This post was originally published on Seyfarth’s International Dispute Resolution Blog.

On 16 November 2022, EU Regulation 2022/2065, better known as the Digital Services Act (“DSA”), came into force. The DSA is a key development in the use of online services in the European Union (“EU”), with an impact on online services as significant as the one which the General Data Protection Regulation (“GDPR”) had upon the collection, use, transfer, and storage of data originating in the EU on 25 May 2018.

Ambit

The DSA sets out rules and obligations for digital services providers that act as intermediaries in their role of connecting consumers with goods, services, and content.

Its goal is to regulate and control the dissemination of illegal or harmful content online, provide more consumer protection in online marketplaces, and to introduce safeguards for internet users and users of digital services. It also introduces new obligations for major online platforms and search engines to prevent such platforms being abused.

The DSA applies to a wide range of providers of:

(a) Intermediary services offering network infrastructure such as internet access providers, domain name registrars, and other providers of what is described as ‘mere conduit’ or ‘caching’ services;

(b) Hosting services such as cloud and webhosting services;

(c) Online platforms bringing together sellers and consumers such as online marketplaces, app stores, collaborative economy platforms and social media platforms; and

(d) Very large online platforms and very large online search engines that are used to disseminate content and information.

The DSA applies in the EU, and to those providers outside the EU that offer their services in the EU. If a provider is not established in the EU, they will have to appoint a legal representative within the EU.

The DSA splits providers into tiers. The most heavily regulated tier covers Very Large Online Platforms (“VLOP”s) and Very Large Online Search Engines (“VLSE”s). The main criteria that will bring a provider under the scope of the DSA as a VLOP or VLSE is whether it operates a platform servicing more than 45 million monthly active end users located in the EU.

Continue Reading The EU Digital Services Act

Trademark applicants encounter refusals from the United States Patent and Trademark Office (“USPTO”) based on a myriad of issues. Section 2(d) likelihood of confusion refusals and Section 2(e)(1) mere descriptiveness refusals or disclaimer requirements based on descriptiveness are often issued by the USPTO.

These refusals have applicants scratching their heads to determine whether to pursue an appeal to the Trademark Trial and Appeal Board (the “Board”). If only there was some insight into how the Board may decide a case. 

The one and only TTABlogger, to whom the author and many others are indebted, reviewed and analyzed the decisions concerning Section 2(d) and Section 2(e)(1) refusals that the Board issued in 2022. The Board issued 200 decisions regarding Section 2(d) refusals and 51 decisions regarding Section 2(e)(1) refusals. The Board reversed 15 of the Section 2(d) refusals and six of the Section 2(e)(1) refusals, which provides an affirmance rate of 92.5% and 88.2% respectively.  

The Board consistently reminds us, for better or for worse, that each case must be decided on its own merits. But for those trying to read the tea leaves, it’s hard to discount the seemingly uphill battle of an appeal. It’s also important to consider the potential effects of a final decision issued by the Board. A negative decision could significantly impact an owner’s availability to obtain registered rights or potential enforcement efforts.  In some instances, claim preclusion, a.k.a. res judicata, may apply when an applicant attempts to refile for its same mark. Further, a final decision could be used as ammunition to undercut an owner’s alleged rights in a mark or a claim of likelihood of confusion. Therefore, the Board’s affirmance rates, along with the pertinent facts of each case, should strongly be considered when deciding to file an appeal.

A new federal law requires increased transparency in online sales transactions with the aim of protecting consumers against fraudsters and counterfeiters that historically have been able to hide anonymously behind unverified seller profiles.

The Integrity, Notification, and Fairness in Online Retail Marketplaces (“INFORM”) Consumers Act, signed into law by President Biden on December 29, 2022 as part of the Consolidated Appropriations Act of 2023, puts the onus on sales platforms to collect documentation from high-volume sellers. Specifically, the Act requires platforms to verify bank account numbers, business tax identification numbers, and contact information for sellers making 200 or more discrete transactions totaling at least $5,000 during a continuous 12-month period. Platforms must remind sellers to update this information on an annual basis. If the seller does not provide the requested information within 10 days, the platform must suspend sales activity by the seller until the information is received.

The Act also requires disclosure directly to consumers. After a consumer completes a purchase from a seller with at least $20,000 in annual gross revenues, that consumer is entitled to basic identification and contact information for the seller. If the seller is not responsive to the consumer, or makes false or partial disclosures to the platform, the platform can suspend all future sales activity by the seller.

Consumers are further empowered to report “suspicious marketplace activity” through the “clear and conspicuous” reporting mechanisms that platforms must now provide on high-volume seller profiles.

While the Act creates additional burdens on e-commerce sites, it does not go so far as to establish contributory liability under the federal Lanham Act for sites selling counterfeit merchandise. Such a measure was proposed in the companion to the INFORM Consumers Act known as the SHOP SAFE Act, but that measure was excluded from the final omnibus legislation.

Even so, the INFORM Consumers Act is a promising new tool to combat counterfeiting and infringement by anonymous parties, which has increased drastically since the COVID-19 pandemic forced a majority of commercial activity online. Both individual consumers and brand owners have faced obstacles due to the lack of accountability by sellers hiding behind legitimate online storefronts to peddle infringing, counterfeit, and even stolen goods.

The ability to obtain contact information for questionable sellers—and block those who will not provide current contact information from selling altogether—should reduce the chances that consumers will unwittingly purchase a counterfeit product. It should also allow brand owners better access to infringers and counterfeiters so that they can take legal action as required to protect their rights, though it remains to be seen how potential conflicts with the EU’s General Data Protection Regulation (“GDPR”) will be resolved.

As it stands, the Federal Trade Commission (“FTC”) is tasked with enforcing the new law, which goes into effect on June 27, 2023. State attorneys general are also empowered to bring civil actions against online marketplaces where noncompliance affects state residents.

Between now and June, the FTC is likely to engage in rulemaking to better define data reporting, collection, verification, and disclosure requirements under the Act. While state laws that conflict with the INFORM Consumers Act are expressly preempted, we may also see complementary laws enacted and enforced in various jurisdictions across the country. Meanwhile, we are likely to see major online sales platforms begin putting new policies, procedures, and controls in place to ensure compliance with the new law.

Ransomware attacks have become one of the most common and pervasive cybercrimes perpetrated against U.S. companies. A bad actor, often from overseas, will gain access to upload malware onto a company’s network storage or application platforms that encrypts all files it can access. A message or text file is usually left with instructions on how to contact the attacker to pay a ransom for the decryption key. In the worst case, a ransomware attack can freeze the business operations by effectively removing access to the company’s critical systems and rendering them useless. Aside from the business impact, what legal implications are created by a ransomware attack?

Privacy

The greatest legal concern is one of privacy. By definition, ransomware attacks gain access to the internal systems maintained or owned by a business. However, not all ransomware attacks are created equal and privacy obligations differ from one attack to another.

The most harmless ransomware attack is one that encrypts data on an identifiable location that is confirmed to not contain any personal information for employees or customers, and which can be easily restored from clean backups. Assuming information that meets the definition of personal data (including PII or PHI) is affected, then further legal analysis is required in order to determine whether or not the business has further legal responsibilities. In that evaluation, the availability of reliable system logs, network traffic and other information becomes critical. For example, some state data breach notification laws do not require notification to potentially affected individuals unless information was obtained by the unauthorized attacker. In other words, unless data was copied or exfiltrated by the attacker, there is not a breach. However, other states define a data breach as the unauthorized acquisition or access to certain categories of protected information. In states that include “access” in their definition of a breach, a ransomware attacker who is able to remotely browse through a network environment and select the target systems of files for an attack has obtained access. If the malware operates independently and there was no external access outside the execution of the computer code, it is arguable that there has been no unauthorized access by a person. It can be difficult to gain concrete information as to whether the attack resulted in the loss of data—but mere encryption, without more, is a arguably a “better case scenario” compared to one involving the loss or removal of information.

Hackers have caught on to this. In some cases, a ransomware assailant will provide proof that they have accessed personal information and can publish it on the dark web. These “proof of life” attacks provide a snippet of the personal information—for example, one of many social security numbers stored on the now-encrypted database—and hackers will threaten to publish all of the personal information if their demands are not met. Unfortunately, even though ransomware attackers when paid almost always live up to their end of the bargain by providing decryption keys and deleting exfiltrated data, the fact that information has been obtained by unauthorized individuals is unquestionably a breach, even if the attackers agree to delete it. This means, if personal information is involved, an attack that includes exfiltration is most likely going to trigger a reporting obligation.

Congress has introduced several bills that would require the reporting of a ransomware attack to the Department of Homeland Security within a certain time frame, usually 24-72 hours, with certain mandatory reporting obligations for certain industries already in place. It is unclear, however, what obligations will be incurred by the attacked party or whether the exfiltration of personal information will modify those obligations.

Intellectual Property

Many companies maintain their “secret sauce” as a trade secret. Whether a company develops software, manufactures adhesive, or trades on Wall Street, trade secret protection is paramount for the intangible assets of a company that are not patented. A ransomware attack can result in the exfiltration of the trade secret and possible publication of the trade secret—an act that would eliminate any protection for the trade secret at hand. And victims of such attacks are surprised to learn that their cyber insurance often does not cover such loss. Indeed, important trade secrets should be kept under proverbial lock and key to protect against exploitation or publication by ransomware attackers.


Ransomware attacks take many forms. Many involve the exfiltration or unauthorized access to employee or customer personal information or trade secrets, which can lead to catastrophic loss for a company with a large privacy or trade secret footprint. In addition to practicing good network and data security, employee training, and record retention to minimize the impact of attacks, it is imperative (and in some states required) that businesses have a written information security response program for the management and remediation of cyberattacks. In the investigation and response to an incident, it is important to determine what type of ransomware attack has occurred so that a company can determine the resulting privacy notification and intellectual property loss associated with the attack.

We strongly recommend consultation with capable outside legal counsel and experienced computer forensic experts in the response, remediation and investigation of a ransomware incident. The reasonableness of a business’ safeguards, the adequacy of its investigation, and the speed of its remediation response could all be subject to scrutiny in the event of litigation or a regulatory investigation. A proper team of internal stakeholders, counsel and forensic investigators should collaborate in addressing the investigation, documentation, remediation, insurance, customer and governmental notifications, law enforcement and public relations questions in swift – and where necessary, legally privileged discussions. Companies can also mitigate their risk by securing personal information or trade secrets behind updated network controls; employing encryption; conducting regular training and anti-phishing exercises; and deploying more secure multi-factor identification for workers and external users.

Seyfarth attorneys Joshua Salinas and Michael Wexler and digital forensic technologist James Vaughn (iDiscovery Solutions) presented a webinar on December 19, 2022, entitled, “Trade Secret Protection: Through the pandemic and beyond.” The experienced panel discussed the latest developments and trends in trade secret protection as businesses look to reestablish themselves in a post-pandemic world, including:

  • Workplace hot topics, such as the Great Resignation, Quiet Quitting, and the new Work From Home and Hybrid-Work world
  • Heightened risks and best practices for trade secret protection with a more remote workforce and digital expansion
  • Forensic preservation, collection, and presentation considerations
  • Predictions about the potential benefits and risks regarding trade secret protection with emerging technologies, such as artificial intelligence (“AI”), the metaverse, and Web3

The webinar was co-sponsored by the Federal Bar Association and myLawCLE.

If you or your organization is interested in learning more about these topics, please feel free to contact our panelists: Joshua Salinas, Michael Wexler, and James Vaughn.

With Christmas being a few days away, those that celebrate have likely had their tree prepared for a few weeks. Some people are Team Fake Tree, while others are ardent supporters of Team Real Tree. Unfortunately, this matchup is not as exciting as last weekend’s World Cup final. According to the National Christmas Tree Association there are approximately 25-30 million real Christmas trees sold in the U.S. every year. Real trees have various advantages over fake trees. For example, some argue that real trees smell and look better. However, real trees can be messy and can be difficult to set up. In addition, real trees may be a fire hazard. A 2022 study by the National Fire Protection Association (NFPA) indicates that from 2016 to 2020, a U.S. fire department responded to an estimated average of 160 home structure fires, per year, that began with the ignition of a Christmas tree. These fires cause an annual average of two civilian deaths, eleven civilian injuries, and $12 million in property damage. Fortunately, Santa Claus, his elves, and his reindeer have not been injured in any of these fires. Notwithstanding, there is a need to prevent Christmas tree fires.

As necessity is the mother of invention, the need to prevent Christmas tree fires has led to numerous patent applications in this area. For example, U.S. Patent Application No. 11/799,902 is directed to a fire prevention and extinguishing system that includes a portable case, a hose, and a heat sensor.

As shown in the image, a portion of the hose is positioned with the tree, and an end of the hose is coupled to a fire extinguisher within the portable case. Upon determining a temperature has exceeded a threshold, the heat sensor actuates the fire extinguisher so that the fire extinguishing contents are discharged via the portion of the hose within the tree. As noted in the ‘902 application, “within seconds the tree fire is automatically extinguished and the occupants are warned of the fire, both audibly and visually, thereby saving lives and/or minimizing property damage.”

As another example, U.S. Patent Application No. 11/894,707 is directed to a fire extinguishing system.

As shown in the images, the ‘707 application includes a tree topper and a smoke and/or flame detection device attached to the tree topper. The system also includes an electronic and/or mechanical triggering/actuation device attached to the tree topper. Additionally, the system includes an extension tube for the transfer of fire suppression material, a reservoir such as a handheld fire extinguisher for extinguishing material, including an apparatus for interfacing with the reservoir, and an electrical support system and backup.

Unfortunately, the inventors of the ‘902 and ‘707 applications had to deal with the Grinch known as prior art. Neither application was distinguishable over the cited prior art, leaving each inventor with a modern day lump of coal – an abandoned patent application. The similarities between the applications are not limited to the nature of the inventions and the failure to receive a notice of allowance. Both applications share the distinction of using the term “and/or” in their specifications. Non-US practitioners, particularly European practitioners, were fond of the “and/or” language in the claims, and specification, for numerous reasons.

Like Hans Gruber trying to wreak havoc in Die Hard (yes, it’s a Christmas movie), USPTO examiners spoiled all the fun by rejecting claims as being indefinite based on their use of “and/or.” These rejections were head scratchers because the meaning of the term is pretty simple, “A and/or B,” means “only A, only B, or A and B.” Due to these rejections, the use of the term “and/or,” in the claims and specification, was on the naughty list. U.S. practitioners used various substitutes, such as “one or more of A or B,” “at least one of A and B,” “A, B, or any combination therefore,” or any combination of the aforementioned terms.

Fortunately, in 2014, nine days after Christmas, the PTAB gave us all a belated gift in the ex parte Gross (PTAB 2014) decision. The Board’s seismic decision can be summarized in one sentence: “We agree with Appellant that ‘and/or’ covers embodiments having element A alone, element B alone, or elements A and B taken together.” The Board did note that the “preferred verbiage” should be more simply “at least one of A and B.”

In some cases, the use of “at least one of A and B” has been interpreted as “at least one of A and at least one of B.” See ex parte Jung. Given this interpretation, we often recommend keeping it simple by using “A and/or B.” If you come across an examiner and/or a practitioner that disfavors the use of “and/or,” remind them it’s on the PTAB nice list, as well as being accepted in foreign jurisdictions.

Co-authored by Ruth Fisher, PhD

The following post explores the bioavailability and efficacy of various cannabis products, followed by a brief overview of the legal protection afforded to each as an intellectual property asset.

Over the millennia, our bodies have evolved to better protect themselves. Protection from outside our bodies comes from our skin, which creates a barrier that’s quite difficult to penetrate by most foreign substances (pathogens). Protection from within our bodies comes from barriers (epithelial tissues) that line all our internal organs and pathways, to make sure nothing penetrates areas it should not. The result of all this protection is that it can be difficult for cannabis substances to penetrate our bodies and travel to the sites needed to generate their effects.

FLOWER

The most common way people consume cannabis is by smoking the buds of the cannabis sativa plant, often referred to as “flower.” When flower is combusted, about three-quarters of the cannabinoids and other active ingredients are lost to incineration and side smoke. Cannabinoids that do make it into the lungs are quickly and easily absorbed and delivered directly to the bloodstream, where they make their way to receptors throughout the body. This direct form of delivery has the benefit of rapid onset, but at the cost of low bioavailability; that is, low rate of absorption.

How can flower be protected as IP? The individual strain of flower can be protected as a plant patent, but this form of protection is rarely used and can be viewed as weak. Most patent protection is found “upstream” of the flower itself and within the agricultural technology that was used to produce the flower in the first place. Major lighting companies protect the technology for their grow lights, and packaging companies protect the machines used to assemble the product that is eventually shipped off to a dispensary. As for branding, trademark protection is not available for flower until cannabis is removed as a Schedule I drug.

VAPING

Vaping is one of the most efficient ways to consume cannabis. Vaping uses lower temperatures than smoking, so the active ingredients of the product are not incinerated. Additionally, as with smoking, vaping cannabis delivers the active ingredients directly to the bloodstream through the lungs, generating rapid onset of effects with relatively high bioavailability of roughly 50%.

IP protection for vaping can vary based on the product within the sub-industry. The consumables of the vaping world are difficult to protect for the same reasons as discussed above with respect to flower. Vape pens and e-rigs, however, are frequently patented and trademarked—and this intellectual property is leveraged by its owners to gain market share in the industry.

TINCTURES, EDIBLES AND TOPICALS

Tinctures are absorbed through the mucous membranes under the tongue and directly to the bloodstream. Absorption through sublingual mucous membranes is less efficient than that through the lungs. Bioavailability with tinctures is thus greater than that for smoking (because cannabinoids are not incinerated), but less than that for vaping.

Edibles pass through the digestive tract, where most of the cannabinoids are killed off, either by stomach acids or by the liver during first-pass metabolism, leaving only about 5% to make it into the bloodstream. Topicals also have very low bioavailability, since they cannot penetrate the skin.

There are many patents for cannabis tinctures, edibles, and topicals—from the formulations, methods of manufacturing, and extraction techniques, to name a few. Like flower, trademark protection is not currently available for these product types until cannabis is federally descheduled. However, marks related to non-consumable CBD products (e.g., topicals) can be registered at the US Patent and Trademark Office as not being ingestible.

CANNABIS SUBINDUSTRIES WITH HEAVY IP FOOTPRINTS

Low bioavailability is clearly a problem in cannabis—only a small fraction of the cannabis compounds actually make it into the user’s body to generate the intended effect. It is thus unsurprising that much research is currently focused on technologies to improve cannabis’ bioavailability. In fact, thousands of patents have already been issued in this area, while significant research is ongoing.

Examples of technologies that improve bioavailability include the following.

  • Nanotechnology is being combined with special surfactants to reduce the size of cannabis particles and coat them with substances that enable them to be more easily absorbed into the body. For example, much like Listerine strips that dissolve under the tongue, Kin Slips cannabis strips use nanotechnology to improve sublingual absorption of the cannabis in their strips. A search of the USPTO database of “cannabis and sublingual and absorb” yields almost 7,000 patents.
  • Just like nicotine patches deliver nicotine through the skin to help cigarette smokers quit smoking, transdermal skin patches enable cannabis compounds to penetrate the skin and reach the bloodstream, where they can circulate through the body to distant receptors. Papa & Barkley is one of the better-known suppliers of transdermal patches. A search of the USPTO database of “cannabis and transdermal” yields almost 6,500 patents.
  • Interestingly, cannabis honey, that is, honey made by bees that have processed cannabis pollen, seems to be much more highly bioavailable than the cannabis in regularly infused cannabis honey. A search of the USPTO database of “cannabis and honey” yields a surprising 1,323 patents!
  • Self-emulsifying drug delivery systems (SEDDS) are new promising technologies for increasing the bioavailability of oral (and topical) forms of delivering cannabis by helping active ingredients bypass the liver and directly enter the bloodstream. A search of the USPTO database of “cannabis and ‘self-emulsifying drug delivery’” yields over 200 patents.

This is the latest in the series titled “NPE Showcase,” where we discuss high-volume non-practicing entities (or as some call them, “patent trolls”). This installment will focus on a court where many patent trolls file suit, the U.S. District Court for the District of Delaware.

Delaware has long been a home to corporations across the country. With its low taxes and sophisticated courts, corporations find solace by incorporating in “The First State” even if they never step foot within its confines.

The Supreme Court’s TC Heartland case altered the game of forum shopping when it held a corporation “resides” only within its state of incorporation for purposes of venue. This caused the already busy District of Delaware to accept even more patent cases as plaintiffs scurried to avoid venue challenges in other forums. As of this year, approximately 22% of all patent cases are filed in the District of Delaware.

The situation presented even more challenges when Chief Judge Leonard P. Stark was elevated to the Federal Circuit on March 17, 2022. Judge Stark had presided over the third most patent cases in the country (Judge Albright of W.D. Texas and Judge Gilstrap of E.D. Texas being one and two, respectively). The court is well equipped to handle its caseload even with Stark’s departure, but it had big shoes to fill in doing so.

Enter now-Chief Judge Colm F. Connolly, who rose to the occasion by entering several standing orders for the management of patent cases. Parties must now rank their summary judgment motions and, “barring exceptional reasons determined sua sponte by the Court,” the court will not consider motion no. 2 if motion no. 1 is denied. Judge Connolly enacted a similar albeit somewhat different rule for Daubert motions, clearly attempting to avoid abusive motion practice and the “shotgun” approach to litigation.

What about NPEs? It is no surprise that many of the cases filed in Judge Connolly’s districts are from nonpracticing entities, and many of these entities receive outside funding. Judge Connolly issued a rule meant to limit the burden of litigation finance discovery and require the disclosure of “The identity, address, and, if a legal entity, place of formation of the Third-Party Funder(s)” among other disclosures.

This rule recently caused friction when Judge Connolly pressed a recent NPE owner for details relating to the entity. The owner was ordered to appear in person despite residing in Waco, Texas, and offered few details regarding the company he allegedly owned. The owner was not involved in naming the NPE, paid nothing for its patents, and only learned about settlements after the fact. The hearing itself was tense and resulted in many objections from the plaintiff’s attorneys, hoping to avoid the revelation of protected information about the NPE.

Judge Connolly’s standing order is meant to reduce the burden of discovery while simultaneously improving transparency. Given the reaction to this hearing by the Plaintiff’s bar, it may also help to reduce the caseload in the overburdened District of Delaware.

Advertisers took home a win on one of the latest consumer class actions to make you scratch you head and ask “REALly?”  On August 4, the U.S. District Court for the Northern District of Illinois dismissed a putative class action against a major food manufacturer alleging that its popular frozen food was mislabeled. Specifically, the class argued the product label omitted that (1) starch, nonfat milk, and whey were added to the “REAL” mozzarella cheese, and (2) tomatoes were replaced with non-tomato thickeners including cornstarch.  Plaintiff challenged the product label’s use of the “REAL” dairy seal, a trademark owned by the National Milk Producers Federation (“NMPF”), which has a vetting process to authorize use of the REAL seal to third parties. The Court concluded that “a product that says it contains mozzarella cheese and tomato sauce when the [p]roduct does, in fact, contain mozzarella cheese and tomato sauce is not misleading to the reasonable consumer simply because its label does not list its additives.”

The Court called Plaintiff’s reading of junk food labels “a fanciful interpretation of the Product’s label that obfuscates who the real consumers are and how they would understand and react to the label.”  More to the point, the Court explained “[t]o suggest that a reasonable consumer expects pure (i.e. without additives) mozzarella or tomato sauce when buying a bite-size frozen bagel pizza ignores the true nature of the product as a sum of pizza ingredients, including but not limited to, mozzarella and tomato sauce.”  The Court acknowledged that while “true statements can have misleading implications,” here, there is no implication beyond what the unambiguous description of the Product on the label actually says—that the Product contains mini bagels with mozzarella cheese (which is REAL cheese) and tomato sauce.

Because the Plaintiff failed to allege a deceptive act against the defendant food manufacturer, its state law claims for consumer fraud failed.  Absent an underlying wrongdoing, the Court dismissed Plaintiff’s remaining claims for out-of-state consumer fraud statutes; breach of express warranty, implied warranty of merchantability, and Magnuson Moss Warranty Act; negligent misrepresentation; fraud; and unjust enrichment.  To wit, “because the Product’s labeling is not false, misleading, or deceptive as a matter of law, Plaintiffs other claims also fail.” In reaching its decision, the Court highlights two important components of claims analysis: context and validity.  To the first point, the Court did not consider the statement without regard to the type of product, reasoning that the language was not misleading given the “nature of the Product and the reasonable expectations of its consumers.”  In addition, the Court considered the product label and ingredients as a whole, rather than read the descriptions at issue independently.  The Court further adopted the perspective of the “reasonable consumer” who would be purchasing processed foods, placing the interpretation in the eyes of the “reasonable consumer” in this situation. As to the second point, the product description and seal were indeed true on their face.  The ingredient list supported both claims.  The fact that additives were also included in the product did not make the description and seal untrue.  Thus, context and validity play a role in determining what is REAL in the ad space.


Despite legislative uncertainty (e.g., bills that have been passed, multiple times, but not become law), a wide range of brilliant entrepreneurs, industrial companies, investment mavens, and service providers have been consciously and conscientiously advancing the US cannabis industry’s interests.

MJBizCon and CannaVest West are proof positive – the breadth, depth, and sophistication of cannabis-related products, services, and innovations on display was truly staggering.

About the Events

MJBizCon featured thousands of square feet and hundreds of products, services, innovations, and infrastructure relating to the booming US cannabis industry.  Entrepreneurs and innovators displayed impressive products relating to growing plant, producing and processing extracts, and a wide variety of consumables from extracted terpenes, to chocolates and gummies, to salves and  lotions.  Industrial companies displayed scalable lighting solutions, temperature and humidity control technologies, extraction systems, packaging systems, and software and artificial intelligence growing systems, among the vast array of capital equipment involved in scaling up operations in the cannabis industry. 

At CannaVest West, private investors, fund managers, and savvy capitalists provided perspectives on fund raising, business strategy, taxation and accounting, among other implications of business in the space. Service providers, including accountants, lawyers, investment bankers and consultants, were able to highlight the sophisticated support services available to the cannabis industry.

An IP Lawyer’s Takeaways

As an intellectual property (IP) lawyer, I was pleased to see that at least some of the many assets deployed in the burgeoning industry were being protected by IP protection mechanisms, but there is so much more to be done to bring this industry on par with other advanced industries that rely on IP to protect innovation and provide commercial advantage.  Perceived limitations on obtaining patents and trademarks in the cannabis industry is not an excuse.

As with other sophisticated industries in the US, IP implications for the cannabis industry are many. From trademarks, to design patents, to utility patent protection, being conscious of available protection mechanisms is key. And, the need and ability to protect innovations as the cannabis industry continues to advance can/will increasingly add value and provide competitive advantages. As has been the case with virtually all industries, IP protection represents commercial and technological innovation and advances, and will differentiate players in the marketplace. Getting to know and being comfortable with an IP attorney should be on every player’s list of things to do.

Notwithstanding the lack of action by Congress, the “invisible hand” (of Adam Smith’s economic doctrine) has been and is vigorously at work creating the entrepreneurs and inventors, and guiding sophisticated capitalists and capital, into a robust cannabis industry here in the US. Opportunities and innovation need to be protected in this industry that is growing in leaps and bounds.