Pharmaceutical companies staking out patent territory in advance of cannabis legalization

Major multi-national pharmaceutical companies have begun building Canadian IP portfolios around cannabis as an alternative therapy, anticipating nationwide legalization of the plant in October 2018.

According to a recent joint report from two cannabis-industry analytics firms, pharmaceutical companies are leading the race to stake out territory in the booming cannabis research and development field through patent protection. "Big Pharma" accounts for seven of the top-10 holders of cannabis patents in Canada.

As part of Canada’s pre-legalization “Green Rush” brand-side pharmaceutical companies including Merck, Sanofi-Aventis, and Pfizer have sought patents on medicinal applications of cannabis for a variety of ailments currently treated with “conventional” prescription drugs. It is expected that increasing openness to cannabis as an alternative treatment, driven by legalization, will have a multi-billion-dollar impact on pharmaceutical sales.

In the recreational sphere, while plants including cannabis are not themselves patentable, cannabis cultivators may seek protections under the federal Plant Breeders’ Rights Act. This act allows breeders to obtain exclusive IP rights to a particular strain of a plant, including the rights to import, export, license, and copy the strain.

For companies seeking more extensive IP protection, cannabis-related processes, delivery methods, and secondary products such as cannabis derivatives, edibles, and paraphernalia may be patentable. Like any other patent, cannabis-related inventions within or outside the medicinal field would have to meet the core requirements of the Patent Act – novelty, utility, and inventiveness.

Finally, start-ups operating in the burgeoning cannabis space may choose to seek trademark protection like any other consumer-facing company.

For more information on any of the above information, please contact any member of our IP or Cannabis Groups.

Author: Wes Dutcher-Walls, 2018/2019 Articling Student-at-law