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In this week’s episode of Stuff You Should Know About IP, Thomas Colson and Raymond Guarnieri welcome special guest Kevin Fortin, a patent attorney who has been in the cannabis industry for more than ten years, to discuss intellectual property issues relating to cannabis. Many states have legalized marijuana, but it is still prohibited at the federal level. The United States Patent and Trademark Office can grant a patent for a product that the Food and Drug Administration has not yet approved. Federal trademark protection is only possible in connection with a product that is sold in interstate commerce, or when there is a bona fide intention to sell it in interstate commerce. Though it can be difficult to get a federal trademark for certain cannabis products, it can be possible to obtain common law trademark rights within a state or to register the trademark with a state. Present-day patent law is derived from the mining industry’s concept of a land patent. Cannabis is a botanical term that includes marijuana and hemp, the latter of which is legal at the federal level. Hemp contains less than 0.3% THC; marijuana has more than 0.3% THC, and it can contain up to between 20% and 30% THC in its buds. Hemp can be used to make products such as fabric, rope, graphene, hempcrete, and animal bedding. A plant patent can be obtained for an engineered hemp plant. A utility patent can be obtained for applications of hemp and for hemp processing methods.

In this episode of Stuff You Should Know About IP, Thomas Colson and Raymond Guarnieri discuss a copyright infringement case between Public.Resource.Org (“PRO”) and the state of Georgia that was decided by the Supreme Court of the United States. An unofficial, unannotated version of the Code of Georgia is freely available, but citizens must pay to obtain the Official Code of Georgia Annotated (“OCGA”). Georgia’s Code Revision Commission contracted LexisNexis to annotate its state code with information that can make it easier for citizens to understand the law, such as summaries, references to caselaw, or references to relevant articles. Georgia sued PRO for copyright infringement after PRO’s Carl Malamud published the OCGA, the official version that contained annotations from LexisNexis, on the PRO website; Malamud also copied the OCGA onto a thumb drive, and he sent it to several members of the Georgia legislature. Georgia won in the federal district court, but PRO appealed that decision, and the Eleventh Circuit sided with PRO. The case eventually went before the Supreme Court of the United States, which sided with PRO. Under the Government Edicts Doctrine, when legislators or judges are empowered to speak with the force of law, any works they produce in furtherance of their legislative or judicial duties are not copyrightable, because they cannot be authors in the copyright sense. The Supreme Court was divided 5-4, with the majority composed of Chief Justice Roberts and Justices Sotomayor, Kagan, Gorsuch, and Kavanaugh; meanwhile, Justices Thomas, Alito, Breyer, and Ginsburg dissented. In the Court’s Opinion, Chief Justice Roberts noted the importance of knowing that certain laws that still appear in the Code of Georgia have been declared unconstitutional by courts, and this would only be known from the annotated version.

In this episode of Stuff You Should Know About IP, Thomas Colson and Raymond Guarnieri discuss a patent infringement case between Centripetal Networks, Inc. and Cisco. Centripetal was awarded $1.9 billion, plus royalty payments of 10% for the first three years and 5% for the next three years, potentially bringing the total verdict to somewhere between $2.5 billion and $3.5 billion. This lawsuit involved five patents, and four of them were found to have been literally infringed by Cisco. The litigation spanned three years.