the cannabis space, including suits related to cannabis extraction technology such as the action filed in 2020 by cannabis juggernaut Canopy Growth against GW Pharma (maker of Epidiolex) in the Western District of Texas.¹ As an update, on February 22, 2022, the docket in that case posted a joint stipulation and motion to enter final judgment “subject to the parties’ right to appeal” and, in particular, subject to plaintiff Canopy Growth’s right to appeal the district court’s claim construction ruling on the term “CO2 in liquefied form under subcritical pressure and temperature conditions.”² Assuming grant of the parties’ joint stipulation, this matter could be headed to the Federal Circuit for review of Judge Albright’s claim construction order issued on November 27, 2021.³ If this comes to pass, it will be the first appeal of a cannabis-related patent to reach that appellate court—and certainly one to watch for those interested in how cannabis-related patents are being handled by the judiciary. The typical timeline for such an appeal is on the order of a year, so we will keep you posted.

While Canopy Growth’s suit is the highest profile of the extraction disputes to date, it is certainly not the only one. As we previously reported, Gene Pool Technologies, Inc. filed two suits in California—recently consolidated—asserting patents related to cannabis extraction technology.⁴ That consolidated suit against Oregon-based ANM, Inc. and California-based Coastal Harvest, LLC asserts patent infringement based on each company’s alleged use of the “ExtractionTek Solutions Modular Extraction Platform 30.” This dispute is still in its early stages, and a challenge by plaintiff Gene Pool Technologies to dismiss the defendant’s claims of inequitable conduct was recently denied, allowing those allegations to remain in the litigation.

Even more recently, California-based The Original Resinator, LLC (“TOR”) filed suit against California-based TTT Innovations LLC, alleging both patent and trademark infringement related to its “processes and equipment for deriving extracts from plants, such as hops, hemp and cannabis.”⁵ TOR’s complaint accuses CO2 adapter kits and industrial equipment sold by TTT.

The flurry of patent litigation in the extraction space underscores the importance of this technology to the emerging cannabis economy. As manufacturing evolves to pace the industrial scale of demand for cannabis products, pharmaceutical and recreational, cannabis processing technology will likely play an increasingly significant role, consistent with these litigation trends.

[1] CBD Extraction Showdown: Canopy Growth Sues GW Pharma (Jan. 2012), available at https://www.sternekessler.com/news-insights/publications/watching-pottm-0.

[2] Canopy Growth Corporation v. GW Pharmaceuticals plc, No. 6:20-cv-01180, ECF No. 53 (W.D. Tex. Feb. 22, 2022).

[3] Judge Albright Construes a Cannabinoid Extraction Patent (Dec. 2021), available at https://www.sternekessler.com/news-insights/publications/watching-pottm-12.

[4] Cannabis Extraction Technology Litigation Updates (Aug. 2021), available at https://www.sternekessler.com/news-insights/publications/watching-pottm-7.

[5] The Original Resinator, LLC v. TTT Innovations LLC, No. 5:21-cv-02002 (C.D. Cal. Nov. 29, 2021).

This article appeared in the February 2022 issue of MarkIt to Market®. To view our past issues, as well as other firm newsletters, please click here.