We have received an unusually high number of inquiries from clients and commentators concerning the patent infringement action filed by United Cannabis Corporation (UCANN) against Pure Hemp Collective Inc. late last month. (See United Cannabis Corp. v. Pure Hemp Collective Inc., Case No. 1:18-cv-01922-NYW (D.Colo).) For those not paying attention, the case involves allegations that Pure Hemp’s tinctures, gel capsules, vape pens, and other cannabis products infringe one or more claims of UCANN’s patent for “cannabis extracts and methods of preparing and using same.” (U.S. Patent No. 9,730,911.)
The hype is not unwarranted. The case, filed in federal court in Colorado, has major implications on two fronts: (i) the enforcement of the UCANN patent specifically; and (ii) the overall viability of litigation concerning cannabis-related patents. First, at the industry level, a determination as to the validity and enforceability of what most consider to be a rather broad patent could dictate whether UCANN will be able to successfully enforce this patent against all others utilizing a liquid cannabinoid formulation containing 95% cannabidiol (CBD). From a broader perspective, this is the first infringement suit concerning a patent on a cannabis-related product that, while patented, is used in connection with a substance that remains illegal at the federal level – leaving open a threshold question concerning the ability of the courts to even hear such cases.
Absent a quick settlement, it is difficult to conceive of any outcome, whether it be at the motion to dismiss stage or at trial, that will not send shockwaves through the industry. Who those shockwaves impact most remains to be seen, and we will certainly update this blog as the case proceeds.
As the law continues to evolve on these matters, please note that this article is current as of date and time of publication and may not reflect subsequent developments. The content and interpretation of the issues addressed herein is subject to change. Cole Schotz P.C. disclaims any and all liability with respect to actions taken or not taken based on any or all of the contents of this publication to the fullest extent permitted by law. This is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Do not act or refrain from acting upon the information contained in this publication without obtaining legal, financial and tax advice. For further information, please do not hesitate to reach out to your firm contact or to any of the attorneys listed in this publication.
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