Intellectual Property

Stirring The Patent Pot

There's a conspiracy theory out there about the government's intellectual property interest in marijuana. It's not nearly as sinister as people think.

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One of the most prolific posters on our Markman Advisors Twitter feed is @drugpatentwatch. Considering the legal and consulting work we do around the pharmaceutical industry and patents, it is a helpful resource for us. At the same time, there are a few recurring topics that are consistently addressed by retweets on that feed that are at best agenda-driven and at worst crackpot-fodder. One example of the former is the near-constant retweeting of posts about high drug prices that are fueled by dubious patent practices. Representing the latter are the occasional forays into alleged proof of the danger of vaccination or the cancer-curing capabilities of cannabis.

The person(s) running a popular Twitter feed can obviously populate it as they see fit; I am not here to comment on the quality of @drugpatentwatch any more than I already have. But I do credit the feed for introducing me to a very interesting corner of the patent debate, one which involves allegations of government hypocrisy coupled with some interesting insights into public perception of the breadth and depth of patent rights. It is perhaps not surprising that the drug in question is again cannabis, considering the fervor with which a certain segment of the population evangelizes about the purported benefits of the magical herb.

To these true believers, the fact that recreational marijuana use remains criminal in most of this country is unconscionable. Especially because in their view marijuana is a bit of a wonder drug, with true and varied medical benefits, and not just a relatively efficient means of getting high. So when the pot promoters saw media reports of the federal government — the same government seeking to restrict access to their chemical of choice — getting a patent on “marijuana,” their ire was surely stoked to apoplectic levels. Nevermind that the patent is close to expiration and doesn’t cover what they apparently think it does.

The patent in question is US Pat. No. 6,630,507, which has earned notoriety across social media for years and is consistently held up as proof of rank governmental hypocrisy when it comes to cannabis. Just ask Willie Nelson, for example. As the argument goes, it is unfair for the same government that refuses to delist marijuana as a Schedule 1 controlled substance to seek to profit from marijuana by patenting at least one medical use of the compound. Especially when the alleged basis for treating cannabis as a controlled substance is a purported lack of any medical benefit.

What makes this whole dispute interesting from an IP lawyer’s perspective has nothing to do with the focus on pot — for me at least. Instead, this whole issue is illustrative of the challenges IP lawyer’s face in educating members of the public about patent rights, whether they be on a jury or a family member, in this age of relative IP illiteracy. As well as underscoring the need for more public awareness and understanding of IP laws (aka IP literacy,) so that we can have an informed citizenry about a fundamental pillar of today’s economy.

Let’s start with perhaps the most fundamental misunderstanding about the patent in question. Namely, that it covers marijuana itself, or represents the feds trying to patent all uses of marijuana in a medicinal context. Here, the problem is the public’s lack of understanding of Judge Giles Rich’s famous maxim: “the name of the game is the claim.” As any patent lawyer can easily see from even a cursory review of the claims at issue, the ‘507 patent doesn’t even cover the use of the psychoactive component of pot, THC. Rather, it is directed to methods of using non-psychoactive cannabinoids to treat certain neurological conditions. I am not an expert on cannabinoids, but I am pretty sure you don’t need to smoke pot to isolate and use them in pharmaceutical form. Nor do I think that pot proponents would want a THC-less “medicinal” joint of cannabinoids on a Saturday night.

Further, the ‘507 patent is not directed to the general use of marijuana in a medicinal context. Rather, as is typical with medical research, the patent describes potential uses for one of pot’s components to treat a certain class of disorders, arising out of the NIH’s long-running research into cannabis; research that has focused both on the potential abuse and damage caused by marijuana as well as its potential benefits. As such, the ‘507 patent is not indicative of a governmental attempt to “corner the market” pre-countrywide legalization of recreational marijuana. At the same time, there is nothing unusual about the NIH’s licensing of the ‘507 patent for further development by private industry, as perhaps one day an approvable medicine can arise out of further research into the specific cannabinoids discussed in the patent. That would be a great result, supposed governmental hypocrisy be damned.

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Ultimately, understanding IP law makes plain that the issues around the notorious ‘507 patent are more nuanced than they may appear on social media. While the pro-pot crowd is entitled to use whatever persuasive tools they can to further their agenda — including pointing out what they feel is government hypocrisy around their beloved herb — it is always best when arguments are grounded in a clear understanding of the subject matter (here, patents) at hand. Where appropriate, IP lawyers can and should add their knowledge to public debates where IP issues are of import to the broader conversation. Pot and patents are definitely an example where IP lawyer input could make things clearer. And IP lawyers should keep in mind that there is a potential patent gold rush in terms of future filings around different strains of, and uses for, marijuana. Especially if Willie and his friends get their way sooner rather than later.

Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.

Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.

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