Intellectual property

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Industrial hemp near Biedermannsdorf in Lower Austria (2026). UPOV's test guidelines for new varieties apply to all varieties of Cannabis sativa.

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Intellectual property in plants is the set of legal rights over a plant variety, an invention or a name. The forms that reach Cannabis are plant variety protection, also called plant breeders' rights; patents; trademarks; and appellations of origin. National and regional law grants them. Two treaties set common terms: the Convention of the International Union for the Protection of New Varieties of Plants (UPOV) for varieties and the TRIPS Agreement of the World Trade Organization for patents, trademarks and geographical indications.

Applicants have sought protection for cannabis varieties in the European Union, Australia, Russia, Canada and elsewhere. The United States granted a utility patent on a cannabis hybrid in 2015 and a plant patent on another in 2016. Pierre-Arnaud Chouvy argues that plant variety protection and patents fit bred cultivars and that a landrace, a heterogeneous population handed down through farming, cannot meet their conditions.^: 6 The terms of access to plant material are treated under genetic resources and access and benefit-sharing.

Plant variety protection

The UPOV Convention dates from 1961 and was last revised in 1991. In February 2025 the union had 80 members. The 1991 Act grants a breeder's right to a variety that is new, distinct, uniform and stable. Uniformity means "sufficiently uniform in its relevant characteristics", subject to the variation expected from how the variety is propagated. Stability means that those characteristics "remain unchanged after repeated propagation".^{: arts. 5, 8, 9} The right lasts at least 20 years. During that time the breeder's authorisation is needed to produce, sell, export, import or stock propagating material of the variety or of a variety essentially derived from it.^{: arts. 14, 19} The right does not reach private non-commercial acts, experiments or the breeding of other varieties. A member of the union may also let farmers replant, on their own holdings, the harvest of a protected variety.^{: art. 15}

A breeder is a person who "bred, or discovered and developed" a variety.^{: art. 1} Under UPOV's guidance for lawmakers, a mere find gives no right and nobody is entitled to protection of "an existing variety that was discovered and propagated unchanged by that person".^: 25 TRIPS requires its members to protect plant varieties by patents, by an effective system of their own or by a combination.^{: art. 27.3(b)} India, which is not on UPOV's list of members, passed its own Protection of Plant Varieties and Farmers' Rights Act in 2001.

UPOV's test guidelines for hemp and cannabis apply to all varieties of Cannabis sativa L. They cover cross-pollinated, vegetatively propagated and feminised-seed varieties. The characteristics examined include the THC and CBD content of the inflorescence. A review by Joseph Wyse and Gilad Luria, published in 2021, drew on the worldwide figures of the Community Plant Variety Office. It counted 434 applications for Cannabis sativa, rejected and expired ones included. The European Union had 48 per cent of them, Australia 8, Russia 7 and Canada 5.7. The authors judged that applicants were using a variety's morphological characters to secure protection for what was in practice its therapeutic value.

In the United States the Plant Variety Protection Office began accepting seed-propagated hemp on 24 April 2019. Regulations published on 6 January 2020 added asexually reproduced varieties, hemp among them. By April 2020 the office had received seven hemp applications and approved three. The National Plant Germplasm System held 18 cannabis vouchers from this programme on 6 November 2026.

The Convention treats entry on an official register of varieties as a different act from the grant of a breeder's right.^{: art. 7} Thailand, which is not on UPOV's list either, registered cannabis cultivars under its Plant Varieties Act of 1975.

Patents

The United States has two kinds of patent that can cover a plant. Under the Plant Patent Act of 1930, a plant patent goes to whoever "invents or discovers and asexually reproduces" a distinct and new variety, "other than a tuber propagated plant or a plant found in an uncultivated state". The patent gives the right to exclude others from reproducing the plant asexually and from using, selling or importing the plant so reproduced. Thirty cannabis plant patents and applications had been filed by the time of Wyse and Luria's review, which names US Plant Patent 27,475 of December 2016 as the first. The plant it covers, 'Ecuadorian Sativa', is a hybrid. Its parents are given at second hand: a female "said to be" of a strain from a plant grown in Ecuador and a male "said to have been" of a strain known as 'island sweet skunk'. The patented plant arose by mutation in the inventor's garden at Lake Tahoe, California. It is kept by cuttings.

A utility patent is the general kind. In J.E.M. Ag Supply v. Pioneer Hi-Bred (2001) the Supreme Court held that newly developed plant breeds fall within it and that neither the Plant Patent Act nor the Plant Variety Protection Act narrows it. The Patent and Trademark Office had granted such patents since 1985. TRIPS lets members exclude plants from patents.^{: art. 27.3(b)} US Patent 9,095,554, granted to Biotech Institute LLC in August 2015, claims a hybrid cannabis plant, its clones and parts, defined by a BT/BD genotype, more than 3 per cent CBD, more than about 1 per cent terpene oil, a terpene profile in which myrcene is not dominant and a deposited sample of seed. Across all medical cannabis technologies, patent family filings rose from about 60 in 2013 to 380 by June 2020.

Under US law an invention already patented, described in print, in public use or on sale before the filing date is not new, with exceptions for an inventor's own recent disclosures. John McPartland and Ernest Small wrote that recognising four named cannabis varieties "provides 'prior art,' thwarting claims of originality in Cannabis utility patents". The Open Cannabis Project set out to publish genetic reports on strains for the same purpose. Beth Schechter, its executive director, said in 2018 that the job was to help protect people from "unwarranted cease-and-desist orders for growing the same strain they've been growing for decades".

Trademarks and variety names

Medicinal cannabis flower packed under the name Bedrocan, with its THC and CBD content on the label (2011).

A trademark is a sign that distinguishes the goods or services of one undertaking from those of others.^{: art. 15} A registered variety name works differently. Under the UPOV Convention the denomination is the variety's "generic designation". Rights in that designation may not hamper its free use with the variety, even after the breeder's right ends, and anyone marketing propagating material of a protected variety must use it.^{: art. 20}

In the United States a mark can be registered federally only on the basis of use that is lawful under federal law. Under a guide issued by the Patent and Trademark Office in 2019, the office refuses marks for goods and services that clearly violate federal law, whatever state law allows. Marks for marijuana and for services involving it are refused. Marks for goods from hemp escape that refusal if the application states that the goods hold less than 0.3 per cent THC. Marks for foods and supplements containing CBD are still refused under food and drug law. The same office had granted US Patent 9,095,554 in 2015 and US Plant Patent 27,475 in 2016. The guide predates two changes in federal law. A final rule of April 2026 placed FDA-approved products containing marijuana, and marijuana under state medical licences, in Schedule III of the Controlled Substances Act. A statute of November 2025, effective 365 days later, redefines hemp by total THC.

In 2019 the European Union's General Court upheld the refusal of a figurative mark, CANNABIS STORE AMSTERDAM, for food, drink and catering. The ground was public policy. The decisive test, it held, is how the relevant public perceives the sign, even where that perception is scientifically inaccurate.

"Strain", the trade's usual word for a cultivated type, has no official meaning in botany or horticulture.^: 2 The seller site Leafly listed 2,770 strains in 2019 and 8,133 in 2024.^: 2 A strain name can collide with a mark from another trade. The maker of Skittles sued Terphogz LLC of Mendocino, California, in 2021 over the name Zkittlez. Under a settlement filed in 2023, Terphogz agreed not to use Skittles, Zkittlez or similar terms for cannabis-related sales. Terphogz said its cultivar would stay on sale as "The Original Z".

Geographical names

Main article: Appellation

TRIPS protects geographical indications, which identify a good whose quality, reputation or other characteristic is essentially attributable to its origin.^{: art. 22} Chouvy argues that the stricter appellation of origin is the only such protection suited to landraces, because what needs protecting is tradition and collective ownership, not innovation and individual ownership. His case is the kif landrace and the hashish of Morocco's Rif. He accepts that neither appellations nor plant variety laws can control what third parties do with a landrace and that the illegality of the resin stands in the way for now. He regards the plant as an easier candidate than the resin, since the Single Convention on Narcotic Drugs does not schedule the plant.^{: 1, 6–7}

Landraces and these rights

Cannabis fields in the Rif, Morocco, in 1985. Chouvy's case concerns the landrace and the hashish of this region.

Chouvy's objection to plant variety protection has two parts. A landrace is genetically heterogeneous, so it is not necessarily uniform or regularly stable. It is inherited, so it is not new.^: 6–7 He also holds that a landrace results from exchanges among many communities and so implies shared rights that are hard to establish. In the Rif, different Berber tribes claim the heritage of cannabis cultivation.^: 7–8 Wyse and Luria hold that patents and breeders' rights "work in favor of modern-day research in the developed world and offer little or no protection to the indigenous stakeholders". Commercial breeders, they add, may use traditional farmers as a source of cannabis for hybrids that are then protected.

Some filings mention landrace parents. US Patent 9,095,554 describes classes of varieties "developed by selection from landraces of mixed cannabis genotypes". Several of its parents were raised from seed obtained from a landrace, in some cases "an unknown landrace". In Thailand, Hang Kra Rog Phu Phan ST1 was selected over three generations from seed declared under the amnesty of 2019. The seed was chosen to match what folk doctors in Sakon Nakhon said of the local type, and the share of plants fitting their description rose from 75.0 to 91.67 per cent.^: 2–7

What a farmer may do with seed depends on national law. In the United States a farmer may save seed of a protected variety for use on the farm, and selling that seed for other than reproductive purposes is no infringement. Use of the variety for breeding or research is also free. In India a farmer may save, use, sow, exchange, share or sell farm produce, including seed of a protected variety but not branded seed. The Act also makes farmers' varieties registrable and defines them to include a "wild relative or land race of a variety about which the farmers possess the common knowledge".^{: ss. 2(l), 39} Morocco is bound by the 1991 UPOV Act. Chouvy, quoting Peschard and colleagues, says that trade agreements with the European Union made joining it mandatory for Morocco and that the Act "severely restricts" the country's ability to pass laws protecting peasant seed systems.^: 2 Writing of crops in general in 2010, Regine Andersen held that patents and breeders' rights "prohibit farmers from exchanging seed" and that seed-marketing rules separately shut out traditional varieties.

Other instruments touch the same ground. The International Treaty on Plant Genetic Resources for Food and Agriculture bars recipients of material under its multilateral system from claiming rights that limit access to that material. It leaves Farmers' rights to national governments.^{: arts. 9, 12.3} The WIPO treaty of 2024 asks patent applicants to disclose the origin or source of genetic resources.^{: art. 3} Wyse and Luria call the Nagoya Protocol a "quasi IPR" for custodians of plant material. Chouvy counters that the Protocol is not concerned with plant variety protection and covers genetic resources when they are used in research and development, not plants as such.^: 7–8

What the sources do not establish

Wyse and Luria's counts run to 2020. Their 434 includes rejected and expired applications. A patent grant shows what an office accepted. It does not show that the claims would survive a challenge or have been enforced against any grower. Schechter's statement names no actual order. Chouvy reads the treaties and analyses concepts, with Morocco as his case. None of these sources reports an appellation granted for a cannabis landrace, counts how many protected varieties descend from landraces or measures what any right has done to a landrace population.

See also

• Access and benefit-sharing
• Appellation
• Cultivar
• Farmers' rights
• Gene bank
• Genetic resources
• Hang kra rog
• Landrace Cannabis