By Zareefa B. Flener In  Posted 

            So what about this “gateway drug” marijuana? The United States (“U.S.”) legal definition of marijuana (marihuana) is provided as meaning all parts of the plant Cannabis sativa (L.), but with the caveat that the term does not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination. 21 U.S.C 802(d) (16).

          There was a time not too long ago when alcohol was prohibited across the nation and the black market was thriving. After Prohibition, and yes there was an “after Prohibition,” the United States alcohol taxes were set low at first and later, after the black market for alcohol was nonexistent, taxes were ramped up, and problem solved. Legalization of marijuana in various forms, medical use or recreational, leaves the country once again with a conundrum.  Very quickly an industry is being built around legalized marijuana, demanding changes in administration and laws, leaving few corners untouched, including intellectual property protection. Yes, confusion and conflict remains, for example, between the State and Federal government, between various Federal Agencies, and yes, even between patent and trademark law application to this issue.

          As of today, there are twenty-three (23) states that have legalized medical marijuana use. In addition, there are four states (4), and counting, that have legalized recreational marijuana use. Law makers struggle with preparing laws, rules, and legislation that regulates the use and trade of cannabis related goods and services.

            However, at the Federal level, marijuana remains illegal and is listed as a Schedule 1 drug. Schedule 1 drugs are those that are considered by the Federal government as having the following characteristics according the United States Drug Enforcement Agency (“DEA”):

(1)  the drug or other substance has a high potential for abuse;

(2)  the drug or other substance has no currently accepted medical treatment use in the U.S.; and

(3)  there is a lack of accepted safety for use of the drug or substance under medical supervision.

            It is generally understood that no prescriptions may be written for Schedule I substances, and they are not readily available for clinical use.

            Inclusion of marijuana in the List of Schedule 1 Drugs is precarious at best.  Each of these three characteristics are under debate as to marijuana. For example, the first characteristic listed by the DEA is met whereby it has been found that a small percentage of “users” of marijuana are not able to stop using the same. The question remains, therefore, what is a “high potential for abuse”.

            Regarding the second characteristic, the National Institutes of Health, in fact owns an early patent, U.S. Patent no. 6,630,507, directed to Cannabinoids as Antioxidants and Neuroprotectants. This patent, filed as U.S. Serial no. 09/674,028 and issued October 7, 2003, was filed in the United States Patent and Trademark Office, a federal government agency, by the Department of Health and Human Services, another federal government agency. Clearly, the U.S. Federal government recognizes the new and useful potential surrounding marijuana (cannabis, THC), not to mention the various other patents and publications disclosing the usefulness of the plant. The second point, therefore, is also the subject of debate.

            Lawmakers at the State level are struggling with establishing safety standards and regulations even without Federal guidance, which when sorted out may very well render null and void the third characteristic above. Therefore, the United States’ position with regards to marijuana may change over time if it does not fit squarely into the DEA’s characterization of Schedule 1 drugs. 

            This uncertainty trickles down to the United States Patent and Trademark Office (“U.S. PTO”) wherein patentable subject matter may very well include marijuana related strains, methods of treatment, and paraphernalia in the form of designs and utility patents, while at the same time, trademarks related to marijuana goods and/or services are under scrutiny and may be considered “immoral” (because marijuana is a Schedule 1 drug) and therefore not protectable. These contradictory positions at the U.S. PTO may be reconciled as the U.S. debates the prohibition on marijuana and its inclusion on the list of Schedule 1 drugs. In the meantime, those patents and trademarks that do squeak through are food for fodder.

Flener IP Law is a full service intellectual property law firm, and the patent attorneys can provide beneficial monitoring services for, and analysis of, published pending U.S. applications.  Contact us for further information and value-oriented pricing.