Not too long ago, William J. McNichol, Jr., Adjunct Professor at Rutgers College Faculty of Legislation, wrote an article concerning the enforcement of cannabis patents that ought to positively be mentioned. As we’ve famous beginning final summer season, we count on to see an rising variety of patent infringement circumstances. We’ve additionally been offering updates on the very first patent infringement case right here and right here.
Professor McNichol predicts that “the [US]PTO’s willingness to grant cannabis patents is unlikely to be matched by a willingness of the Federal Courts to implement cannabis patents.” That is due to a centuries-old precept referred to as the Illegality Doctrine (or, Illegality Rule) – the illegality of the use, possession, and distribution of cannabis merchandise will create an undefeatable barrier to the enforcement of most cannabis patents.
So, what’s the Illegality Doctrine? It may be summed up by Lord Mansfield’s dicta in Holman v. Johnson (a case from 1775!): “No courtroom will lend its help to a person who founds his reason for motion upon an immoral or an unlawful act.” The doctrine relies on the general public coverage that an individual shouldn’t be capable of profit from his/her personal wrongdoing, and the courts shouldn’t implement claims that hurt the integrity of the authorized system. A fair older English choice that’s instructive is the “Highwayman’s Case,” the place two “highwaymen” dedicated a string of robberies and ended up in Court docket as a result of one claimed that he had been cheated out of his share of the monies robbed. The Court docket refused to contemplate the lawsuit solely, turned each males over to the sheriff, and fined their attorneys for carry a go well with “each scandalous and impertinent” (speak about a foul consequence).
The Court docket’s refusal to listen to circumstances based in illegality is effectively established and recognized at the moment and, given the U.S. Supreme Court docket’s holding in Gonzales v. Raich, 545 U.S. 1 (2005) that the distribution and sale of cannabis merchandise stay actionable crimes below federal regulation (even in pro- cannabis states), any plaintiff in a patent infringement motion could be asking a federal courtroom to guard its unlawful enterprise from the illegal competitors posed by one other unlawful enterprise. Professor McNichol concludes:
“The seemingly refusal of the Federal Courts to entertain Hashish patent infringement actions displays a precept typically relevant to the Hashish business and having far reaching penalties which might be past the scope of this paper. The Illegality Rule will seemingly function to shut the Federal Courts to all method of enterprise disputes. A few of these, akin to chapter, are like patent infringement actions in that they are often entertained solely in Federal Court docket. Different enterprise issues, akin to licensing disputes and sophisticated contract disputes involving various events, are sometimes and most conveniently dealt with by Federal Courts. In bringing patent infringement actions, the Hashish business attracts consideration to the Illegality Rule and so hastens its utility, which can function broadly to the Hashish business’s detriment.”
One purpose of many why the UCANN case is one to look at, is to see if the Illegality Doctrine might be raised by the Court docket. Choose Martinez hasn’t raised the difficulty but, and for all intents and functions, has handled the UCANN case as another patent infringement case. If it does come up and units a precedent that cannabis patents is not going to be enforced within the federal courts, Professor McNichol might be proper in that it’ll seemingly not solely impact mental property circumstances, but additionally different business disputes involving cannabis. We’ll proceed to maintain you posted on how the UCANN case develops and whether or not Choose Martinez begins to trace that he’s giving the Illegality Doctrine some actual consideration.