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Bonnie Hassanzadeh is an��IPilogue��Senior Editor, IP Innovation Clinic Fellow,��and a��3L JD Candidate at��Osgoode��Hall Law School.��

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The amongst adults during the pandemic has highlighted the importance of finding and implementing effective and sustainable mental health treatments. The in psychiatry point to an ever-increasing interest in the role that psychedelic compounds, namely psilocybin, can play in treating these conditions. Psilocybin, an active compound in what is commonly known as “magic mushrooms”, is currently listed under of Canada’s . Under this Act, it is illegal to possess, obtain, or produce psilocybin without a prescription or licence.

The legalization of cannabis in 2018 created a booming industry in Canada. In 2020, the sales of cannabis products hit . Sales are expected to grow by 60 percent by the end of 2021. Although the Canadian legalization of psilocybin, similar to cannabis, is an interesting and contentious topic, this article intends to highlight the potential patentability of psilocybin and its derivatives, as well as the current trends in the field.

Patenting Psychedelics: Novelty and Non-Obviousness

Novelty and non-obviousness are two of the main criteria for patentability. In order to obtain patent protection for an invention, such as a chemical compound, the invention must be novel. In determining the novelty of an invention, a patent examiner will look at all previous public disclosures, such as granted patents, patent applications, journals, or oral presentations. As psilocybin was isolated from the Psilocybe mexicana mushroom in 1957 and is a known compound, it lacks novelty. However, all is not lost for psilocybin products as researchers are continuously developing new and improved derivatives of the compound in order to optimize its effects on human biology. Therefore, a derivative of psilocybin that has not been disclosed publicly could qualify as a novel invention

The issue of non-obviousness of an invention, such as a psilocybin derivative, is perhaps more nuanced. Generally, to be patentable, an invention must be a new development (or improvement) that would not have been obvious to a person skilled in the technical field based on all prior knowledge. Therefore, for psilocybin derivatives to be patentable, the newly developed compounds must not be obvious to an ordinary chemist given all the information available about the topic.

Current Trends in Psychedelic Patenting

In reality, it is difficult to assess whether patent protection will readily be granted to each psilocybin derivative. However, it is clear that of the potential for gaining profits by keeping competitors out of the niche market through obtaining patents. Earlier this year, , a biotech start-up based in Washington state, was granted for a novel combination of cannabis and a psilocybin derivative. Those against the current trends in obtaining patents for psychedelic compounds claim that patents would stifle scientific research and competition in the field. They also pose a rather philosophical argument that the trend toward ownership and exclusivity contradicts that many people experience while taking psychedelics. Despite criticisms directed toward companies choosing to protect the compounds they develop, the race to patent psychedelics is only getting started.

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Claire Wortsman is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

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While certain sectors of the entertainment industry, especially those involving live events, were hit hard by COVID-19, podcasting has amidst the pandemic. As lockdown measures increased and walks around the block became the most exciting part of my day, I too hopped on the podcast bandwagon. Here are my top ten IP-related podcast picks (in alphabetical order):��

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The IP law blog, published by and hosted by intellectual property attorneys Scott Hervey and Josh Escovedo, delves into IP issues in the news. I loved this episode on celebrities being sued for posting images of themselves because it does an excellent job of exploring the IP law basis for this phenomenon.

Brand & New is a podcast by the . In this episode, host Audrey Dauvet talks to Harvard Law School’s Rebecca Tushnet about the impact of social and racial justice movements on owners of offensive trademarks. In particular, I enjoyed their conversation about the possibility of minority-owned brands reclaiming and trademarking offensive words or stereotypes.

This podcast series will definitely appeal to a more niche audience. It is hosted by Cesie and Angela, two practicing attorneys and reality television fans. They examine and discuss the lawsuits and legal disputes of reality television personalities. Although I do not follow The Real Housewives, I still found this episode incredibly entertaining and informative.��

For anybody interested in both IP law and the cannabis industry, host Jenn Procacci and patent attorney and plant scientist Dr. Dale Hunt delve into IP protection for cannabis breeders.��

This super fun podcast series, hosted by intellectual property attorneys Michael Snyder and Joseph Gushue, explores elements of intellectual property law referenced in popular movies, television, and songs. My favourite episode is Jurassic Patents, where Volpe Koenig attorney and Ph.D. Douglas Bucklin joins the hosts to discuss the Jurassic Park movies: how realistic they are, how IP law treats DNA, and how close we are to bringing back dinosaurs.

In this episode, Dario de Martino, Joyce Liou, and Paul Goldstein of break down all things non-fungible tokens (NFTs) and IP. Despite its short runtime, this episode touches on many interesting ways IP law can apply to the NFT space and is especially important as the NFT market continues to grow.

Innovation Talks is an IP podcast created by for small and mid-size enterprises. In this episode, Rebecca Dobson and Steve Waine provide interesting advice, stories, and hypotheticals involving the intersection of IP rights and social media.��

Since designed the Progress Pride Flag in 2018, its use appears to be steadily increasing. This past pride month, I saw it everywhere. This episode offers a fascinating glimpse into Quasar’s process of designing the flag and the aftermath of their overnight success. Quasar also discusses their choices regarding exercising control over their IP.

This episode of Intellectual Property Law Podcast Series features attorneys Isi Caulder and Laurence MacPhie. They discuss the role of AI in healthcare, and specifically in the fight against COVID-19. They examine how IP law applies to AI in healthcare and the ways in which it can both hinder and facilitate progress.

tells her moving story of being a small business owner approached by a larger brand hoping to profit off of her IP. This David and Goliath story is a must-listen in my book and features an important intersectional and historical perspective on IP.

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Plant breeders’ rights allow for the protection of new cannabis varieties, which can give licenced producers a 20-year monopoly on their unique strain of cannabis. This is not to be confused with the 20-year monopoly granted by patent protection. While plant breeders’ rights protect the plant itself, plants cannot be patented. The Supreme Court of Canada in held that “higher lifeforms”, which encompasses plants, are not eligible for patent protection. However, the subsequent ruling in held that while a plant itself cannot be patentable subject matter, the genes and modified cells that make up the plant are eligible for patent protection.

Despite the cannabis plant itself not being eligible for patent protection, novel pharmaceutical compositions, such as cannabinoids, therapeutic uses of cannabis, and cannabis-related products, machines, processes and methods, are patentable. Indeed, since the Cannabis Act received Royal Assent in June 2018, related to various methods, processes and apparatuses have been filed.

The difference in the scope of protection between patents and plant breeders’ rights may appear small, but plant breeders’ rights create loopholes which make enforcement more challenging. For example, the Farmers’ Privilege allows farmers to save and replant second generation seeds on their own property rather than purchasing new seeds every year. For cannabis producers, this means that a licensee of a protected cannabis variety could save propagating material in order to replant year after year. This exception can be problematic for cultivators who want to protect their cannabis but may not be eligible for patent protection.

Trademarks are also an important IP strategy. However, the strict packaging and advertising restrictions regarding brands and logos on cannabis products limits the utility of trademarks. Under the , cannabis products may display the brand name and one additional brand element, but the size, colour and location are heavily regulated. The limited visibility and promotion make it difficult for producers to cultivate brand loyalty. Fortunately, the recent introduction of in June 2019 offers a new IP strategy for cannabis producers. Producers will be required to demonstrate that the scent or taste is distinctive of their product. Currently, the includes only two taste marks and one scent mark related to cannabis.

The of the Cannabis Act will include regulatory standards, marketing, promotions and labelling as well as the potential for cannabis health products. Particularly, a relaxation on labelling restrictions and the introduction of cannabis health products would create new opportunities for cannabis producers to expand their IP protection.

Written by Maddie Lynch. Maddie is a second year JD candidate at Osgoode Hall Law School. She is a contributing IPilogue editor, Intellectual Property Journal editor and IP Innovation Clinic Fellow.��

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Canada was the to legalize recreational cannabis. The came into force on October 17, 2018. Its stated purpose is to the health of young persons by restricting their access to cannabis, to protect young persons and others from inducements to use cannabis, and to deter illicit activities concerning cannabis by providing a legal supply of cannabis. While Canada’s since recreational pot was legalized, that the regulations governing the promotion of cannabis do not allow sufficient flexibility for companies to develop their brands in this emerging market due the strict provisions governing the promotion of cannabis.

The prohibitions in can potentially apply to any person or organization engaging in relevant activities, such as the promotion of cannabis, cannabis accessories and services related to cannabis. dictates that it is prohibited to promote cannabis or cannabis accessory or any service related to cannabis by communicating information about cannabis price or distribution; by doing so in a manner that there are reasonable grounds to believe could be appealing to young persons; by means of a testimonial or endorsement; by means of the depiction of a person, character or animal, whether real or fictional; or by presenting it or any of its brand elements in a manner that associates it or the brand element with, or evokes a positive or negative emotion about or image of, a way of life such as one that includes glamour, recreation, excitement, vitality, risk or daring.

The states it “prohibits any promotion, packaging and labelling of cannabis that could be appealing to young persons or encourage its consumption while allowing consumers to have access to information with which they can make informed decisions about the consumption of cannabis.” found that almost one-quarter of those surveyed did not know the cannabis brands they regularly use, demonstrating a lack of brand preference and, subsequently, a lack of awareness of the goodwill cannabis companies have built-in their brands.

Moreover, the may have some intellectual property implications since they may limit the registration of trademarks associated with brands. The companies have their cannabis products and accessories because of the restrictions on “appeal to youth” and “way of life.” For instance, some of the not being able to display animals or characters on the packages or using fluorescent fonts. Moreover, there can be permitted on the display panel. This leads to companies creating products and packages using marks that are , through colours, fonts, texture, scent, sound, and strain names, since they are not allowed to use creative names, slogans, or logos.

The Trademarks Act sets out in sections 2, 12(1)(c) and 12(1)(d) that a trademark is not registrable if it is clearly descriptive or generic. Distinctiveness impacts not only the registrability of a mark but also its once registered. Moreover, the amendments that came into force on June 17, 2019, , which may help with the . However, even if the company obtains the registered trademark, the marks can still be challenged if the owner does not use the mark as per . The strict regulatory framework relating to promotion, packaging and labelling might prevent the companies to “use” their trademarks on cannabis products. Cannabis companies will have to get really creative to come up with non-descriptive yet distinguishing trademarks which they can display on their cannabis products without violating the promotion regulations.

Legal cannabis is still a very novel market and industry, and the partnership between the government authorities and cannabis companies is crucial to the growth of the licit cannabis market, in doing so, eliminating the black market. Therefore, Health Canada should give clear guidance on what they deem to be appealing to minors for cannabis companies to come up with compliant trademarks and promoting their products. In the future, it will be very interesting to see how Canada is setting precedents as the .

Written by Elif Babaoglu, IPilogue Editor. Elif is also the Co-Director of Events of the Osgoode Privacy Law Society.

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HEALTH CANADA ARGUES CROWN COPYRIGHT

Health Canada, the federal agency that oversees Canada’s cannabis industry, argues that Crown holds the copyright in the symbol that Dream Crew Company wishes to trademark. The mark appears to be an exact replica of the , which is required by the to appear on the label of all cannabis products that contain THC in a concentration greater than ten micrograms per gram.

In a , Eric Morrissette, the chief of media relations for Health Canada, states:

The standardized cannabis symbol is protected by Crown copyright and intended to be used for public health and safety purposes only and not for private commercial means […] It can be an infringement of Crown copyright to reproduce the symbol for commercial purposes without permission to do so from the copyright owner.

RESPONSE FROM THE UNITED STATES PATENT AND TRADEMARK OFFICE

On November 21, 2019, the USPTO the registration of the applied-for mark. However, the refusal was not specifically for reasons relating to Health Canada’s Crown copyright, but rather, due to a likelihood of confusion with the US registered mark no. 1954405 for the word mark THC. The notes that both marks are comprised of identical lettering, namely, THC. This section 2(d) refusal applies only to the mark’s use with respect to the goods and services of Class 25. This includes boots, coats, dresses, gloves, hats, hoodies, and other articles of clothing.

The USPTO also noted refusal on the basis that the applicant did not have a bona fide intent to lawfully use the mark in commerce as of the filing date of the application. Additionally, it is argued that the mark is a universal symbol that does not function as a trademark or service mark to indicate the source of the applicant’s goods and to identify and distinguish them from others. These refusals apply to majority of the classes of goods and services that Dream Crew Company listed in its application to the USPTO. The “failure to function as a trademark” refusal relates directly to evidence from other sources, such as CANADA.CA. Given that consumers are accustomed to seeing this symbol used in the manner outlined by the evidence, when it is applied to the applicant’s goods, the that consumers would perceive it merely as “informational matter indicating that the goods are comprised of THC derived from cannabis or marijuana.”

The USPTO further refused the mark due to a lack of lawful use in commerce.[1] The (CSA) prohibits manufacturing, distributing, dispensing, or possessing certain controlled substances, including marijuana. The applied-for mark relates to goods that consist of items that are prohibited by the CSA, and which are intended to include marijuana. 

WHAT’S NEXT?

If Drake and the Dream Crew Company argue to overcome the USPTO’s refusal, a response must be filed with the USPTO within six months of the issue date. Otherwise, the application will be abandoned.

Written by Alessia Monastero, IPilogue editor and articling student at Deeth Williams Wall LLP.

[1] Gray v Daffy Dan’s Bargaintown, 823 F2d 522, 526, 3 USPQ2d 1306, 1308 (Fed Cir 1987).

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Cannabis breeding is a��. It requires patience, sensory acuity, long-term planning, and a working knowledge of genetics. Through their work, breeders can greatly enhance the commercial value of their product. They can create plants that give greater yields, disease resistance, hardiness, and, of course, drug potency, among many other desirable and profitable traits.

Cannabis breeding can also be expensive. To recoup expenses, developers ��rely on profits from their new strains. If there is nothing preventing competitors from selling the developer’s strain, without first paying the developer for the research and development needed to create the strain, then there is very little financial incentive to develop these new breeds. If Canada is to encourage better, more efficient, and more profitable strains of Marijuana, then the government will need intellectual property laws that can protect the investments of time and money that Cannabis breeders put into their work.

��for novel plant breeds themselves, a legal conclusion which stems����In the landmark 2002 Supreme Court patent case of��Harvard College v Canada (Commissioner of Patents), it was decided that “higher lifeforms”, which include plants, could never be subject to a patent protection per the��Patent Act. This ruling was complicated two years later in��Monsanto Canada Inc. v Schmeiser.��Schmeiser’s ruling decided that, while it was true that a plant itself could not be patented, a man-made gene within a plant could be. If a plant contains such a modified gene then, for all practical intents and purposes, the plant itself could be patented because “where a defendant’s commercial or business activity involves a thing of which a patented part is a significant or important component, infringement is established”.

While these rulings may satisfy Monsanto and the other members of the (extremely limited) genetic-insertion community, they are of little recourse to those who breed new plant strains through more traditional means, like cross-breeding. Patent protection would therefore benefit only the most high-end marijuana breeders.

All hope is not lost, however, for marijuana breeders who don’t engage in genetic insertion, thanks to the 1990 Federal��Plant Breeders Rights Act (PBRA). This Act����to plant breeders if they can demonstrate that a strain they have created is “new”, clearly distinguishable from all existing varieties, stable in its essential characteristics, and sufficiently homogenous across plant generations. To date, a handful of marijuana strains have been protected through the��PBRA, and it has the potential to give some relief to breeders.

��of Plant Breeders Rights is that the protections they give are weaker than those protections given by the Canadian patent regime. A patent grants the right to prevent others from using, selling, offering for sale, and importing the patented invention into Canada for a period of 20 years. By comparison, Plant Breeders Rights exclude others from selling, producing, exporting, importing, making repeated use of, conditioning, and stocking the seeds of the plant, also for a period of 20 years. While these collections of rights are superficially similar, Plant Breeders Rights come with some major exceptions not shared by a patent. Anyone can use the seeds and product of a protected plant for private non-commercial purposes, for experimental purposes, and for breeding purposes. At the same time, the “farmer’s privilege” allows for farmers to replant the seeds from plants they have obtained legitimately in perpetuity.

While Plants Breeders Rights are a good start, full patent protection is necessary if Canada wants to fully encourage large-scale development and experimentation in marijuana breeding. Full Patent protection would be an excellent way to encourage the investment of time and money that breeding requires, and would allow for smaller corporations to protect their investments better than the current gene-insertion protections. While it is true that this could result in initial monopolization of certain desirable strains, the benefits of breeding protection would extend to the cannabis-enjoying population after just 20 years. Extending these rights would not be unprecedented, as plant strain patents are available both��, and in the����Canada should take example from the successful plant strain patents found in the international community, instead of letting a potentially valuable incentive for agricultural development go up in smoke.

Keenan Fast is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

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