5 Questions for Graham Pechenik
As new biotech and pharmaceutical companies develop and test their own formulations of psychedelic drugs for therapeutic use, the race for psychedelic patents is heating up — and it could radically shift who holds power in the psychedelic space. But what exactly is happening in the world of psychedelics and intellectual property is still largely secret; US patent applications are sealed for 18 months after submission. Graham Pechenik, a patent attorney and founder of cannabis and psychedelics intellectual property firm Calyx Law, has been keeping a close eye on every patent development, and thinks there could be hundreds of patent applications in the queue.
Pechenik manages patent trackers at Psilocybin Alpha, a company that offers analyses of the psychedelic market. According to their records, the US Patent Office granted six psilocybin-related patents in 2021, and at least another 22 new psilocybin-related patent applications were filed in the course of this year. Pechenik and his team also track patents related to MDMA and DMT (just one DMT patent was granted this year). In 2022, Pechenik plans to launch new patent trackers, including ones for LSD, ibogaine, and ketamine. The Microdose talked with him about how these psychedelic patents are granted, and how they could shape the future of psychedelics.
Compounds like psilocybin occur in nature, but companies are seeking patents on derivatives and composites of psilocybin. What makes a drug patentable?
The basic requirements for every patent are that the invention has to be novel, which means it can’t have been described before anywhere else, and it also has to be non-obvious. If you’re looking at the landscape of the entire state of the art, the intention can’t have been obvious. In some jurisdictions, they call it an “inventive step”: there has to be something inventive.
How are drug companies winning these patents — how are they tweaking psilocybin to make it novel, non-obvious, and inventive?
One well known strategy is COMPASS’s. They have patents on a psilocybin polymorph, the form of psilocybin molecules in three dimensions. Imagine table salt or sugar; they’re not one molecule, they’re crystals. Each crystal will have a particular three-dimensional form: it’s the way the individual molecules within it are stacked together. That structure can be patentable, because when psilocybin exists in a mushroom, it’s not in purified crystalline form; it’s dispersed through the tissue of the mushroom.
Also, patents don't have to cover just the drug product itself. They can also cover the way that it's administered, dosing regimens, all aspects of how pharmaceuticals are prepared, sold, and delivered. Psychedelic drugs aren't just going to be prescribed over the counter, they're going to be prescribed as part of therapy, which involves digital tools and other things like there's a lot that's just around the compound itself. So you may have opportunities for companies to look at it and say, ‘Well, that's not obvious in the eyes of patent law’ — and those are things that you should be able to get patent protection action for.
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Since patent applications are sealed for 18 months after they’re submitted, it’ll be 2022 or even 2023 until we have a fuller picture of what patent applications were filed in 2021. What do you expect to see in coming months as that information is unveiled?
There's going to be an enormous amount of applications on different psychedelics and methods having to do with the delivery of psychedelics by all the companies you can think of, and probably a lot of companies that aren't on anyone's radar yet. These companies are all interested in filing patents to protect what they're doing and to make clear to others that they're trying to protect their work. And then there are probably also a number of companies who are thinking ahead to the value of having patent rights — they could potentially be covering work that others are doing as a way to licensing their patents or, you know, using them as leverage, either in litigation or some sort of acquisition.
As companies are granted more patents, what kind of effects could that have on the state of research and access to these compounds?
There's a direct impact because of the secrecy of patents not being public for 18 months; I think it makes it harder for information to flow between researchers and companies, and makes the space lose a little bit of openness and vibrancy. Even having applications filed can potentially dissuade people from doing work within the space defined by some of those potential patents. For instance, if a company says we filed a patent that covers the use of psilocybin for anorexia, and you’re a researcher interested in looking at how psilocybin can be used to treat anorexia, you may stop that research. The thought that your work could potentially be stopped down the line because you might be infringing on someone else’s patent — that could have a chilling effect.
There’s also a bias towards creating companies that are able to get these patent rights, and therefore a bias towards money flowing into for-profit entities that have the ability to file patents. That’s a way of accentuating inequalities of capital, wealth, and resources. A patent, by their very design, is intended to allow the entire value of the invention to flow back to the owner of the patent — and that person can also set the market price for it, so they can really extract as much value as possible. It can have this resource- and wealth-concentrating effect.
Generally, a patent is good for about 20 years. How is the state of the psychedelic patent race now going to affect the future?
That’s the length of a generation, and in a space like this, that could certainly be enough to have enormous impact. I don’t have a crystal ball, and it’s hard to untangle what I hope to have happen; I’m wondering how much I should answer from optimism. I think the space is dynamic enough and complex enough that there will be no real easy way to get total domination over the different types of psychedelics. If you ask me in a year or two years, it’ll be a lot easier to predict even though I’ll still be predicting 20 years ahead. Like now, there are obviously no psychedelics that are available at all for sale to consumers or to patients — maybe ketamine, depending on how you define it. I think that the regulatory, legal and funding landscape will have as much or more influence than patents will on how the psychedelic space becomes integrated into mainstream culture.
This interview has been edited and condensed for clarity and length.