united-states copyright patents medical-marijuana
Can the U.S. government sue medical marijuana dispensaries for copyright infringement?
<p><a href="http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&amp;Sect2=HITOFF&amp;d=PALL&amp;p=1&amp;u=%2Fnetahtml%2FPTO%2Fsrchnum.htm&amp;r=1&amp;f=G&amp;l=50&amp;s1=6630507.PN.&amp;OS=PN/6630507&amp;RS=PN/6630507" rel="nofollow noreferrer">US Patent 6630507</a>, which was assigned by The United States of America as represented by the Department of Health and Human Services, is loaded with the many medicinal values of cannabinoids, including Tetrahyrocannabinol. According to the patent:</p>

<blockquote>
  <p>Cannabinoids have been found to have antioxidant properties, unrelated to NMDA receptor antagonism. This new found property makes cannabinoids useful in the treatment and prophylaxis of wide variety of oxidation associated diseases, such as ischemic, age-related, inflammatory and autoimmune diseases. The cannabinoids are found to have particular application as neuroprotectants, for example in limiting neurological damage following ischemic insults, such as stroke and trauma, or in the treatment of neurodegenerative diseases, such as Alzheimer's disease, Parkinson's disease and HIV dementia. Nonpsychoactive cannabinoids, such as cannabidoil, are particularly advantageous to use because they avoid toxicity that is encountered with psychoactive cannabinoids at high doses useful in the method of the present invention. A particular disclosed class of cannabinoids useful as neuroprotective antioxidants is formula (I) wherein the R group is independently selected from the group consisting of H, CH.sub.3, and COCH.sub.3. ##STR1##</p>
</blockquote>

<p>Many companies use the various cannabinoids, specifically THC and Cannabidiol, to earn a profit.</p>

<p>Can the U.S. government sue medical marijuana dispensaries, or any company that uses Cannabinoids, for copyright infringement?</p>

<p>First, a preliminary correction. Patents are different than copyright. <a href="https://www.law.cornell.edu/uscode/text/35/271" rel="nofollow noreferrer">35 USC §271</a> defines <em>patent</em> infringement:</p>

<blockquote>
  <p>Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent.</p>
</blockquote>

<h2>Can patent holders sue patent infringers?</h2>

<p>Yes. See <a href="https://www.law.cornell.edu/uscode/text/35/281" rel="nofollow noreferrer">35 USC §281</a>:</p>

<blockquote>
  <p>A patentee shall have remedy by civil action for infringement of his patent.</p>
</blockquote>

<h2>Does the US Government own US Patent 6630507?</h2>

<p>Yes. The assignee is "The United States of America as represented by the Department of Health and Human Services".</p>

<h2>What does this patent claim?</h2>

<p>"Claims" are the things that the patent protects for exclusive use (or making or selling of) by the patent owner.</p>

<p>Quoting from <a href="http://digitalcommons.law.uga.edu/cgi/viewcontent.cgi?article=1254&amp;context=jipl" rel="nofollow noreferrer">Joseph D. Summer, Patenting Marijuana Strains: Baking Up Patent Protection for Growers in the Legal Fog of this Budding Industry</a>:</p>

<blockquote>
  <p>[US Patent 6630507] patents a method of use of a non-psychoactive cannabinoid compound for treating some diseases. The
  patent does not claim a composition of matter or a compound, but rather a
  method for using specific cannabinoids for treating oxidative stress.</p>
</blockquote>

<h2>Are dispensaries infringing?</h2>

<p>Not for direct infringement (but see the next section). They are not selling the method of treatment. The closest a dispensary comes is selling the raw material that may be used in such a treatment.</p>

<h2>Who <em>would</em> be liable?</h2>

<p>Doctors or hospitals prescribing or administering the claimed treatment? No. <a href="https://www.law.cornell.edu/uscode/text/35/287" rel="nofollow noreferrer">35 U.S. Code § 287(c)</a> says:</p>

<blockquote>
  <p>With respect to a medical practitioner’s performance of a medical activity that constitutes an infringement under section 271(a) or (b), the provisions of sections 281, 283, 284, and 285 shall not apply against the medical practitioner or against a related health care entity with respect to such medical activity.</p>
</blockquote>

<p>This says that even if a medical practitioner infringes a patented medical method when they use that method, they cannot be punished. But, direct infringement did happen, and thus, providers of the materials necessary for that direct infringement may have committed contributory infringement <a href="https://www.law.cornell.edu/uscode/text/35/271" rel="nofollow noreferrer">35 USC §271(c)</a>.</p>

<p>This is where a dispensary may be liable. If they provide the products or compounds that the claimed method requires, to somebody who directly infringes (even if that direct infringer happens to be shielded from liability), the dispensary may be liable for <em>contributory infringement</em>. This would depend on whether the particular compound is "a staple article or commodity of commerce suitable for substantial noninfringing use".</p>
