Will It Go Forward? First Cannabis Patent Infringement Case Filed in Federal Court

8/9/2018 Articles

A patent infringement case pending in front of the U.S. District Court for the District of Colorado has the potential to set an important precedent that will have ramifications for many of our clients in this space.  In United Cannabis Corporation v. Pure Hemp Collective, Inc., United Cannabis alleges that Pure Hemp has infringed its patent related to a liquid formulation of plant cannabinoid extracts.   

This is a fascinating case that brings an issued cannabis patent into federal court in the context of a dispute over activity that is legal under state law but illegal, and politically sensitive, under federal law.  It is unclear whether the court will allow a cannabis patent infringement case to go forward, particularly where it seeks money damages for the accused infringer’s sale of cannabis.  As the Court of Appeals for the Federal Circuit has noted, “the principle that inventions are invalid if they are principally designed to serve immoral or illegal purposes has not been applied broadly in recent years.”  Juicy Whip, Inc. v. Orange Bang, Inc., 185 F. 3d 1364, 1366-67 (Fed. Cir. 1999).

If the case does go forward, the plaintiff will likely need to produce potentially incriminating evidence directly under the supervision of the federal court, including evidence of its own cannabis operations and sales to substantiate its case. 

If the court dismisses the case or otherwise balks at enforcing a cannabis patent, the case could be ripe for a politically charged appeal.  The plaintiff could claim that its federally-granted property right was vitiated without due process. 

We are watching the developments of this case carefully. The result could provide guidance to entrepreneurs considering applying for patents on cannabis-related inventions, or enforcing such patents in court.