For nearly a century, the United States has offered some form of intellectual property (IP) protection for novel plant varieties. Companies operating within the agriculture and horticulture space have had multiple options available to them for protecting novel plant varieties for several decades. The same is now true for companies operating within the cannabis industry, with some caveats.

Though federal illegality has created some limits on IP options for novel cannabis varieties, patent protection has always been an option in one form or another. The Agriculture Improvement Act of 2018, commonly referred to as the 2018 Farm Bill, made two key changes to federal cannabis and IP law that opened further options for cannabis breeders, as well. See Public Law 115-334, at Sects. 10113 and at Sect. 10108 (Dec. 20, 2018). Thus, under current U.S. law, there are three primary options that cannabis breeders can use to secure protection for their novel varieties. Which options are available and useful depends on several factors.

• Primary considerations when selecting IP protection for cannabis varieties

Though there are countless factors that should be considered when deciding which types of IP rights should be obtained to protect a new cannabis variety, there are two factors that are of primary concern: whether the new cannabis variety is marijuana (i.e., high-THC) or hemp (i.e., low-THC), and whether the new cannabis variety will be reproduced asexually/clonally or sexually/seed.