With more and more US states legalising cannabis, patent filings related to the drug are also on the increase. It is interesting to see how patent strategies develop for this rapidly growing market, which is still illegal at the federal level in the US. As seen in the filing statistics, a lot of the applicants are not the usual players in the food and drink field. This may represent the grassroots growth of newer companies in this area, or that certain established brands do not want to be linked to it just yet.
While I am not a US attorney, from an EPO point of view I thought it was worth considering how an illegal activity can be patented. Article 53(a) EPC rules out European patents being granted for "exploitation of which would be contrary to "ordre public" or morality". This Article further clarifies that "exploitation shall not be deemed to be so contrary merely because it is prohibited by law or regulation in some or all of the Contracting States".Accordingly, it is entirely possible to get a European patent granted for an invention that is illegal in every Contracting State.
This raises the question - why would you want protection for something that is illegal? The cannabis situation is the perfect example - many European countries, including the UK, are having a national conversation about legalising cannabis to some extent. Savvy patent filers could already have protection in place on day 0 of any eventual legalisation, ready to enforce their rights.
A recent report has found that patenting activity for cannabis food and drink has seen a large increase in global activity, in the last five years. 242 simple patent families have been filed in 2015, up from only 144 simple patent families filed in 2012. However, not a single food and beverage company was found to be among the top 10 applicants.