It is hard not to see or hear something about CBD (cannabidiol).  I mean, did you hear that Kim Kardashian had a CBD-themed baby shower.  In case you are not in the know, CBD is a compound found in cannabis. Unlike THC, CBD does not have an intoxicating effect.  CBD is being used for a range of purposes, including alleviating pain and inflammation, reducing anxiety and depression, and for treatment of a variety of diseases, such as Huntington’s and Crohn’s Disease.

CBD has also been making its mark at the USPTO, with more than 1,700 issued patents over the past decade.  Up until a few weeks ago, the patents have not been enforced against anyone.

Enter United Cannabis Corp. v. Pure Hemp Collective Inc. the first cannabis patent case that is taking place in the U.S. District Court for the District Court of Colorado.  Although the case is still underway, a major hurdle has been overcome by United Cannabis Corp (UCANN) who is suing Pure Hemp for using its patented liquid CBD formulations.  

The district court recently ruled on a motion for summary judgment that sought to have the case terminated.  Pure Hemp argued that the CBD covered by UCANN’s patent was invalid. Specifically, Pure Help argued that the liquid CBD formulations covered by UCANN’s patent were naturally occurring and therefore not eligible for patenting.

The district court found otherwise and found that although it was “theoretically possible” for the substances to exist naturally, the 95% CBD concentration claimed by UCANN made the formulations patentable.  The district court’s findings are instructive to those that are seeking to patent and enforce their formulations against competitors.

These findings also fall in line with what is happening at the Patent Office.  Up till now, applications seeking protection for cannabis related formulations have not had much of an issue with being viewed as patent eligible.

Given the CBD boom, it is likely that this is not the last challenge CBD-focused patents will face.  It also shows that the road to protecting cannabis related IP can be found through the Patent Office.  At the same time, this is the first of many cases that are likely to come. Make sure that if you are seeking protection that you are working with a patent attorney that is up to speed in what is likely to be a quickly developing area of patent law that is akin to the pharmaceutical industry.