On January 1st, 2021 the team of Konstantin Gerber, Inti García Flores, Angela Christina Ruiz, Ismail Ali, Natalie Lyla Ginsberg, and Eduardo E. Schenberg (herein “Schenberg” or “the authors”) published and article title “Ethical Concerns about Psilocybin Intellectual Property” in ACS Pharmacology & Translational Science. To summarize, the authors assert that it is unethical to make modern pharmaceuticals inspired by old natural medicinals without somehow compensating the indigenous people who have long used natural medicinals. The authors cited Psilocybin Alpha’s “Patent Tracker” to illustrate the recent trend in patenting psychedelic innovation. This conclusion is based on a general misunderstanding between (a) developing and patenting new forms of psychedelic compounds and (b) removing existing forms of those compounds from the public domain.
New Technology does not Remove Old Technology from the Public Domain.
Schenberg notes that naturally occurring “traditional” or “indigenous” psychedelic medicines have existed for millennia. Yes. Those medicines are in the public domain (aka the “prior art”). These can not be patented. The authors specifically point out that the Mazatec community is one indigenous community that has used naturally occurring psychedelic medicines for millennia. No new development or patent attorneys can take those medicines away from the Mazatecs or anyone else. Only new technology can be patented.
Developing new forms of old natural medicinals does not take anything away from the indigenous people. Researching and patenting psilocybin (see Compass) and developing pharmaceutical formulations (e.g., Compass Pathways’ crystalline form of psilocybin, COMP360) does not affect existing practices of using magic mushrooms. Rather, the patent system rewards the inventors of new technology with a limited monopoly on that technology as an incentive to bring it into existence for future generations. In the case of Compass, they developed a new psilocybin formulation (with a new, unnatural crystalline form) that is suitable for modern day medicine. The standard for patenting “new” technology is actually lower than this. For example, Paul Stamets has filed numerous patent applications on new combinations of mushroom extracts, which simply combine mushroom extracts in a new way. Arguably, Mr. Stamets is entitled to a patent on these new combinations (even though the compounds previously existed) because the new combination provides a new beneficial result, e.g., enhanced neuroregenerative properties.
New Drug Development can be Patented Despite Older Technology.
Unlike old medicines, newly developed drugs (including new combinations of natural substances, see, e.g., Paul Stamets above) can be patented. Schenberg contrast thousands of years of natural medicinals to the recent trend to make western medicines based on them: “Researching psilocybin is configuring a bioprospecting project resulting in the pharmaceutical industry pursuing innovation through intellectual property rights….” Here, note that the new technology arises from researching, “bioprospecting,” and “pursuing innovation.” This is not taking something out of the public domain. Rather, the research efforts add something new– arguably something valuable. It is that innovation that gives rise to intellectual property rights. Also, no one “pursues innovation through intellectual property rights.” Rather, intellectual property rights are awarded to those who successfully innovate.
The authors suggest that that developing new pharmaceutical products inspired by natural medicinals is unethical because the pharmaceutical companies have “no plans for reciprocity with or compensation for the indigenous communities who have protected these traditional mushroom practices for millennia.” Here, note that the indigenous communities aren’t losing anything. They are free to continue enjoying the benefits of their traditional practices. No one is stealing anything from them. The traditional medicines remain in the public domain. And the present innovators (like Compass) enjoy the fruits of their new technology. New developments of old medicinals can be patented.
As the authors point out, “… the Mazatec indigenous communities who stewarded these traditional medicines for millenia are not party to any of these patents, despite a number of international treaties asserting indigenous rights to their intangible cultural heritage.” Correct. The Mazatec indigenous communities did not invent the new technology. So, they are appropriately not party to the patents covering the new technology. Likewise, today’s innovators (like Compass Pathways) are have no claims to the “intangible cultural heritage” of the Mazatec people, e.g., traditional psilocybin medicines that have been used for millenia. Only new technology can be patented.
Lastly, the authors posit that “When the intellectual “property” derived from naturally occurring compounds is the prior art of indigenous people, we are obliged to explore the ethics of shareholders reaping the financial benefit from these compounds. Reflecting on these ethical dilemmas may offer frameworks to understand and solve for the ongoing harm of extractive economics, and perhaps even point the way toward reciprocal and reparative arrangements with indigenous stewards of medicines and molecules around the world.” Here, the authors seem to recognize that today’s new technology and new intellectual property is actually different; and they raise the question as to whether practitioners of earlier technologies should be compensated for newer versions. This is an interesting point for reflection.
- Should Telsa compensate Ford for its electric car sales simply because Ford made cars before Tesla?
- Should Apple compensate Edison for iPhone sales?
- There are obviously lots of other comparisons
Arguably the existing patent system strikes a good balance in encouraging innovators to disclose new technology by offering them a limited monopoly. However, requiring today’s innovators to compensate others for “traditional” practices that have existed for millenia could create disincentives for innovation. In the case of the Mazatecs, the authors effectively suggest affording them intellectual property rights that extend for thousands of years– instead of existing system while limits the patent rights to about 20 years.