In July of last year, United Cannabis Corporation (“UCANN”) filed the first cannabis patent infringement lawsuit in the United States, against Pure Hemp Collective Inc. (“Pure Hemp”). It alleges that Pure Hemp infringed U.S. Patent No. 9,730,911 (“the ‘911 Patent”), which is entitled “Cannabis Extracts and Methods of Preparing and Using Same.” Each asserted independent claim of the ‘911 patent is for a “liquid cannabinoid formulation, wherein at least 95% of the total cannabinoids” is some combination of one or more specified cannabinoids. See Claims 10, 20, 25. Pure Hemp filed a motion for partial summary judgment arguing that the claims are invalid because they are directed to unpatentable natural phenomena.
In an April 17, 2019 Order, the court denied the motion for partial summary judgment and concluded that the challenged claims of the ‘911 patent are not directed to unpatentable subject matter. The court found that Pure Hemp failed to establish beyond genuine dispute that a liquefied version of cannabinoids and related chemicals at the concentrations specified in the patent constituted a natural phenomenon. The claims specified threshold concentrations of cannabinoids and related chemicals. Pure Hemp did not show that these precise concentrations, or anything close to them, occurred in liquid form in nature. Accordingly, UCANN’s claims were not restatements of the “handiwork of nature, but UCANN’s own handiwork.”
UCANN’s celebrations, however, may be short lived in view of the court’s comment on other bases of patentability of the ‘911 patent: “To be clear, the Court sees reason to question whether the ‘911 Patent claims anything novel, useful, or nonobvious.” This seems to be clear guidance to Pure Hemp on where to direct its next unpatentability arguments.