In the far corner of patent law lies an underutilized form of intellectual property protection—plant patents. In fact, in 2018, only a total of 1,079 plant patent applications were filed with the USPTO. Then, in the following year, the first hemp plant patent was issued. Specifically, PP30,639 relates to a new and distinctive hemp cultivar designated as “CW2A.”
So what is a plant patent?
A plant patent protects a single plant. It gives the patent holder the right to exclude others from asexually reproducing, selling, or using the patented plant. Stemming from the Plant Protection Act of 1930, the Act provides patent protection for whoever invents or discovers and reproduces asexually any distinct and new variety of plant. This would undoubtedly include hemp plants. However, you cannot patent a tuber propagated plant, such as potatoes.
What is special about ‘CW2A’?
While plant patents do not need to satisfy the utility requirement (though being pretty would carry some utility), the ‘CW2A’ was primarily developed as a new hemp variety with a high cannabidiolic acid (CBDA) concentration and a low tetrahydrocannabinolic acid (THC) concentration in its mature flowers. Moreover, ‘CW2A’ has a total THC concentration of 0.13 – 0.27%. This is important because it falls under the 0.3% threshold requirement of the 2018 Farm Bill legalizing hemp.
Where does hemp go from here?
With an industry so tied to the specific plants it grows, it is only a matter of time before we see more hemp plant filings like this one. Businesses can gain a competitive advantage if they can secure plant patent rights in their unique hemp cultivar. Overall, a well-rounded and balanced intellectual property portfolio is critical to ensuring dominance in the marketplace.