Patents In The Psychedelics Space: Good Or Bad? It's Complicated, Here's What The Experts Say

Patents are the golden eggs of the booming psychedelic space. In an industry that revolves around substances that are found in nature (such as psilocybin, ibogaine or DMT) or compounds whose patents have already expired (LSD and MDMA), new patents are the primary way in which companies can guarantee their place in the market and provide a sense of security to investors. Receiving a patent can be a sign that the company has a strong development pipeline or, at the very least, clear plans for the future.

However, it’s not always easy to understand the process by which a company is granted a patent or the implications that said patents might have in the long run, and less so in a new market such as this one.

What purpose do patents serve?

Patents are the exclusive rights that an individual or organization has over an invention. They are the main way in which companies protect their intellectual property: in the case of psychedelics-focused companies, patents help guarantee the security of their proprietary molecules and processes.

Such is the importance of patents for the emerging industry that Psilocybin Alpha has developed patent trackers for Psilocybin, MDMA, LSD and DMT.

Players in the psychedelics space are constantly filing patent applications with the goal of building a strong IP portfolio, such as Filament Health FLHLF, which recently acquired its fourth patent. For twenty years after the patent is filed, the owner can exclude everyone else from producing, using or selling the product. However, there is a wide array of tricks by which someone could maliciously extend the duration of a patent.

One of the most pressing issues in the industry is precisely the novelty of the patents. As a recent Harvard Law essay puts it, personnel at the U. S. Patent and Trademark Office lacks expertise in the field of psychedelic research, making “questionable the quality of its evaluation of psychedelic patents.”

For example, the article explains that “product hopping,” making minimal modifications to the patented product that serve no improved function, is a fairly regular process by which patents can be extended.

In the psychedelics space, companies may issue a patent application over different crystalline formations of a substance. The authors of the essay write that “with aggressive marketing, copycat therapies can permeate a market despite being inferior to the more advanced therapies that could be developed if product hopping and other abuses of the patent system were disincentivized.”

The Fight Against Patents

Not everyone has the same idea on how patents should be used in the psychedelics space. Lawyer Nicole Lowell asked whether the direction patents in the psychedelics space are heading is a healthy one, or if it will go the same way as with marijuana, that is with “consolidation of the market, perverse incentives, and [is] slowly driving the lovers and believers out of the game only to be replaced by traditional business fundamentals of 'scale', 'ROI' and ‘exit strategies.’”

Writer Alice Swift, instead, asked if psychedelic patents are even ethical since they could promote monopolization, higher costs and reduced access to substances that otherwise could be found in nature.

Most concerns arise from one of Compass Pathways CMPS most infamous patents, WO2020212952A1. The document garnered attention because it wasn’t limited to psilocybin application as a form of treating mental health disorders, but also seemed to cover other basic elements of therapy: muted colors, holding hands and soft sounds.

Another of Compass’ patents that was considered controversial is one for Form A hydrate psilocybin, used in the company’s COMP360 compound. It is one of the crystalline variations of psilocybin and caused a sensation since some considered controversial the patenting of a different crystalline form of the substance. In fact, the non-profit Freedom to Operate has challenged Compass’ patent, claiming that that particular form of psilocybin had been used as far as 1963.

Most recently, psychedelic patent specialist Graham Pechenik shared his apprehension over a new application that, if approved, could bar cancer patients from accessing psilocybin treatment. According to the lawyer, the patent claims “many types of psychotherapy treatments” and “many types of cancer.”

The concern comes after a recent blockade by the DEA of cancer patients attempting to access psychedelic treatment under the Right to Try Act.

Last week, activists were arrested protesting the DEA’s decision to block cancer patients from accessing psilocybin therapy.
What if patents blocked cancer patients from using psilocybin too?
Today—new patent application published covering psilocybin therapy for cancer patients
1/4 https://t.co/48CvKfLn4t pic.twitter.com/Yh9QvOYShA

— Graham Pechenik (@calyxlaw) May 19, 2022

Making it open source

Even though patents make one of the main ways in which companies monetize their efforts, some key players in the industry are focusing on developing ways of combating the privatization of psychedelics.

Last year, Shayla Love reported on Vice that Rick Doblin, founder and executive director of the Multidisciplinary Association for Psychedelic Studies (MAPS), was spearheading an “anti-patent strategy for the uses of MDMA.” MAPS was one of the organizations that initiated the psychedelics renaissance and its commitment to challenging patents that would privatize otherwise public information has made a lot of noise in the sector.

Still a long way to go

The psychedelics space is still a nascent battleground, with new companies joining it fairly regularly and with still many new changes to come. Patents are and will continue to be some of the most important tools companies will count on, but traditional psychedelics might be the most problematic. Instead, second-generation psychedelics or lesser-known psychoactive substances could mean greener pastures for researchers and developers, as well as more profitable investments.

Photo: Courtesy of Christopher Ott on Unsplash