DCT
1:18-cv-01922
United Cannabis Corp v. Pure Hemp Collective Inc
Key Events
Complaint
I. Executive Summary and Procedural Information
- Parties & Counsel:
- Plaintiff: United Cannabis Corporation (Colorado)
- Defendant: Pure Hemp Collective Inc. (Colorado)
- Plaintiff’s Counsel: Cooley LLP
- Case Identification: United Cannabis Corporation v. Pure Hemp Collective Inc., 1:18-cv-01922, D. Colo., 07/30/2018
- Venue Allegations: Venue is alleged to be proper in the District of Colorado as both Plaintiff and Defendant are Colorado corporations with their principal places of business within the state.
- Core Dispute: Plaintiff alleges that Defendant’s cannabidiol (CBD) products infringe a patent directed to highly-concentrated liquid cannabinoid formulations.
- Technical Context: The lawsuit is situated in the field of cannabis-derived therapeutics, focusing on the chemical composition and purity of commercial extracts.
- Key Procedural History: The complaint alleges that Plaintiff provided Defendant with actual notice of the patent-in-suit via a cease-and-desist letter approximately three months before filing the lawsuit.
Case Timeline
| Date | Event |
|---|---|
| 2014-10-21 | '911 Patent Priority Date |
| 2016-09-01 | Plaintiff allegedly began marking products with '911 Patent |
| 2017-08-15 | '911 Patent Issue Date |
| 2018-05-07 | Plaintiff sent notice letter to Defendant |
| 2018-07-30 | Complaint Filing Date |
II. Technology and Patent(s)-in-Suit Analysis
- Patent Identification: U.S. Patent No. 9,730,911, "Cannabis extracts and methods of preparing and using same," issued August 15, 2017 (’911 Patent).
The Invention Explained
- Problem Addressed: The patent asserts a need for more effective and safer cannabis extracts for medical use, noting that previously known extraction procedures did not reliably provide the desired active ingredient profiles for specific therapeutic purposes ( ’911 Patent, col. 1:32-40).
- The Patented Solution: The invention claims to solve this problem by providing specific liquid formulations of cannabis extracts that contain highly-concentrated, predefined ratios of certain cannabinoids. The patent describes creating a "botanical drug substance" (BDS) by isolating and concentrating specific cannabinoids to achieve formulations where, for example, a single cannabinoid constitutes at least 95% of the total cannabinoid content, thereby enabling standardized and targeted therapeutic applications (’911 Patent, col. 1:15-18, 43-45; col. 2:2-28).
- Technical Importance: This technology represents an effort to standardize cannabis-based medicine by creating replicable formulations with specific, high-purity chemical profiles, moving beyond the inherent variability of raw plant material (’911 Patent, col. 1:12-18).
Key Claims at a Glance
- The complaint identifies independent claim 10 as an exemplary asserted claim.
- The essential elements of independent claim 10 are:
- A liquid cannabinoid formulation,
- wherein at least 95% of the total cannabinoids is cannabidiol (CBD).
- The complaint alleges infringement of "one or more claims" and reserves the right to assert others (Compl. ¶¶ 3, 22). Other independent claims in the ’911 Patent cover formulations with at least 95% purity of other cannabinoids or combinations, such as THCa (claim 1), THC (claim 5), and THC/CBD (claim 20).
III. The Accused Instrumentality
Product Identification
The complaint accuses a range of Defendant’s "wellness products containing cannabis extracts, including tinctures, gel capsules, vape pens, salves, and topical ointments" (Compl. ¶ 20). The "Vina Bell 5000mg product" is specifically identified as an infringing product (Compl. ¶ 22).
Functionality and Market Context
The accused products are commercialized for consumer wellness and contain cannabis-derived extracts (Compl. ¶ 20). The complaint’s infringement theory is based on the chemical composition of these products. It alleges that Plaintiff conducted "chemical composition tests" on the Vina Bell 5000mg product, which purportedly confirmed that its formulation meets the limitations of the asserted patent claim (Compl. ¶ 22).
IV. Analysis of Infringement Allegations
No probative visual evidence provided in complaint.
Claim Chart Summary
’971 Patent Infringement Allegations
| Claim Element (from Independent Claim 10) | Alleged Infringing Functionality | Complaint Citation | Patent Citation |
|---|---|---|---|
| A liquid cannabinoid formulation, | Defendant's Vina Bell 5000mg product is a liquid product containing cannabinoid formulations. | ¶22 | col. 18:55 |
| wherein at least 95% of the total cannabinoids is cannabidiol (CBD). | Plaintiff's chemical analysis allegedly revealed that the Vina Bell 5000mg product "contains a cannabinoid formulation wherein at least 95% of the total cannabinoids is CBD." | ¶22 | col. 18:56-57 |
Identified Points of Contention
- Technical Question: The central factual dispute will likely concern the chemical composition of the accused products. The question is whether Defendant’s products, when subjected to discovery and testing, actually meet the "at least 95% of the total cannabinoids is cannabidiol (CBD)" limitation. The complaint’s allegation rests on its own testing (Compl. ¶ 22), the methodology and results of which will be a primary focus of discovery.
- Scope Question: The case may raise the question of patentable subject matter eligibility under 35 U.S.C. § 101. A court may need to determine if a claim to a liquid formulation, defined almost entirely by a high purity level of a naturally-occurring compound (CBD), is patent-eligible or an unpatentable attempt to claim a product of nature.
V. Key Claim Terms for Construction
- The Term: "total cannabinoids"
- Context and Importance: The infringement analysis for claim 10 directly depends on a mathematical ratio: the amount of CBD relative to the amount of "total cannabinoids." The definition of this denominator term is therefore dispositive. Practitioners may focus on this term because the selection of which cannabis-derived compounds are included in the "total" and the analytical method used to measure them will determine whether the 95% purity threshold is met.
- Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: A party could argue the term should be interpreted broadly to include all identifiable cannabinoids, noting the patent’s background discussion that "at least 85 different cannabinoids have been isolated from the plant" (’911 Patent, col. 3:55-57).
- Evidence for a Narrower Interpretation: A party could argue that "total cannabinoids" should be limited to the specific set of major cannabinoids that the patent repeatedly discusses and exemplifies in its formulations (e.g., THCa, CBDa, THC, CBD, CBN, CBC) (’911 Patent, col. 1:49-54). The patent’s statement that methods of calculating content are "well known in the art" may itself become a point of contention, requiring the court to determine which "well known" standard applies (’911 Patent, col. 7:7-9).
VI. Other Allegations
- Indirect Infringement: The complaint makes a general allegation of induced infringement but does not plead specific facts explaining how Defendant allegedly caused third parties to infringe, such as by providing specific instructions or user manuals (Compl. ¶ 28).
- Willful Infringement: The complaint alleges willful infringement based on both constructive and actual notice. It alleges constructive notice from Plaintiff’s product marking beginning in September 2016 (Compl. ¶ 30) and actual notice from a letter sent to Defendant on May 7, 2018, which allegedly informed Defendant of its infringement (Compl. ¶ 23). The complaint asserts that Defendant continued its accused activities despite this actual knowledge (Compl. ¶ 24).
VII. Analyst’s Conclusion: Key Questions for the Case
- A core issue will be one of evidentiary proof: can Plaintiff demonstrate through discovery and expert testing that the accused products, as sold by Defendant, consistently meet the precise "at least 95%" purity limitation of the asserted claim? The case may depend heavily on a battle of competing chemical analyses.
- The case also presents a fundamental question of patent eligibility: is a claim for a formulation of a natural substance, where the point of novelty is a high level of purity, directed to patentable subject matter under 35 U.S.C. § 101, or does it impermissibly claim a law or product of nature?