Can the U.S. government sue medical marijuana dispensaries for copyright infringement? US Patent 6630507, which was assigned by The United States of America as represented by the Department of Health and Human Services, is loaded with the many medicinal values of cannabinoids, including Tetrahyrocannabinol. According to the patent: Cannabinoids have been found to have antioxidant properties, unrelated to NMDA receptor antagonism. This new found property makes cannabinoids useful in the treatment and prophylaxis of wide variety of oxidation associated diseases, such as ischemic, age-related, inflammatory and autoimmune diseases. The cannabinoids are found to have particular application as neuroprotectants, for example in limiting neurological damage following ischemic insults, such as stroke and trauma, or in the treatment of neurodegenerative diseases, such as Alzheimer's disease, Parkinson's disease and HIV dementia. Nonpsychoactive cannabinoids, such as cannabidoil, are particularly advantageous to use because they avoid toxicity that is encountered with psychoactive cannabinoids at high doses useful in the method of the present invention. A particular disclosed class of cannabinoids useful as neuroprotective antioxidants is formula (I) wherein the R group is independently selected from the group consisting of H, CH.sub.3, and COCH.sub.3. ##STR1## Many companies use the various cannabinoids, specifically THC and Cannabidiol, to earn a profit. Can the U.S. government sue medical marijuana dispensaries, or any company that uses Cannabinoids, for copyright infringement?
First, a preliminary correction. Patents are different than copyright. 35 USC §271 defines patent infringement: Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent. Can patent holders sue patent infringers? Yes. See 35 USC §281: A patentee shall have remedy by civil action for infringement of his patent. Does the US Government own US Patent 6630507? Yes. The assignee is "The United States of America as represented by the Department of Health and Human Services". What does this patent claim? "Claims" are the things that the patent protects for exclusive use (or making or selling of) by the patent owner. Quoting from Joseph D. Summer, Patenting Marijuana Strains: Baking Up Patent Protection for Growers in the Legal Fog of this Budding Industry: [US Patent 6630507] patents a method of use of a non-psychoactive cannabinoid compound for treating some diseases. The patent does not claim a composition of matter or a compound, but rather a method for using specific cannabinoids for treating oxidative stress. Are dispensaries infringing? Not for direct infringement (but see the next section). They are not selling the method of treatment. The closest a dispensary comes is selling the raw material that may be used in such a treatment. Who would be liable? Doctors or hospitals prescribing or administering the claimed treatment? No. 35 U.S. Code § 287(c) says: With respect to a medical practitioner’s performance of a medical activity that constitutes an infringement under section 271(a) or (b), the provisions of sections 281, 283, 284, and 285 shall not apply against the medical practitioner or against a related health care entity with respect to such medical activity. This says that even if a medical practitioner infringes a patented medical method when they use that method, they cannot be punished. But, direct infringement did happen, and thus, providers of the materials necessary for that direct infringement may have committed contributory infringement 35 USC §271(c). This is where a dispensary may be liable. If they provide the products or compounds that the claimed method requires, to somebody who directly infringes (even if that direct infringer happens to be shielded from liability), the dispensary may be liable for contributory infringement. This would depend on whether the particular compound is "a staple article or commodity of commerce suitable for substantial noninfringing use".
From the legal perspective, the question is whether the substance is legal in Australia. The legal root of the matter is the Therapeutic Goods Administration. Dosages above 100 mg are on &quot;Schedule 4&quot; meaning they require a prescription. There are also apparently state regulations. In Queensland, there is an amendment to the Drugs Misuse Regulation 1987 to ensure that the substance 5-Hydroxy tryptophan (5-HTP) is captured in Schedule 2 with the exception of preparations that contain 100mg or less of 5-HTP per dosage unit Schedule 2 is &quot;Substances, the safe use of which may require advice from a pharmacist and which should be available from a pharmacy or, where a pharmacy service is not available, from a licensed person&quot;. The fact that it is very difficult to verify what the current regulations are may explain the &quot;friction&quot;, which may make online purchases difficult. The underlying reason for government regulation is to keep people safe. Politics SE is an appropriate place to debate the balance between safety and usefulness.
The issue you identify isn't really a copyright issue. The same issue would arise if the product contained public domain images in the advertisements that aren't present in the work itself. Essentially, the question comes down to whether there was actionable deceptive advertising. Usually, these claims arise under specialized consumer protection statutes that offer remedies and means of enforcement different from an individualized fraud lawsuit, and usually a deceptive advertising claim is easier to prove than traditional fraud lawsuit. Traditional fraud lawsuits normally require a showing of damages caused by reasonable reliance upon the misrepresentation, which is uneconomic to prove in the case of an individual small consumer purchase. Usually, deceptive advertising of consumer products is established in a lawsuit by a government official in charge of regulating deceptive advertising or a class action lawsuit, and often statutory damages are assigned to each violation rather than requiring detailed proof of economic harm for compensatory damages from some but not other images being present. Often fine print in the advertisement or in a purchase form before buying the product discloses the disconnect. Also, the mere presence of an image in an advertisement doesn't necessary imply that it is included in the product. So prove of deceptive advertising liability in these cases is often difficult even with these relaxed standards. There are many gray area and close cases, and often, businesses settle these lawsuits rather than litigating them. A more specific answer would require knowledge of which jurisdiction's laws apply, which is often a non-trivial question in Internet based advertising lawsuits.
The federal Health Insurance Portability and Accountability Act of 1996 (HIPAA) may apply to you and provide certain rights. HIPAA does seem to cover part of this, though if it covers you particularly and the lab that performed the test is a separate question. On the Department of Health and Human Services website discussing HIPAA, they outline requirements discussing pre-employment drug tests. Basically, your authorization is required in order to release the results of the drug test to your employer and there is nothing prohibiting the employer from conditioning employment on your provision of that authorization. This seems to indicate that the drug test is a medical record. In another section on the same web site concerning your medical records, it outlines that the Privacy Rule gives you the general right to inspect, review and receive a copy of your medical records if the health care provider is covered by the Privacy Rule. You can read about the privacy rule on yet another section of that web site. Generally speaking, the privacy rule applies to any health care provider that transmits health records electronically. Certain exceptions to the rule apply, however determining what those exceptions happen to be is a more difficult task. You will notice from the hhs.gov web site that any entity that is covered by the privacy act is required to give you a privacy practices notice (with certain exceptions). If you didn't receive a privacy practices notice then the entity conducting the drug test is probably not covered by HIPAA. If you did receive a privacy practices notice then the entity conducting the test is covered by HIPAA and you have a right to review your records.
Short Answer if you use medical marijuana prescribed by a doctor. Are you automatically an unlawful user of a controlled substance and cannot possess, use, buy, sell, gift, or transfer firearms? Basically yes. If you use medical marijuana prescribed by a doctor on a regular basis you are a prohibited person pursuant to 18 U.S.C. 922(g)(3), and you are therefore subject to severe federal penalties for possessing, using, buying, selling, giving and transferring firearms (although case law has held that if, for example, you inherit a firearm, you can promptly negotiate its sale to a third party to divest yourself of ownership of it through a third party broker if you do not use the firearm or possess it; the statute is not intended to operate as a property forfeiture law). Long Answer Not many cases address this question. One of the leading cases is U.S. v. Bennett (10th Cir. 2003). It held that is someone is a regular user of illegal drugs at the time of the offense then that person is a prohibited person, even if he was not under the influence at the moment of offense. In an analysis that really needs to be quoted at length (some case law citations omitted) to capture exactly what was held: The sentencing guidelines define a “prohibited person” in relevant part as a person “who is an unlawful user of or addicted to any controlled substance” under 18 U.S.C. § 922(g)(3). See U.S.S.G. § 2K2.1, cmt. n. 6. The statute does not define the phrases “unlawful user of ... any controlled substance” or “addicted to any controlled substance.” It does, however, define “addict” as an “individual who habitually uses any narcotic drug so as to endanger the public morals, health, safety, or welfare, or who is so far addicted to the use of narcotic drugs as to have lost the power of self-control with reference to his addiction.” 21 U.S.C. § 802(1). Mr. Bennett believes the district court erred in not defining the language “unlawful user of ... any controlled substance” the same as “addicted to any controlled substance.” He argues he is not an “addict,” as defined under 21 U.S.C. § 802(1), because he used methamphetamine and marijuana rather than narcotic drugs. Mr. Bennett's argument presupposes the definition of the word “addict” under 21 U.S.C. § 802(1) is synonymous with the phrase “addicted to any controlled substance” under 18 U.S.C. § 922(g)(3). We need not consider whether this presumption is correct because we conclude, whatever the precise meaning of the phrase “addicted to any controlled substance,” its meaning is distinct from the meaning of the phrase “unlawful user of ... any controlled substance.” The words “unlawful user of or addicted to any controlled substance” are written in the disjunctive, implying each has a separate meaning. See Reiter v. Sonotone Corp., 442 U.S. 330, 339, 99 S.Ct. 2326, 60 L.Ed.2d 931 (1979) (“Cannons of construction ordinarily suggest that terms connected by a disjunctive be given separate meanings, unless the context dictates otherwise; here it does not.”). Even Mr. Bennett agrees the statute “breaks down a prohibited person into two groups: a. User, or b. Addicted.” We therefore conclude the district court did not err in defining the phrase “unlawful user of ... any controlled substance” differently from the phrase “addicted to any controlled substance.” In a related argument, Mr. Bennett argues he is not a “prohibited person” because he passed all drug tests while on bond. He claims this evidence demonstrates he was not an “addict” because “he definitely didn't lose the power of self-control.” We have already concluded the phrase “addicted to any controlled substance” is distinct in meaning from the phrase “unlawful user of ... any controlled substance.” The government only argues that Mr. Bennett was an unlawful user of a controlled substance. In any event, although Mr. Bennett did not fail any drug tests while on bond, we conclude the district court properly held him to be a “prohibited person.” The guidelines do not require a person to be an unlawful user of a controlled substance while on bond in order to qualify as a prohibited person. An individual's status as a prohibited person is measured “at the time the defendant committed the instant offense.” U.S.S.G. § 2K2.1(a)(4)(B). While a court may use evidence of a defendant's unlawful use of drugs while on bond to infer he was a user at the time he possessed a firearm, see Solomon, 95 F.3d at 35, such evidence is not necessary. The government need only show the defendant was an unlawful user of drugs or addicted to drugs at the time he committed the offense. See U.S.S.G. § 2K2.1(a)(4)(B); 18 U.S.C. § 922(g)(3). In other words, the government must show a defendant's drug use was contemporaneous with his firearm possession. After reviewing the evidence, discussed in detail below, we are convinced the government met its burden in this case. As mentioned previously, the government believes Mr. Bennett's extensive drug history qualifies him as an “unlawful user” of a controlled substance. Mr. Bennett does not dispute he used controlled substances. Instead, he argues the sentencing guidelines are unconstitutionally vague because the phrase “unlawful user” in 18 U.S.C. § 922(g)(3), adopted by the guidelines in U.S.S.G. § 2K2.1, cmt. n. 6, “is capable of being understood by reasonably well-informed persons in two or more different ways.” A criminal provision “must explicitly convey what it outlaws.” A provision that “either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.' ”. Where, as here, a vagueness challenge does not involve First Amendment freedoms, we examine whether the provision is impermissibly vague “in the light of the facts of the case at hand.” We conclude the sentencing guidelines are not unconstitutionally vague as applied to Mr. Bennett's conduct. A confidential informant told police Mr. Bennett was distributing methamphetamine. Upon searching Mr. Bennett's residence, the police found “a digital scale with white powder residue, [a] small baggie of suspected marijuana, numerous marijuana pipes and bongs, possible drug ledgers, assorted small containers containing white powder residue, small plastic bindles, and suspected marijuana seeds.” The police also found a small amount of marijuana on Mr. Bennett's person. Mr. Bennett admitted during an interview with police he used, purchased, and sold methamphetamine. Mr. Bennett also admitted to a probation officer he used marijuana and methamphetamine on a daily basis up until his arrest. As a result of the police investigation, Mr. Bennett pled guilty to two misdemeanor charges of possession of a controlled substance, i.e., marijuana and methamphetamine. Based on this evidence, we conclude the district court correctly found Mr. Bennett was a “prohibited person” under the guidelines. His regular and ongoing use of marijuana and methamphetamine during the same time period as his firearm possession qualifies him as a “unlawful user of ... a [ ] controlled substance” and therefore a “prohibited person.” The guidelines are not vague under the facts of this case. U.S. v. Bennett, 329 F.3d 769, 776–78 (10th Cir. 2003). A subsequent trial court decision from the District of Utah further elaborated on the standard set forth in Bennett considering rulings from the 5th and 9th Circuits as well: Mr. Grover refers this court to a decision by a three-judge panel of the Fifth Circuit in United States v. Herrera, which was subsequently vacated by an en banc panel of the court. The decision of the original panel is the only federal decision to expressly reach a definition of “unlawful user.” After analyzing the text, structure, and legislative history of § 922(g)(3), as well as the relevant case law, the court held: an ‘unlawful user’ is one who uses narcotics so frequently and in such quantities as to lose the power of self control and thereby pose a danger to the public morals, health, safety, or welfare. In other words, an ‘unlawful user’ is someone whose use of narcotics falls just short of addiction, as that term is defined by the Controlled Substances Act. Although the original Herrera court did not arrive at its conclusion by interpreting the phrase “unlawful user of” to be synonymous with “addicted to” (this was the argument of the dissenting judges on the en banc panel that subsequently vacated the decision of the three-judge panel), the end result is essentially the same. The panel did not define the meaning of use that “falls just short of addiction.” Thus, in asking this court to adopt the definition announced by the original Herrera panel, Mr. Grover is asking this court to equate the definition of “unlawful user,” as used in 18 U.S.C. § 922(g)(3), with the definition of “addict” in 21 U.S.C. § 802(1). For the reasons stated above, this court declines to equate the definition of “unlawful user,” as used in § 922(g)(3), with the definition of “addict” in 21 U.S.C. § 802(1). Furthermore, this court expresses serious doubt that any precedential weight may be accorded to the original panel decision in Herrera. Although the en banc majority did not expressly reverse the original panel's holding, it decided whether the defendant was an “unlawful user” only by asking whether “drug use [occurred] with regularity and over an extended period of time.” The majority never discussed the definition reached by the original panel, which roughly equated the definition of an “unlawful user” with that of an “addict,” requiring the additional element of loss of self-control. In sum, the phrase “unlawful user of or addicted to any controlled substance,” as used in 18 U.S.C. § 922(g)(3), may be interpreted as either joining separately definable or synonymous terms. The Tenth Circuit in Bennett clearly ruled that the phrase is written disjunctively, meaning that the phrases “unlawful user of” and “addicted to” have separate meanings, and are therefore not synonymous. This conclusion is consistent with the common, everyday meaning of the terms—a person may be a user of controlled substances without being addicted to them, and conversely, a person may be addicted to controlled substances even when no longer a user of them. Although Bennett did not expressly define the phrase “unlawful user of,” it did explain that the defendant's “regular and ongoing use of marijuana and methamphetamine during the same time period as his firearm possession qualifies him as an ‘unlawful user of ... a[ ] controlled substance’ ....” Consistent with the Ninth Circuit's decision in United States v. Purdy, Bennett impliedly defined three elements for qualification as an unlawful user of a controlled substance: (1) regular use of any controlled substance (or, in the words of Purdy, “[use of] drugs with regularity”); (2) on an ongoing basis (or, in the words of Purdy, “over an extended period of time”23); and (3) during the same time period as (or, in the words of Purdy, “contemporaneously with”) the possession of a firearm. Combining language from both Bennett and Purdy, this court holds that an unlawful user of any controlled substance, for purposes of 18 U.S.C. § 922(g)(3), is an individual who regularly and unlawfully uses any controlled substance over an extended period of time that is contemporaneous with the possession of a firearm. U.S. v. Grover, 364 F. Supp. 2d 1298, 1302–03 (D. Utah 2005). On the other hand, evidence of a single use of marijuana six hours before the arrest with a firearm was not sufficient to show that someone was a controlled substance user, as this could have been &quot;an isolated occurrence.&quot; U.S. v. Augustin, 376 F.3d 135 (3rd Cir. 2004). In general, evidence that one has a medical prescription for marijuana would tend to show that one is a &quot;controlled substance user&quot; and hence a prohibited person with respect to firearms. The only real out in this case would be the Congressional appropriations bill prohibiting the expenditure of federal funds to prosecute people who are using marijuana in a manner that is legal under state law and related U.S. Attorney statements to that effect. But, it is not at all obvious that these protections extent to prosecutions under 18 U.S.C. § 922(g)(3). The case closest to addressing the question of whether someone was prosecuted under 18 U.S.C. § 922(g)(3) for possessing a firearm while regularly using marijuana on a basis that was legal under state law, considering among other things, a Second Amendment challenge, is Wilson v. Lynch, 835 F.3d 1083 (9th Cir. 2016), certiorari denied 137 S.Ct. 1396, 197 L.Ed.2d 555. The 9th Circuit in Wilson v. Lynch held that the provision of federal Gun Control Act prohibiting sales of firearms to individuals whom sellers had reasonable cause to believe were drug users, and the accompanying regulation and administrative policy effectively criminalizing the possession of a firearm by the holder of a state marijuana registry card (in Nevada) did not violate the Second Amendment. The 9th Circuit reached this conclusion because the government had a substantial interest in preventing gun violence, and because empirical data and other evidence supported strong link between drug use and the risk of irrational or unpredictable behavior, including gun violence. Therefore, the 9th Circuit held that it was reasonable for federal regulators to assume that registry cardholder was more likely to use marijuana that an individual who did not hold such a card. In sum, it is safe to assume that someone with a medical marijuana prescription that is legal under state law is still a &quot;prohibited person&quot; pursuant to 18 U.S.C. § 922(g)(3) and is subject to severe penalties for possessing a firearm.
A basic rule of trademark law is that a trademark is protected only for use in the same industry, or in regard to the same general sort of thing. "Maxwell House" for example, is the name of a brand of Coffee, and no doubt a trademark. If A business used it as the name of a brand of mobile home, it would not infringe the mark of the coffee brand. "Java" as a term for coffee , has been slang for any and all coffee at least as far back as WWII. I doubt that it is a currently active trademark in any case. It is, however, the name of a currently active programming language. Calling a new computer technology "Java" would probably infringe that (although the makers of javascript, a quite different computer language, seem to have gotten away with it). But it is hard to see how a realty company would so infringe. Of course there might be details which would cause this name to be infringing in fact, that I have no way of knowing. You could play safe with Sumatra Realty instead. Evin a quickly dismissed suit for trademark infringement could cost a startup time and money that might be a fatal handicap.
In the US, it depends on why you are doing this, and how you go about performing the operation. There are approved devices and procedures, and there is the other stuff. In an emergency that is life-threatening or threatens severe debilitation, it is permitted for a physician to try an extreme measure – if the state has a "Right to Try" law. Otherwise, a review and official approval by the relevant IRB is required. The devices are regulated by the FDA, but the FDA does not regulate the practice of medicine, so the feds don't have a say in whether a procedure is allowed. Nevertheless, use of unapproved devices can be taken to be evidence of failing to meet the required standard of care, in the case of a malpractice suit or punitive action by the state regulatory board. There is no specific law prohibiting removing lots of organs and replacing them with prostheses, though arguable what happened was that the brain was removed (it's not that a replacement shell was built around the person). Ordinarily, intentionally "killing" a person is illegal (except in case of sanctioned execution or self-defense). There is zero case law that would tell us whether removing a brain from a body "kills" the person. Most likely, there would be a prosecution for unlawfully causing a death, and either the legislature would tune up the law w.r.t. the definition of "causing death", or the courts would do so.
The constitutional basis for all US patents is Article I, Section 8, Clause 8, of the US Constitution, which grants Congress the power: To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries. See &quot;Intellectual Property Clause&quot; from Cornell's WEX Legal Information Institute. US Patent law requires an applicant to include with a patent application &quot;disclosures&quot;. As the page &quot;Patent Disclosure: Everything You Need to Know&quot; from UpCounsel states: [A] patent disclosure is a public claim of data about an invention. In general, it is any part of the patenting process in which data regarding an invention is disclosed. A good disclosure tells someone else how to create the product. [Emphasis added] The U.S. Constitution gives Congress the right to offer exclusive rights to people for their inventions for set periods of time. This is only if and when the inventor agrees to adequately disclose the invention in writing. [Emphasis added] A formal patent disclosure ... stipulates a set of claims regarding the invention, as well as other data that reveals the unique nature of the product. It should be expressed in writing with the United States Patent and Trademark Office (USPTO) as part of the patent application. What Is Included in a Patent Disclosure? The Specification. A primary disclosure or &quot;specification&quot; is a main document in a patent application. It describes the ways in which the invention is innovative compared to similar inventions and explains the scope of monopoly the applicant believes he or she has to the invention. The specification describes the item and the way to make and to use it, in clear and exact terms. Someone in the field must be able to reasonably create it with these instructions. Further, the specification notes the patent application filing date on which inventor can the rely. It also offers evidence that the invention belongs to the person in question. The Enablement. This explains how to create the object and how someone in the field can do so. The instructions cannot be vague or unclear, but must be exact and detailed. When the patent expires, the enablement should still be usable. This section should include any figures or drawings, with explanations. Again, you will want to show how your invention is special. So, you might want to include many details and different variations of the invention. Later, many of these variations may be deleted from the document as unnecessary. This section may be numerous pages long. Best Mode Requirement. The path revealed must be the best way of creating the item within the author's awareness at the time of filing. Therefore, it may include specific or unique techniques. There should be no concealment. A poor-quality disclosure can risk the appearance of concealment. [Italics added] Claims. This area tells the reader the exclusive rights the patent offers to the inventor.... The official page &quot;Duty of Disclosure, Candor, and Good Faith&quot; from the USPTO cites 37 CFR 1.56 on the duty to disclose information material to patentability. This regulation provides, in the relevant part: A patent by its very nature is affected with a public interest. The public interest is best served, and the most effective patent examination occurs when, at the time an application is being examined, the Office is aware of and evaluates the teachings of all information material to patentability. Each individual associated with the filing and prosecution of a patent application has a duty of candor and good faith in dealing with the Office, which includes a duty to disclose to the Office all information known to that individual to be material to patentability as defined in this section. The duty to disclose information exists with respect to each pending claim ... These disclosures include the state of prior art, as kown to the applicant and the applicant's associates. The page &quot;BEST MODE: Noncompliance with the Duty of Disclosure is Not an Option&quot; states: When you apply for a patent in the United States, you have a legal duty to disclose prior art that could be used to reject your application — in essence, information that may be used against you by the examiner of your application. While persons accused of a crime have a right to remain silent, so as to avoid self-incrimination, inventors applying for a patent have no such right. To the contrary, an inventor’s failure to comply with the duty of disclosure risks any resulting patent being unenforceable. The page &quot;THE PATENT BARGAIN AND THE CURSE OF RETROACTIVITY&quot; states: One of the requirements for the USPTO to issue a patent is that the applicant’s claimed invention be fully disclosed in the application and published in the patent. This is sometimes referred to as the “patent bargain.” This is at the opposite end of the spectrum from trade secrets law, under which a company can sue for © misappropriation of a trade secret but only if it takes reasonable measures to maintain confidentiality of the trade secret. ... Under patent law an inventor must fully disclose his or her invention before enforceable patent rights come into being. This disclosure requirement is sometimes termed the “patent bargain,” under which an inventor gains the right to exclude others from practicing a patented invention in exchange for disclosing the invention so that it may be known by the public and indeed practiced after the patent term has expired. ... [Emphasis added] In general a patent application is not just a description of a specific industrial process. It includes the research by which that process was discovered or developed. That research can benefit others in the same field, and so &quot;promote the progress of science and the useful arts&quot; in helping others to do further research and make further discoveries, which can often be done without infringing the patent itself. Of course, once patent protection expires, anyone may use the patent, and the final patent documents are supposed to include sufficient information that &quot;one skilled in the art&quot; will be able to build the invention or use the process that had been patented. This is in contrast to the situation which would exist had the inventor retained the discovery as a trade secret. In that case no one would have been able to use the patented discovery until some other person independently discovered and disclosed it.