You can. If the molecule is novel and its conjuring non-obvious, then you most certainly can.
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I’ll say it again.
If you know there is a patent that in any way, shape, or form may overlap with something you intend on marketing.
Spend $500 to have a patent lawyer do a quick scan of the databases and see if you’re clear. They will sift through the irrelevant unenforceable “troll” patents. They will tell you what to avoid specific to your situation. They will see what we don’t see and don’t understand (even if we think we do).
We do know that some hydrogenated cannabinoids are covered in patents. They may be rock solid patents that would be impossible to get around. They may be garbage, totally unenforceable. They may be somewhere in between where with proper guidance you could produce the desired molecule as long as you don’t do a specific step. It might be a simple as swapping out a solvent. It might mean different equipment. That’s what the lawyer helps you determine.
If you’re not a lawyer who specializes in this field then you’re not qualified to make that distinction or giving anyone else legal advice. It will always be a case-by-case scenario. If you plan on going into business producing something new you should always know your legal exposure. That’s just common sense. Filing for a patent is expensive, paying a professional to clear you for existing patents is as little as a few hundred bucks. Small price to pay for a potentially big headache down the line.
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https://cen.acs.org/articles/95/i7/Dispute-over-legal-rights-anticancer.html
Here’s a headache of a legal battle that I remember hearing around my lab in uni.
Tldr: One company makes potent anticancer drug but patents 1 of the wrong structures. Another uni patents the right structure and leases it to a manufacturer. Legal battles ensue, which at first deadlocks the drug. One patents the structure and the other patents the process of use. Later they decide to just move forward with clinicals while legal proceedings happen. Large names are involved like Scripps and Penn state, as well as manufacturers Sorrento and oncoceutics.
In this case im glad they moved forward during legal proceedings because at the end of the day if this drug is good for treatment, then doing nothing harms the patients.
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Yes, all two of them. What do you even mean by thoroughly patented?
Fact is that the chemistry used is painfully obvious and was already done by Mechoulam fifty years ago.
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Take a look at the patent. It covers more than just two cannabinoids. That patent is for hydrogenated cannabis oil (HCO). As in, hydrogenation of all things defined within a “cannabis oil extract.”
As it’s written, it covers the hydrogenation of any “cannabis oil extract” which is defined in the claims to be any oil extract that contains THCa and/or CBDa. That thoroughly covers any currently existing cannabis genetics. Cannabinoids, terpenoids, flavonoids, sterols, etc all are cited.
Is there a way around that? Probably. You know who can answer that? Not you, not me, but a patent lawyer. This was my entire point.
I realize you think the chemistry is obvious. I’m not saying it isn’t. Patent was still granted. As I’ve said several times now, the problem is that this is not our call to make. That’s a case for lawyers to make. Suggesting to disregard this patent based on your opinion is legal advice that I can only assume you are not qualified to make. If you’re trying to hydrogenate anything made from a cannabis oil extract, people should ask a lawyer what the legal exposure is because even if it’s not HHC it still might be categorized as “HCO.”
Your unique process may be totally safe from the patent, or it may be fine if you omit a certain step, or advertise for a different use (such as not for tumor regression like Mark did). It’s a broad-spanning patent which may or may not be a problem. The point is if you know a patent may be in the way, you consult a lawyer who specializes in this to advise you on how to (or how not to) proceed. This isn’t really anything to argue, it’s just common sense.
I never said that all chemistry is obvious. But I am saying that if you ask 100 chemists how they would add H2 to a double bond, at least 99 of them would reply catalytic hydrogenation using palladium.
Chemistry IP or any IP for that matter isn’t rocket surgery. For IP to be strong, the processes described need to be NON-OBVIOUS to someone skilled in the art.
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I’m not disagreeing with you. The only thing I disagree with is if you think this doesn’t require legal council from someone who specializes in this.
I do think the concept is kind of obvious. We have been hydrogenating plant oils forever. I just think it’s important people cover their bases legally by paying some small legal fees so they can fully capitalize on what they develop (and not have to worry about getting slapped with legal fees to try and defend it later). It’s a hell of a lot easier to pay a lawyer who specializes in patents like $500 (possibly multiple sessions) to teach you how to properly navigate around a related patent so you don’t have to change up your whole process later.
It is sometimes ridiculously simple to “get around” a patent. It can be something as minuscule as changing the order of a process or swapping ethanol for isopropyl (made up example). Sometimes it’s very expensive or on rare occasions not feasible at all (in the event of a rock-solid all-encompassing patent). This might not be that, we really don’t know how cannabis patents are going to hold up yet in general. Always will be cheaper to pay for the right advice so you know you tdo it right the first time.
Rawr science
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Exactly, but distilled d8/d9 does not contain any THCa or CBDa. In summary, Dr Scialdone’s patent doesn’t thoroughly claim HHCs. It sure has its merits, but non-obviousness isn’t one of them.
That is actually exactly why I said it might be feasible to get around since it doesn’t mention decarbed cannabinoids. I just know it’s a better idea to run that by a legal professional first. Again I’m not disagreeing with you I just don’t want people to think patents hold no merit. Always better to cover your ass first. If you’re making moves producing new drugs you owe it to yourself to have a patent lawyer at your disposal anyway. You never know what side of the lawsuit you’ll be on and you just might make something even better
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I venture to say that any experienced medicinal chemist who has worked in an environment where analyzing competitor’s IP is a mainstay of pondered activities is just as qualified as an IP attorney to make these calls.
And you are right, it doesn’t matter what you, I, or even an IP attorney says. It would come down to litigation, and expert witnesses that are skilled in the art. Obviously, that would only happen if IP holder sends someone a cease and desist and the recipient decides to challenge the claim on which the cease and desist letter is based.
I wouldn’t classify hydrogenating something that the original IP doesn’t even claim a get around activity. The original IP doesn’t even apply.
You don’t need an IP attorney to tell you that.
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Idk mang I’m just encouraging people to exercise caution. If you’re able, by all means it’s your decision. My advice was not intended to exclusively be about this one single patent. I’ve just had very good experience speaking with patent lawyers in the past so I advocate for entrepreneurs to pick their brain from time to time. Worth the money
I may have contempt for how IP is granted, how IP sometimes stifles pharmaceutical innovation.
Patents definitely have merit, essentially keeping some degree of peace among pharmaceutical and biotech companies.
But I see a danger in always deferring to attorneys. It further chips away at our collective rational thinking.
Not to disparage Dr. Scialdone’s patent, on the contrary, he knew what he was doing and wisely avoided non-acidic cannabinoids in his claims. But the FDA would never consider a diastereomeric mixture of drugs for treating a disease for which there are already approved treatments.
And the medical benefits claims are the only ones with a remote possibility of actually being litigated. The rest is just too obvious and doesn’t really represent improvement over prior art.
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