Historically, intellectual property rights for marijuana plant varieties have been restricted essentially to utility and plant patents due to marijuana's classification as a Schedule I controlled substance, which rendered it ineligible for PVP certificates and made registering trademarks on a federal level problematic.
The 2018 Farm Bill marked a pivotal shift in the intellectual property landscape for certain cannabis-related plants. Among other things, the Bill changed certain federal authorities relating to the production and marketing of hemp, defined as "the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis." These changes include removing hemp from the Controlled Substance Act (CSA), which means that cannabis plants and derivatives that contain no more than 0.3 percent THC on a dry weight basis are no longer controlled substances under federal law.
Since that law was enacted, the PVP Office has issued 19 PVP Certificates of Protection for hemp varieties. Those Certificates have, as expected, been limited to low-THC hemp varieties, in line with the Farm Bill's requirements. Higher-THC plant varieties, however, have remained ineligible for PVP Certificate protection. A recent development could change that.
The Department of Justice recently proposed rulemaking to reclassify marijuana from Schedule I to Schedule III of the CSA. If enacted, this reclassification presents a potentially exciting opportunity for breeders and innovators in the cannabis industry because it could broaden the scope of intellectual property protections available for high-THC marijuana varieties to also include PVP Certificates.
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