As the industry continues to evolve, these are some of the creative ways cannabis companies are marching forward.

Last year we looked at a decade’s worth of cannabis-centric patent data to identify and analyze U.S. patent trends in the cannabis industry. Given the increasing number of states legalizing cannabis in some form, coupled with the passage of the Farm Bill in late 2018, it was unsurprising we discovered a record number of cannabis-centric patents issued and patent applications published in 2019.

Fast forward a year, and we find ourselves in the thick of a presidential race and a once-in-a-century global health crisis, events — and the outcomes of which — will likely have profound impacts on the cannabis industry, and thereby cannabis-centric intellectual property.

With that as the backdrop, we examined the patent data for 2020 to see if the numbers of cannabis-centric patents and applications are continuing to rise at a record-breaking pace. We also analyzed a representative sample of recently published cannabis-centric patents and applications to give readers a sense of the inventive subject matter applicants are seeking to protect. Finally, we will discuss how the current political landscape could impact the cannabis industry.

Patent and Application Trends in 2020
The numbers are clear: Even with approximately three months left in the year, 2020 had already seen a record number of cannabis-centric patents and applications issued and published, respectively. There were 190 cannabis-centric patents issued as of September 22, 2020, eclipsing the record 176 that issued in all of 2019. If that rate holds steady until the end of the year, we expect 262 cannabis-centric patents to issue by the year’s end — a 49% increase from 2019.

Regarding cannabis-centric patent applications, 445 were published as of September 22, 2020, eclipsing the record 405 that published in 2019. If that rate holds steady until the end of the year, we would expect 614 cannabis-centric applications to publish by the year’s end — a 52% increase over last year.

What is Being Patented?

The scope and variety of recent cannabis-centric inventions is unquestionably large.

Recently patented inventions in the cannabis realm range from methods of treating epilepsy by administering compositions comprising the cannabinoids CBDV and CBD in certain ratios (U.S. Patent 10,729,665) to methods of preparing purified cannabis extracts enriched in cannabinol (U.S. Patent 10,702,565) to methods of reducing the harmful effects of tobacco by administering tobacco and an isolated cannabinoid such as THC or CBD (U.S. Patent 10,702,565).

Recently published cannabis-centric patent applications offer a preview of what inventions may be patented in the near future, including cannabis beverage spikers (2020/0008606), methods for making coffee products containing cannabis ingredients (2020/0060305) and novel cannabis cultivars, extracts from the same and methods of using the same to treat cancer (2020/0197461).

Impact of the Political Landscape

Two very different candidates are vying for the presidency, each with unique views on the cannabis industry. While President Donald Trump signed the 2018 Farm Bill into law, which (ostensibly) legalized industrial hemp, his administration has taken a number of anti-cannabis measures such as rescinding the Cole Memo, the Obama-era guidelines which essentially advised federal prosecutors to not prosecute state-legal cannabis activity, and employing high-profile staff that staunchly oppose federal cannabis reform. Moreover, Trump has not offered any sign that his administration — should he win a second term — would endorse or pursue cannabis reform at the federal level.

Conversely, the Democratic candidates, former Vice President Joe Biden and Senator Kamala Harris, explicitly endorse federal cannabis reform. Harris recently stated that a Biden-Harris administration would work to decriminalize marijuana use and expunge certain marijuana-related convictions. Prior to winning the Democratic nomination, Biden endorsed rescheduling marijuana from a Schedule I to a Schedule II controlled substance, while Harris has endorsed legalizing marijuana for adult use. At a minimum, cannabis appears more likely to become significantly less illicit (if not entirely legal), more accessible and easier to study if Biden prevails in the November election.

Outside of the executive branch, the Democratic-controlled House of Representatives recently decided to delay a floor vote on the MORE Act until after the election to allow the House to focus on passing a COVID relief package. The MORE Act “would remove marijuana as a Schedule I drug and fund a suite of restorative justice programs for those negatively affected by its criminalization, allowing states to create their own policies without federal interference.” Notably, Harris has introduced the MORE Act’s companion bill in the Senate.

Finally, and regardless who wins the presidency or which party controls Congress, cannabis legalization is on the ballot in several states. Arizona, Montana, New Jersey and South Dakota residents will vote whether to legalize adult-use cannabis, and Mississippi and South Dakota residents will vote whether to legalize medical cannabis. The potential impact on the cannabis industry if one or more of the aforementioned states legalize cannabis — particularly the more populous states Arizona and New Jersey — cannot be understated: It would reinforce that cannabis legalization is increasingly popular with Americans, all but assuring calls for cannabis legalization at the state and federal levels will continue to grow.

In view of the foregoing, we expect that any of the following events, alone or in combination, would boost already historically high numbers of cannabis-centric patents and applications: a) Biden is elected president; b) the House passes the MORE Act; c) Democrats retake the Senate; or d) at least one of Arizona, Montana, New Jersey or South Dakota legalizes cannabis for adult use.

Because at least one of these events appears likely to occur, it seems almost certain that 2021 will smash 2020’s record number of cannabis-centric patents and applications.