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.
Psilocybin Technology – Magic Molecules from Magic Mushrooms
Recently psilocybin (the active ingredient in “magic mushrooms”) has received considerable attention. Professor David Nutt and his team at the Imperial College of London recently published an article in Scientific Reports about “Psilocybin for treatment-resistant depression: fMRI-measured brain mechanisms.” The study demonstrated that administering the psilocybin resulted in “pushing [the brains of depressed people] out of their depressive states.” This effect is analogous to electroshock therapy — where a person’s brain is effectively rebooted.
Although psilocybin is currently a schedule I drug, the laws may be changing. Recently, the Huffington Post and many others reported that California may legalize (or decriminalize) psilocybin. In addition to Dr. Nutt’s work in treating depression, the Financial Times reported that Compass Pathways will soon test it for therapeutic value as an antidepressant. Scientists at John’s Hopkins University are also studying the use of psilocybin for treating anxiety and depression.
Is New Psilocybin Technology Patentable?
Psilocybe Cyanescens is one of about 200 species of naturally occurring “magic mushrooms” that contain the molecule psilocybin
About a year ago, we posted an article about Patenting Mushroom Inventions. Our thesis was simple. Many types of mushroom (or fungi) inventions could give rise to patentable subject matter. Such patentable subject matter can be divided into the following categories: Compositions of matter; Methods or Processes; Plants or Living organisms; and Machines or Devices. Of these categories, we explained that composition of matter inventions were almost certainly the most valuable kind of mushroom inventions.
The above articles signify the beginning of a new field — psilocybin technology. Developing a new field often involves rapid innovation and pioneering inventions. In other words, new industries often develop first-in-kind technologies as opposed to optimizing or refining existing technology. We recently saw this sort of innovation in the cannabis space. Below, I have compared the development of the cannabis industry with the impending emergence of the psilocybin industry.
Comparing the Patentability of Psilocybin Inventions with Cannabis Inventions.
The present psilocybin situation shares many similarities with the recent explosion of the cannabis industry. Here’s why:
- Not long ago, cannabis (a naturally occurring plant) was demonized as an extremely dangerous drug with no medicinal or therapeutic value. It was criminalized in about 1970 under the controlled substances act as classified as a Schedule I Controlled Substance.
- Then, people realized that this characterization of cannabis may have been somewhat mistaken.
- Then, the regulations on cannabis became less strict. First, medical cannabis. Then, recreational cannabis.
- Now, we have an enormous recreational and medicinal cannabis industry.
- This young industry is rapidly developing better, safer, and more effective cannabis technologies. For example, the cannabis technology leader ebbu, LLC has created a whole new category of formulated cannabis products with effects unexpectedly different from the plant itself. New, man-made cannabis inventions like those are patentable.
Opportunities for Breakthrough Technologies
The Psilocybin and cannabis fields both share three critical features. First, both are products of nature. Second, those natural products were criminalized by 1970’s laws, based on 1970’s reasoning. Third, that criminal status chilled innovation. As a result of these three facts, many naturally occurring substances (in both “magic mushrooms” and cannabis) were understudied and underdeveloped. Accordingly, the these industries remained stuck in about 1970. Until recently, the state of the art for cannabis was smoking plant matter. The state of the art for psilocybin is almost exclusively eating mushrooms.
The situation for psilocybin technology is slightly different from cannabis. We have the benefit of history. We have been watching the cannabis industry develop. Accordingly, we have a pretty good analogy for how things will play out.
Most likely, the state of the art will evolve beyond eating mushrooms and exclusively focusing on only one molecule. Soon, scientists will recognize that those magic mushrooms have dozens of pharmacologically active magic molecules that can be purposely formulated into safer, more effective, and more reliable products. These advances will arise from human innovation, making them patentable.