09/09/19

THE NEW HIGHWAYMAN: ENFORCEMENT OF U.S. PATENTS ON CANNABIS PRODUCTS


THE NEW HIGHWAYMAN: ENFORCEMENT OF U.S. PATENTS ON CANNABIS PRODUCTS

William J. McNichol, Jr.

Patents play an important role in American business. Their stated purpose is to incentivize innovation and there is a large body of scholarship concerning how they perform this function. Scholars have noted the patent system’s “natural connection to innovation.” Patents long played an important role in in the related function of capital formation. This is no less true in the industries now emerging around sales of Cannabis products.5 However, under a long line of authorities going back to The Highwayman’s Case in 1725, the illegality of the use, possession, and distribution of these products probably creates an insurmountable barrier to the enforcement of most patents that claim Cannabis products or their use. This means that, with respect to the Cannabis industry, the U.S. patent system is unlikely to play its customary roles of incentivizing innovation and encouraging investment. 

101 J. Pat. & Trademark Off. Soc’y 24 (2019)

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