In the States of Colorado, where marijuana was legalized in February of this year, sales have been incredible, with the business raking in over 20 million dollars in the first 6 months alone and some estimates seeing it grow to over 100 million dollars in the full year of 2014. Clearly business is booming, and could be argued to only grow if more States enact similar laws. In the market right now there are at least dozens of different strains of cannabis, and much like other commercial products with distinct features of their own, could merit protecting to ensure their viability in the marketplace.
Under 35 USC 161: "Whoever invents or discovers and asexually reproduces any distinct and new variety of plant... may obtain a patent [for that plant]". On the face of it, one could easily argue that cannabis plants could be patentable subject matter. This is overshadowed by the fact that marijuana still remains a controlled substance federally under 21 USC 812. It is because of this a federal patent cannot be issued over marijuana plants, effectively making them unpatentable. As the public perception and acceptance of cannabis and its use change, the laws might allow for the patenting of cannabis plants and plant varieties; however this change seems unlikely in the immediate future.
|Alan was confused why the police asked about his bag of oregano|
As one can see, cannabis is, and will be, a hot-button issue in IP for years to come, and it'll be truly interesting to see where the law will go especially when considering the movement to legalize the substances gains more momentum. From a purely pragmatic, business point of view, the law should accommodate the change and allow for such plant variations to be protected. Whether this will happen will remain to be seen, but this writer for one sees it as almost an inevitability.