Two of the biggest players in the marijuana space are heading to federal court over a dispute related to an alleged violation of a patent for a cannabis extraction method.
Canopy Growth Corporation, a Canadian-based marijuana company, filed a lawsuit on Tuesday against GW Pharmaceuticals, a UK-based firm that produces the Food and Drug Administration-approved cannabis-derived anti-seizure medication Epidiolex.
The legal action came on the same day that the U.S. Patent and Trademark Office issued a new patent to Canopy that gives it broad and exclusive rights to a process of extracting cannabinoids from plant material in the U.S. That issuance is giving Canopy more leverage to pursue litigation and potentially receive damages from GW if the suit plays out in its favor.
Canopy’s original patent—which was issued in 2014 (and initially filed as an international patent application in 2001)—was more narrow and gave companies like GW leeway to adopt their own extraction practices that fall outside the scope of the patent.
That’s not the case anymore, and if the U.S. District Court for the Western District of Texas sides with the plaintiffs, it could have far-reaching implications for the marijuana industry.
Canopy is claiming that GW’s infringement of a patented extraction method “has been and continues to be willful and deliberate.” Because of this infringement, “Canopy has suffered and continues to suffer damages and irreparable harm,” the suit says.
The looming issue for the industry is that, unless GW is able to prove that the patent is invalid, that could mean Canopy would have exclusive rights to an extraction process that is widely used across the market—leaving any company that relies on this method at risk of litigation.
Canopy’s exclusive rights won’t last indefinitely, of course. The newly issued patent that is the basis of its latest iteration is set to expire in a little under a year and a half. But even in that timeframe, Canopy could profit immensely from exclusivity and it could have a chilling effect on competitors in the interim.
“It really could be a major threat to the extraction industry. Once they know about [the patent], companies might be considered to be willfully infringing the patent, which can potentially triple damages if they are sued,” Larry Sandell, a patent attorney and litigator with Mei & Mark LLP, told Marijuana Moment. “Although there are steps that can be taken to reduce infringement liability risks, CO2 extractors may essentially have this anvil hanging over their head as the business continues on—at least until the patent expires or someone succeeds in knocking it out.”
It remains to be seen whether Canopy will pursue litigation against other companies that use the extraction process. GW is one of the biggest players, as the pharmaceutical firm that earned the first U.S. federal approval for a cannabis-derived medication.
“The lawsuit asserts that GW manufactures CBD—the active pharmaceutical ingredient in Epidiolex, GW’s leading cannabinoid product—using Canopy Growth’s patented CO2-based extraction process,” Phil Shaer, chief legal officer at Canopy Growth, told Marijuana Moment. “We have no interest in restricting access to Epidiolex, but the company should be fairly compensated for GW’s use of our intellectual property.“
A spokesperson for GW told Marijuana Moment that the company “is aware of the patent infringement lawsuit filed by Canopy Growth.”
“As a policy, we do not comment on any pending litigation except to say that based on our preliminary review of the complaint, we are confident in our position and will vigorously defend against this lawsuit,” they said.
One possibility would be for Canopy to license out its extraction method to other businesses that produce cannabis products.
But that’s not likely to sit well with others in the burgeoning industry. And it could be the case that GW or other companies will challenge the legitimacy of the very patent in question in court.
On a symbolic level, all of this speaks to the growing pains of a corporatizing industry—a fear expressed by some advocates as the market has expanded. And how it shakes out in this case could, at least in the short-term, be of significant consequence to cannabis businesses throughout the country.
Read Canopy’s new patent and suit against GW over a cannabis extraction process below:
Photo by Kimzy Nanney.
Missouri Regulators Derail Medical Marijuana Business Ownership Disclosure Effort With Veto Threat
Missouri regulators say they feel requiring medical marijuana business license ownership disclosures under a House-approved amendment could be unconstitutional, and they may urge the governor to veto the legislation.
By Jason Hancock, Missouri Independent
An effort by lawmakers to require disclosure of ownership information for businesses granted medical marijuana licenses was derailed on Thursday, when state regulators suggested a possible gubernatorial veto.
On Tuesday, the Missouri House voted to require the Department of Health and Senior Services provide legislative oversight committees with records regarding who owns the businesses licensed to grow, transport and sell medical marijuana.
The provision was added as an amendment to another bill pertaining to nonprofit organizations.
Its sponsor, Rep. Peter Merideth, D-St. Louis, said DHSS’s decision to deem ownership records confidential has caused problems in providing oversight of the program. He pointed to recent analysis by The Independent and The Missourian of the 192 dispensary licenses issued by the state that found several instances where a single entity was connected to more than five dispensary licenses.
The state constitution prohibits the state from issuing more than five dispensary licenses to any entity under substantially common control, ownership or management.
On Thursday, a conference committee met to work out differences in the underlying bill between the House and Senate.
Sen. Eric Burlison, a Republican from Battlefield and the bill’s sponsor, called the medical marijuana amendment an “awesome idea. I think it’s awesome.”
However, he said opposition from the department puts the entire bill in jeopardy.
“The department came to me,” he said, “and said they felt that this was unconstitutional.”
DHSS has justified withholding information from public disclosure by pointing to a portion of the medical marijuana constitutional amendment adopted by voters in 2018 that says the department shall “maintain the confidentiality of reports or other information obtained from an applicant or licensee containing any individualized data, information, or records related to the licensee or its operation… .”
Alex Tuttle, a lobbyist for DHSS, said if the bill were to pass with the medical marijuana amendment still attached, the department may recommend Gov. Mike Parson veto it.
The threat of a veto proved persuasive, as several members of the conference committee expressed apprehension about the idea of the amendment sinking the entire bill.
Merideth said the department’s conclusion is incorrect. And besides, he said, the amendment is narrowly tailored so that the information wouldn’t be made public. It would only be turned over to legislative oversight committees.
Rep. Jered Taylor, R-Republic, chairman of the special committee on government oversight, said the amendment is essential to ensure state regulators “are following the constitution, that they’re doing what they’re supposed to be doing.”
The medical marijuana program has faced intense scrutiny in the two years since it was created by voters.
A House committee spent months looking into widespread reports of irregularities in how license applications were scored and allegations of conflicts of interest within DHSS and a private company hired to score applications.
In November 2019, DHSS received a grand jury subpoena, which was issued by the United States District Court for the Western District. It demanded the agency turn over all records pertaining to four medical marijuana license applications.
The copy of the subpoena that was made public redacted the identity of the four applicants at the request of the FBI. Lyndall Fraker, director of medical marijuana regulation, later said during a deposition that the subpoena wasn’t directed at the department but rather was connected to an FBI investigation center in Independence.
More recently, Parson faced criticism for a fundraiser with medical marijuana business owners for his political action committee, Uniting Missouri.
The group reported raising $45,000 in large donations from the fundraiser. More than half of that money came from a PAC connected to Steve Tilley, a lobbyist with numerous medical marijuana clients who has been under FBI scrutiny for more than a year.
Colorado Sold More Than Half A Billion Dollars In Legal Marijuana In 2021’s First Three Months
More than $10.5 billion in cannabis has been sold in Colorado since it was legalized in 2014. Those sales translate into over $1.7 billion in tax revenue that goes towards public schools, infrastructure projects and local government programs.
By Robert Davis, The Center Square
Colorado’s marijuana sales eclipsed the half-billion dollar mark in the first quarter of 2021, the state Department of Revenue (DOR) said on Tuesday.
In all, marijuana sales were over $560 million between January and March. More than $10.5 billion in marijuana has been sold in Colorado since it was legalized in 2014.
Those sales translate into over $1.7 billion in tax revenue that goes towards public schools, infrastructure projects and local government programs.
DOR compiles its monthly marijuana sales report by adding the state’s medical and recreational sales together. The total does not include marijuana accessories or any products that do not contain medical marijuana.
Marijuana sales reached $207 million in the month of March alone. In exchange, the state collected $39.6 million in taxes.
Marijuana tax revenue is collected through three state taxes: a 2.9 percent sales tax on marijuana sold in stores, a 15 percent tax on retail marijuana and a 15 percent retail marijuana excise tax.
State law requires 71 percent of the total to be remitted to the marijuana tax cash fund, a budget account that is statutorily required to fund health care, health education, substance abuse prevention and treatment programs and law enforcement.
The remaining 29 percent is then subdivided between the state public school fund and the general fund. Schools receive just over 12 percent of the total while the general fund receives greater than 15 percent.
In April, the public school fund received over $14 million. The account supports school construction projects and is controlled by the School Board Investment Fund, a three-member panel responsible for maintaining the fund’s capital that was established in 2016.
Meanwhile, the marijuana tax cash fund received over $16 million and the general fund received $3.5 million.
Missouri Medical Marijuana Business Ownership Info Would Be Disclosed Under House-Approved Amendment
The state isn’t supposed to issue more than five dispensary licenses to any entity under substantially common control, ownership or management—but an analysis found instances where a single entity was connected to more than five licenses.
By Jason Hancock, Missouri Independent
The Missouri House voted Tuesday afternoon to require state regulators to turn over ownership information for businesses granted medical marijuana licenses to legislative oversight committees.
The amendment, which was approved 82-59, was sponsored by Rep. Peter Merideth, D-St. Louis. He said the Department of Health and Senior Service’s decision to deem ownership records confidential has caused problems in providing oversight of the program.
Tuesday’s vote came a day after analysis by The Independent and the Missourian of the 192 dispensary licenses issued by the state found several instances where a single entity was connected to more than five dispensary licenses.
According to the constitution, the state can’t issue more than five dispensary licenses to any entity under substantially common control, ownership or management.
But because DHSS has steadfastly withheld any ownership information about license holders from public disclosure, it’s impossible to determine who owns what.
The situation has bred suspicion, especially in light of more than a year of scrutiny by state lawmakers into widespread reports of irregularities in how license applications were scored and allegations of conflicts of interest within DHSS and a private company hired to score applications.
“We’ve asked the department: ‘Are there any entities that have complex ownership structures so that someone that owns one license actually owns or has a controlling interest in a whole bunch of others?’” Merideth said. “The department said, ‘nope.’ We asked for records to confirm that, and the department said, ‘nope.’”
He has no reason to trust the department, Merideth said, “based on how this program has been managed so far,” adding later that DHSS is in “dire need of accountability and transparency.”
His amendment would not require DHSS to make ownership information publicly available. The department would only be required to turn records over to legislative committees upon request.
Joining him in support of the amendment was Republican Rep. Jered Taylor of Republic, who is chairman of the special committee on government oversight.
“The department should be disclosing this information,” he said, saying he’d actually support going further and making the information publicly available.
Taylor later added: “If we want to do our jobs correctly, we have to have the information.”
DHSS justifies withholding the information from public disclosure by pointing to a portion of the medical marijuana constitutional amendment adopted by voters in 2018 that says the department shall “maintain the confidentiality of reports or other information obtained from an applicant or licensee containing any individualized data, information, or records related to the licensee or its operation… .”
Rep. Shamed Dogan, R-Ballwin, said DHSS is asking lawmakers and the public to trust that they are enforcing limits on license ownership.
“When I as a Republican I hear ‘trust us’ from the government,” he said, “I usually say no. Trust but verify.”
Merideth’s amendment was added to a Senate bill pertaining to nonprofit organizations. The legislation now heads back to the Senate, where it can either vote to send it to the governor or request a conference committee to work out differences with the House.