Patenting Cannabis Beer

Patenting Cannabis Beer

The Wall Street Journal just reported that a Corona brewer has agreed to invest nearly $200 million in a Canadian marijuana grower, with plans to develop cannabis-infused drinks, e.g., cannabis beer.

Constellation Brands Inc. has agreed to take a 9.9% stake in Canopy Growth Corp., a Canadian marijuana company. Constellation Brands plans to work with Canopy growth to make and sell cannabis-infused beverages.

This collaboration caught our attention because of the opportunities for creating new patentable subject matter.

In another article, we wrote about patenting beer and brewing inventions.  In that article, we explained that a new beer can be patented as a “composition of matter.”  Defining the beer as a chemical invention provides numerous opportunities for distinguishing it from the prior art. The critical requirement is explaining how it differs from all other beers.

The cannabis plant comprises about 500 different molecules. Many of those molecules have never been formulated into beers.

Cannabis Beer Inventions

Given that cannabis beer is a relatively new field, the “prior art” is relatively sparse.  There are very few cannabis beers in existence.  Accordingly, there are very few compositions combining the molecules in beer with the molecules in cannabis.  As a result, many varieties of cannabis beer could be defined as new (i.e., different from anything previously made) compositions of matter.

The chemical profiles of cannabis beers could be used to distinguish that class of beers from all previously made beers.  An inventor making that class of beers for the first time could claim the exclusive right to those inventions.

What is the process for patenting a cannabis beer?

First, distinguish the cannabis beer from any previously existing chemical composition.  (Ask – what makes this different?)  Then, use those points of distinction to define the invention.  Then, claim that invention.
After drafting claims, file those as part of a patent application at the United States Patent and Trademark Office (“USPTO”).
During patent prosecution at the USPTO, the application will be evaluated by an examiner.  During that process, the inventor has the opportunity to explain why the claimed cannabis beer is both new and innovative (i.e., nonobvious).  After convincing the examiner of the newness and nonobviousness of the claimed beer, the examiner allows the claims.  Then, the inventor receives a patent on the new beer composition.  That patent provides the inventor with the exclusive right to make, use, or sell the claimed composition.

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