Psychedelic Patent News – Weekly Extractions: June 24, 2022

To wrap up a week filled with a lot of noteworthy moments, we should take a deeper look at patents.

As a reminder, if you’re looking for an easier way to keep track of the public psychedelics market, look no further than our psychedelic stock index. It’s a great way to keep all of the needed data in one place.

For those that don’t know, “candy flipping” is a term used to describe the mixing of entactogens/empathogens with a psychedelic compound. This week, MindMed ($MMED) was granted an exclusive patent to make and distribute a single oral dosage form of such a mixture. This news falls into the category of psychedelic drug companies doing whatever they can to protect potentially profitable opportunities to construct concoctions that may be useful in the future.

This particular development may not hold much weight, though. This patent is already being challenged. We’ll have to see how it holds up over time.

This week, the judge denied challenges to Compass Pathways’ ($CMPS) patents. This is great news for Compass, and Compass investors. Freedom to Operate, a non-profit seeking to advance science and education, specifically research, in the public interest and for the public benefit filed what are called petitions for post-grant review (PGR) against two patents. The challenges argued that according to research conducted by Freedom to Operate and published in the journal Acta Crystallographica Section C, Compass’ synthetic psilocybin wasn’t actually novel, and therefore, should not be protectable with a patent. 

Why did the judge make this decision? The Patent Trial and Appeal Board (PTAB) wrote that

Compass’ form of psilocybin, called a polymorph, has a unique shape. An x-ray powder diffraction (XRPD) diffractogram was used to confirm the shape. The PTAB also added that the research Freedom to Operate submitted did not align with Compass’ exact measurements of its synthetic psilocybin.

After the denial, Freedom To Operate issued a formal response stating its intention to appeal the decision. The press release is below.

Greenwich, Connecticut, June 24, 2022 – The non-profit Freedom to Operate (FTO) today issued the following statement regarding the U.S. Patent Trial and Appeal Board’s (PTAB) response to its petition for Post Grant Review of Compass Pathways’s Patents No. 10,947,257 and 10,954,259 directed to compositions and oral dosage forms containing its “Polymorph A” of psilocybin.   

“While we disagree with the decision to disallow our petitions for Post Grant Review, we are confident that the PTAB’s extremely narrow interpretation of Compass’s patent claims will provide generic manufacturers of psilocybin with wide latitude to produce and commercialize psilocybin without risk of violating the Compass patents”, said Carey Turnbull, founder and director of Freedom to Operate. 

In its decisions, the PTAB construed Compass’s “Polymorph A” claims narrowly, holding that they only cover psilocybin that has all of the x-ray powder diffraction (XRPD) peaks exactly as claimed.  Most patent owners in cases involving claims with XRPD peaks try to give their claims some range outside the exact peaks stated in their claims, because often a product that the patent owner wants to allege infringes doesn’t have those exact peaks.  As a result of the Board’s decision, Compass can’t reasonably take that position.  Instead, the PTAB has now given manufacturers of psilocybin a clear pathway for making sure that the psilocybin they manufacture or sell is not at risk of infringing Compass’s “Polymorph A” patents. 

FTO is a non-profit founded to advance science and education, specifically to support and facilitate scientific research, in the public interest and for the public benefit. In furtherance of its mission, FTO has filed three petitions for Post-Grant Review before the Patent Trial and Appeal Board of the U.S. Patent and Trademark Office seeking review of patents issued to Compass Pathways for certain medical uses of a particular polymorph of psilocybin, a well-known naturally occurring substance.  FTO has challenged these patents that may have, if left uncontested, had the effect of chilling, and potentially preventing other individuals and organizations from engaging in research and innovation in the public interest relating to known medical uses of psilocybin, such as the treatment of depression.  FTO will continue to challenge bad patents and, where appropriate, will support scientific research that contributes to the emergence of psychedelic science and the psychedelic renaissance.

About Freedom to Operate

Founded by Carey Turnbull in 2020, Freedom to Operate is a registered Section 501(c)(3) non-profit organization dedicated to advancing science and education, specifically research, in the public interest and for the public benefit.  

“Freedom to operate” is a term of art in the field of intellectual property law, and refers to the ability to develop, manufacture, and market products without legal liabilities to third parties who claim intellectual property rights in those products. There is an important public policy interest in invalidating bad patents and promoting free competition that does not infringe on validly granted patents and other intellectual property rights. Issued patents are presumed valid and so operate to discourage investment by others into the same or similar subject matter. The public is benefited when potentially incorrectly issued patents are challenged or invalidated.

For more information, please visit www.freedomtooperate.org 

Contact: Christopher Koddermann 
Tel.: +41 (79) 434 25 78
E-Mail: chris@nyprg.org

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