Public Domain, Trade Secrets, and the (General) Timeline of Patentability
Cannabis + Patents 101, Part 3
Now that you know about the different kinds of patents that apply to cannabis and how these patents get issued, there are a couple more concepts in patent law that are super important to understand: trade secrets and the public domain. These play key roles in determining whether an invention is new enough to patent, a.k.a. whether it meets the novelty requirement.
Specifically, the USPTO requires that patent applications be filed within one year of an invention entering the public domain. Before it does, it may be covered by trade secret law. Thus, according to the rules of the US patent system, the date that an invention moves from one into the other is a day that a very important clock starts ticking.
Public domain is a phrase often associated with copyright law — we often think of the works of Shakespeare, for example, as belonging to the public domain. In patent law, the concept is similar but plays by different rules and applies to different kinds of things (e.g. an authored work, like a novel or play, vs. a machine or process). In either case, when works are in the public domain, they belong to everyone.
Patentable items enter the public domain a few different ways. For plants, they primarily enter the public domain once they’ve been put up for sale. The plant doesn’t have to sell, nor does the market have to be public, for this criteria to be met.
Before an item enters the public domain, it may be considered a trade secret. A trade secret is another form of intellectual property protection. As outlined in the Uniform Trade Secret Act (UTSA), to be considered a trade secret, the invention must:
- Be an actual secret. All trade secrets are confidential, which also means that reasonable attempts at secrecy must be made. For example, requiring non-disclosure agreements (NDAs) prior to sharing information, or keeping the trade secret in a locked facility. Locked away in one’s head may be covered, but every case is different.
- Have commercial value derived from its secrecy. The secret must have commercial value or provide a competitive advantage; this is part of what distinguishes a trade secret from other kinds of secrets.
Every cannabis plant has a case-specific situation with regards to trade secrets and the public domain. That said, based on these definitions, it’s safe to say that the vast majority of cannabis cultivars belong in the public domain.
And that concludes Cannabis + Patents 101! If you really want to get into the weeds about this stuff, the USPTO site has you covered. Check out:
- General Information About 35 U.S.C 161 Plant Patents via the USPTO
- General Information Concerning Patents via the USPTO
And of course, keep your eyes on Into the Weeds!
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Got a question you’d like to see answered on Into the Weeds? Let us know! Send us a message or ask in the comments below. Please note that OCP cannot offer legal advice, but we can do our best to help inform the public about patent law and how it works.
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Credits
Writing & Diagrams
Beth Schechter, OCP Executive Director
Editing
Jen Hudyma, OCP Volunteer
Jesse Dodd, OCP Board Member
Legal Review
Dale Hunt, PhD., OCP Legal Advisor & Partner at Hahn Loeser
