There are so many inaccurate assumptions and "alternative facts" about canna-IP, its hard to know where to begin. Mainly, canna-innovations are definitely patentable, and have been for many years.
many canna-inventors, including those with a science background, populate their canna-disclosures with data and assertions that will not help them get a patent.
Like in many things, Steve DeAngelo was far ahead of the curve on canna-innovations and canna-protections.
One problem with canna-companies is the difficulty in defining exactly what is true innovation. Further, because of problems with banking, taxation, and cash-management, accurate financial data can be difficult.
How to more effectively detect canna-scams and cons, including stock scams. Hint: the answer is not just patents, don't be misled by the mere existence of patents. Theranos is an excellent example of companies fooling people by having tons of patents, but where absolutely everyone of them was total crap. The canna-industry has plenty of quack companies that upon close inspection look a lot like Theranos.
This book is meant to be used as a reference-guide, with an extensive index and chapter and sub-chapter headings. It is not meant to be read front-to-back, instead as a reference. The Kindle version is 99 cents, and the paperback version is (presently) around $10.35. Use this book prior to consulting any attorney, you will be better-informed and may reduce your legal expenses.
The US Patent Office is part of the Department of Commerce, while the DEA is part of the Justice Department. They have completely different missions and completely different directives. The DEA does not have the ability to declare canna-patents as invalid, or illegal, or unenforceable. Regarding patents, the US Patent Office decides patent eligibility, not the DEA. If you have concerns on this subject, please contact us for a legal analysis.
Unfortunately, the FDA is not yet ready and open-for-business for testing canna-related products. However, does anyone have any trouble believing this day is coming soon?
Be ready! File your patents and trademarks now! Do not wait for the FDA to start doing trials and approvals.
One thing that really turns off investors and customers: highly speculative and unsupported, evidence-free claims about a particular canna-product. Strive for accuracy in your product claims, emphasize the base-science at the core of your invention. Unfortunately, the canna-industry is pretty bad about this, having way too much hype and too many people "blowin' smoke".
Inventors ask a lot of the same questions over and over again, and this applies to canna-inventors same as everyone else.
MYTH 1) Canna-inventions and canna-innovations cannot be patented. This remains true as long as canna-products are a Schedule 1 Felony under Federal Law.
WHY INCORRECT: This statement is truly asinine, truly ridiculous. YET I have heard this so many times, including from reputable "experts" in the canna-industry, further including some major heavy-hitters and canna-publications.
Not only is it asinine, it is also easily disproved. As of January 7, 2019, the following searches were conducted on the US Patent database.
THIS SEARCH OCCURRED ON 01/07/2019
Number of Issued Patents having the word "cannabis" in the specification: 3,339
Number of Pending Patent Applications having the word "cannabis" in the specification: 6,591
Number of Issued Patents having the word "cannabis" in the claims: 294
Number of Pending Patent Applications having the word "cannabis" in the claims: 941
One hard part about the above is trying to explain what is the difference between a patent "specification" and patent "claims". Lets leave this discussion for another time. Suffice to say they are both important.
Next, the patent statutes only require that an embodiment, system, apparatus, or method be legally usable or sellable in at least one US jurisdiction. Thus, the people saying this nonsense may be referring to plant patents, not utility patents, but even then they are still incorrect.
The DEA has no authority over the US patent system. The federal statutes are completely separate, the DEA can not and does not dictate what is patentable and what is not.
MYTH 2) Canna-inventions and canna-innovations have a dearth of Prior Art, due to a constraint on patentability. As such, Allowances will occur more easily, and there will be a "traffic jam" at the US Patent Office.
WHY INCORRECT: while canna-patents may be scarce, canna-information and canna-disclosures are not scarce. Plan on and expect significant resistance from the Patent Examiner.
MYTH 3) You did a search for your canna-invention or canna-innovation, and did not find your specific embodiment. Therefore, you can expect an Issued patent, and want it right away.
WHY INCORRECT: This is another canard that I hear all the time. Do not be misled by doing a patent search. For various reasons, patent searches are not worth much to a patent Examiner. First, the Examiner always does her own search, regardless of any search you may perform (or only think you performed). Second, a utility patent application may not even reach an Examiner for 1.5 years after it is filed.
This is difficult topic that does not lend itself well to brief explanations. Suffice to say, everyone should do a commercialization-search, as its important to see and be aware of what other similar products and services exist. This however is very very different from a patent search. Do not confuse the two!
Thus, do not try the crap-excuse "Mr. Examiner, you should Allow my application, as I did a patent search and there is nothing else like it". I had that said to me many times when I was an Patent Examiner, and perhaps another 200 times as a Patent Attorney. It is an absolute certainty that anyone who says this is a) incorrect, b) does not understand the patent process, and c) does not understand the Examination process. Also, that person certainly does not understand the canna-industry.
WHY INCORRECT PART II: It is true that until recently, canna-innovations have not been subject to patenting. However, do not assume that a patent Examiner will only use other patents in their Prior Art search. This is one of the most common misunderstandings about the patent system, even by some otherwise knowledgeable attorneys. SUMMARY: while canna-patents may be scarce, canna-information and canna-disclosures are not scarce. As such, plan on and expect significant resistance from the Patent Examiner. Yes, from above, it is apparent that the US Patent Office is giving out patents right and left for canna-innovations, but only to inventors who have done their homework.
MYTH 4) You did a search for your canna-invention or canna-innovation, and found something perhaps vaguely similar to your specific embodiment. Therefore, you completely stop your development, halt your business progress, and "give up" on your business or idea for a business.
WHY INCORRECT: This is another canard. I see this around 2 times/month. It is completely fallacious, specious reasoning. The existence of similar patents, or lack thereof, are almost always mis-interpreted by small businesses. Understanding whether an Issued Patent may affect your business requires making some very speculative judgments. A first problem is that the US patent Office may Issue two different patents, to two different entities, for arguably very close, similar subject matter. This problem can occur for millions of reasons, but for brevity I will only list two. The Patent Office makes mistakes, but also, the claims of the two patents may be very different such that they are not contradictory. Most people do not read patent claims, understandably so as these are difficult to understand.
The safe way to increase your chances of getting a patent yourself: strive for a lengthy, detailed disclosure, preferably at least 20 pages of disclosure and at least 15 pages of drawings. If you do this, it may in the end not matter what other patents are out there, if you have your own patents to rely upon as a business asset.
We at FYPA, PLLC have a separate department of patent analytics. We keep a running tally of Issued patents and pending applications that have the word "cannabis" in various places within a patent disclosure. Click below to see examples.
1) strive for depth and detail in your disclosures. Make as many drawings as possible, even if the variations between these drawings may be minor.
2) do a complete brain-dump of every possible embodiment you can think of, even embodiments that are of lesser importance or are less likely to part of the commercialized version of the invention. Adopt a "blue sky", or "wish list" mentality.
3) do the best you can to predict how your embodiments will reach your intended market, and what alterations you should expect. Strive to document exactly how your product works not just now, but 2 years into the future.
4) always discuss not just the apparatus itself, but also a method of manufacture of that apparatus, methods of assembly and shipping, methods of testing and ensuring quality, and methods of use.
5) the single biggest indicator of whether an application will become an Issued Patent or not: depth of disclosure. The depth of your disclosure will eclipse all other factors.
6) do not be misled by doing a patent search. For various reasons, these are not worth what they are purported to be worth. This is difficult topic that does not lend itself well to brief explanations. Suffice to say, everyone should do a commercialization-search, seeing what other similar products and services exist. This however is very very different from a patent search.
7) It is true that until recently, canna-innovations have not been subject to patenting. However, do not assume this makes things easier for you. IOW, do not assume a patent Examiner will only use other patents in their Prior Art search. This is one of the most common misunderstandings about the patent system, even by some attorneys.
SUMMARY: while canna-patents may be scarce, canna-information and canna-disclosures are not scarce. The plant has been around a long time, and has been used by a lot of people, including at least 7 US Presidents, numerous Supreme Court Justices, and numerous police and other law enforcement.
As such, plan on and expect significant resistance from any Patent Examiner. Further, do not try the crap-excuse "Mr. Examiner, you should Allow my application, as I did a patent search and there is nothing else like it". I had that said to me many times when I was an Examiner. It is an absolute certainty that anyone who says this is a) incorrect, b) does not understand the patent process, and c) does not understand the Examination process.
Inventors ask a lot of the same questions over and over again, and this applies to canna-inventors same as everyone else.
Patent disclosures are especially difficult. Even really bright people usually can benefit from some guidance in this area.
Below are exact quotes from Steve DeAngelo, while presenting at CannaBiz Day Orlando on June 6, 2014. This material was posted to YouTube on June 22, 2014. Below, we borrowed about 2 minutes of a much longer presentation. However, you will see that we properly preserved the context.
"Innovate, Innovate, Innovate. And when you innovate something, protect it."
"Start looking now for a good intellectual property attorney. Reach out and form that relationship."
"Educate yourself about trademark and patent law".
"If you don't have a good relationship with an IP attorney, you are going to make other people very rich off of your ideas. So make sure to protect what you create."
"75 years this plant has been illegal. . . . in the course of building your business, you will be forced to innovate."
All original copyrights belong to Steve DeAngelo and the Florida Cannabis Coalition. The microphone squeal (mild) is present in the original recording, and could not be filtered it out.
If you want to hear Steve's voice saying all this, download the files below.
As you can guess, we were pretty excited to hear Steve DeAngelo take this position. However, he is not the only one.
Remember, the canna-industry is not composed of nice people, nor of like-minded people. While you see a lot of hugs and friendliness at various canna-trade shows, this is business not friendship.
Even considering those hugs and nicey-nice, what you do not see are the bankruptcies, the lawsuits, the firings, and the disrupted relationships, prevalent within the canna-industry.
Like Steve says, develop a good understanding of Intellectual Property yourself. This website contains a carefully formatted chapters and dosages of IP information at amounts you can digest.
Plus, we answer e-mails for free, with no expectation of doing business.
As stated, part of what is holding this industry back is a lack of understanding about investing principles. One problem with canna-companies is the difficulty in defining exactly what is true innovation. Using volume of patent filings as a scaling-indicator of true innovation is a mistake.
Further, because of problems with banking, taxation, and cash-management, accurate financial data can be difficult to obtain.
That's why canna-IPOs are for the most part premature, subject to a great deal of suspicion, and a symptom of a problem that truly committed canna-professionals should want to stamp out. The scams and cons make it harder for the rest of us who play by the rules.
This section is going to get a lot larger over time, so let us know if there is a specific subject or company you want us to cover.
Will fill this in later
Canna-companies are all over the news, gathering investors like crazy. However, these investors are in such a rush to "get in early" that they are leaving their common sense and diligence behind. Plus, financial-porn channels like CNBC are hyping the canna-industry to stratospheric levels.
One of the things this site will do over time is provide information on how to more effectively detect canna-scams and cons, including stock scams. Hint: the answer is not just the existence of patents, don't be misled by the mere existence of patents.
There are plenty of ways to "game" the US patent system. Theranos is an excellent example of companies fooling investors by having tons of patents, but where absolutely every one of those patents was total crap. Similarly, the canna-industry has plenty of quack companies that upon close inspection look a lot like Theranos. The problem is, how to separate these quacks from the authentic legitimate canna-companies.
Next, in the same way that volume of patent filings is not necessarily proportional to true innovation, a lack of patent filings is not necessarily proportion to a lack of innovation. Instead, the company may have limited cash-on-hand to fund complex patent filings, and also may not be aware which of their innovations are protectable and which are not.
Our firm belongs to the Association of Certified Fraud Examiners ( we are mere Associate members, not Certified, not CFEs ). One area of Fraud that is neglected, and is difficult to detect, is fraud within the Patent system.
This section will be expanded over time. Let us know if there is a topic or company you would like us to research or discuss.
Will fill in more later.