Federal Circuit Affirms Non-Infringement in Cannabis Extraction Patent DisputeMay 8, 2023

In a recent decision, the Federal Circuit affirmed a non-infringement ruling in a case involving Canopy Growth Corporation and GW Pharmaceuticals, two major players in the cannabis industry. At issue was Canopy’s U.S. Patent No. 10,870,632, which covers a method of extracting cannabinoids from cannabis using carbon dioxide (CO2) in liquefied form under subcritical pressure and temperature conditions.

The case revolved around the interpretation of “subcritical pressure and temperature conditions”. The district court construed the phrase to mean that both the pressure and the temperature must be subcritical. In contrast, Canopy maintained that the phrase should be interpreted more broadly, allowing for either the temperature or pressure (or both) to be subcritical. Specifically, Canopy offered an interpretation in which the phrase “pressure and temperature” is read as a unit modifying “conditions” in such a way that it means a combination of “pressure and temperature conditions” that is subcritical.

Beyond considering the plain meaning of the phrase, a significant aspect of the decision relied on an examination of the prosecution history. Canopy had initially sought claims covering three separate sets of conditions: (1) supercritical fluid CO2, (2) CO2 with subcritical temperature and supercritical pressure, and (3) CO2 with subcritical pressure and temperature conditions. However, Canopy ultimately only claimed the third set of conditions: the one in which both pressure and temperature must be subcritical. The court found that the prosecution history clarified the meaning of the claim language and supported the district court’s interpretation. As a result, the Federal Circuit upheld the district court’s ruling, leading to a final judgment of non-infringement in favor of GW Pharmaceuticals.

Brian D. Keppler, Ph.D. is a registered Patent Agent in the MVS Biotechnology & Chemical Practice Group. To learn more, visit our MVS website, or contact Brian directly via email.

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