Watching the Pot™ (Aug. 2021)

We previously predicted that, as the cannabis patent landscape matures and the number of cannabis patents reaches a critical mass, litigation in this field will increase.¹

We have been monitoring the patent litigation between Canopy Growth Corporation and GW Pharmaceuticals plc involving cannabis extraction technology, which is currently pending in the Western District of Texas.² More recently, patent infringement suits have been filed by Gene Pool Technologies, Inc., also asserting patents related to cannabis extraction technology.³ These suits are notable as further activity in this important commercial and technological space.

Extracts of cannabinoids, like cannabidiol (CBD) and tetrahydrocannabinol (THC), as well as full-spectrum cannabis extracts, are often the foundation for commercial products (e.g., oils, edibles, formulations). Extracts may also be commercial products in and of themselves. The modern extraction process is often facilitated by high-tech machinery and chemical processes, including alcohol extraction, hydrocarbon extraction, and CO2 extraction. However, as demand has grown for more extraction options, niche processes have emerged, including ultrasound-assisted extraction, hydrodynamic extraction, and (believe it or not) extraction by live bees.⁴

As the cannabis patent litigation landscape matures, it is worth taking note of strategies that have been used in other commercial contexts, including in the bio-pharma and high-tech industries.⁵ We continue to monitor the dockets for cannabis-related intellectual property litigation, providing periodic updates about important or informative decisions.

[1] Patent Demand Lessons For Cannabis Cos. From Big Tech, Law 360 (Mar. 2020), available at https://www.sternekessler.com/news-insights/publications/patent-demand-lessons-cannabis-cos-big-tech

[2] GW Pharma Seeks Dismissal of Patent Suit Filed in Texas by Canopy Growth (Mar. 2021), available at https://www.sternekessler.com/news-insights/publications/gw-pharma-seeks-dismissal-patent-suit-filed-texas-canopy-growth

[3] Gene Pool Technologies, Inc. v. ANM, Inc., No. 1-21-cv-01154 (D. Or. Aug. 6, 2021); Gene Pool Technologies, Inc. v. Coastal Harvest, LLC, No. 5-21-cv-01328 (C.D. Cal. Aug. 6, 2021).

[4] Artisanal Edible Cannabis Honey Causes A Buzz, Forbes (Nov. 19, 2018), available at https://www.forbes.com/sites/sarabrittanysomerset/2018/11/19/artisanal-edible-cannabis-honey-causes-a-buzz/?sh=27f859b8718d.

[5] What Cannabis Patent Applicants Can Learn From Biopharma, Law 360 (Jan. 2019), available at https://www.sternekessler.com/news-insights/publications/what-cannabis-patent-applicants-can-learn-biopharma.

This article appeared in the August 2021 issue of MarkIt to Market®. To view our past issues, as well as other firm newsletters, please click here.