We do a lot of different kinds of writing here, crazy philosophical ideas, movie reviews, practical advice — but we haven’t yet tackled the legal aspects of Psychedelic Medicine. No, not the typical schedule 1 rant you were probably expecting, we actually have covered that already. This is an article on how patent law is used to both protect our access to this medicine, and also to completely block it. We’re no longer in the free love times of the early first wave, no friends now capitalism has come for our psychedelics too and they will use patents to do it.
You’ve probably felt an increase in the mention of psychedelics in the media, maybe you also read a recent article from Wired or Vice. We also feel this, we see articles on psychedelics posted places we never expected to, or even being talked about on major cable news networks. In many ways this visibility in popular media matches what happened during the first wave, which started with that Life Magazine article from 1957.
A little history, the first wave
We don’t feel like it is a big stretch to say we are firmly within the 2nd psychedelic wave. Just like the first it is being fueled and documented by the popular media. Blogs like ours are another effect, we only felt confident creating this type of content now as we feel the world is becoming ready for it again. So what happened the first time, why do we even need a 2nd wave at all?
So now, less than five years later, you can go up on a steep hill in Las Vegas and look West, and with the right kind of eyes you can almost see the high water mark — that place where the wave finally broke, and rolled back.Hunter S. Thompson, Fear and Loathing in Las Vegas, 1971
The first wave broke as it challenged the established powers in ways they couldn’t capitalize upon. At that time we were still interested in fighting “moral” wars against communism and needed to recruit soldiers to go and die in Vietnam. As we’ve written about before, psychedelic’s provide the primary religious experience on demand. This takes away the mechanism of control that our society uses, and back in the 70s we didn’t have anything to replace it. The government felt threatened so they shut it all down.
During the first wave two important things happened in the patent space. First, LSD-25 was patented in the US by the Sandoz corporation, specifically the method of production using ergot. Patent 3,219,545 was later allowed to expire. When patents expire the invention they protected enters the public domain. Companies like Disney keep their inventions protected for generations by refiling or cross-filing patents to cover the same ideas. Sandoz didn’t do this, and by not doing it gave us an interesting legal gift.
As the mechanism to produce LSD-25 described in patent 3,219,545 can no longer be protected by patents in the US — it no longer makes financial sense for a corporation to pursue a medicine derived this way. If they produce such a medicine, or even a process involving it, any competitor could produce a copy and there is no way to stop them. The DEA can keep enforcing their out of date notions of scheduling — but from a patent law point of view, LSD-25 is free, as in beer.
This concept, “Free as in Beer”, can also be expressed as “Gratis” vs “Libre”. When a friend gives you a beer, they expect you to enjoy it, that’s the only expectation. We call this idea “Libre” in the sense that the beer was truly free, nothing was expected in return. If instead you receive a free sample of beer at a bar, that would be “Gratis” as you would be expected to later buy a full glass. The sample comes with the expectation that will buy something or leave.
By allowing this method for producing LSD-25 to expire Sandoz freed this chemical. What about the other major psychedelic medicine, psilocybin? Well this the 2nd important patent from the first wave, this one is not expired, and has a rich and interesting history to it. Let’s start by looking at the current grand-daddy synthesis patent, 2020/019916. This is similar to the Sandoz patent in nature, it’s describing a way to synthesize the chemical from its fungal origins.
Now this patent is not expired, this means that anyone who wants to synthesize psilocybin at an industrial scale either needs to license this method from Compass or figure out a way to grow the raw fungus at industrial scales. Neither of those options are attractive financially and we know that as other companies have instead chosen to attack this patent. When it is cheaper to hire lawyers to attack a patent then to find an alternate method — you know that patent is protecting something important.
As of now the patent stands and Compass controls industrial production of psilocybin. This isn’t a terrible circumstance, they haven’t chosen to exploit this patent yet against researchers. Even if they did, researchers can plausibly find supply from other means as they don’t need industrial scale. This does mean that only Compass could profit from a publicly available psilocybin derived medicine. This brings us back to today, the Wired article, and thinking about how this 2nd wave might play out.
the 2nd psychedelic wave
If we really are in the middle of the 2nd wave, how might this all play out? Last time we had two active participants: Hippies and The Government, and then we had the silent majority standing by. The Government won by whipping the silent majority into a moral panic, ultimately leading to psychedelics becoming illegal substances.
This time we have a 3rd active player, Capitalism, here represented by the Pharma industry. Corporations have significantly more political power now than they did back in the 70s. Rather than hoping a politician doesn’t tell the people not to like their brands — today brands hold this power instead. These companies have realized that psychedelics represent a new frontier for medicine. There is a lot of money to be made here and that will change how wave 2 plays out in major ways.
In a lot of ways we’ve seen this already in the path that Marijuana has taken to legalization. By sitting in the same rooms as the politicians writing the laws, Pharma companies have ensured that while pot is legal — it is very difficult to actually produce on your own. Only large scale industrial operations can pass the inspection and licensing requirements. You can buy grams and grams of highly processed oil — yet grow only a small number of plants yourself.
If you stare long enough at the laws being written around Marijuana, it is not hard to see capitalism’s finger on the scale. While regular people came out ok in the end, the laws do allow for you to grow the plant yourself at home. Corporations are making sure they always control the means of production.
The Possible future ahead
That only happened as the industry was caught off guard. Activism moved the government too quickly and industry had to play catch up. The psychedelic wave is not having that problem. All the big Pharma companies have teams working on this; legal teams as we see in the frequent patent challenges, and also research teams as described in the wired article. Behind the scenes the same lobby groups that had to be built for the Marijuana efforts are now being used to write new laws around psychedelics.
Things will be different this time in two major ways. First, industry is going to help break the moral panic. Marketing and PR teams will sell psychedelics into the silent majority, the hippies will not be filling that role this time. The other major difference is that the raw materials, the fungus these chemicals are derived from, will never be legalized.
That 2nd point is probably something you haven’t thought about yet. But just think it through. If you were a Pharma company trying to produce a psychedelic pill that you can sell to everyone — do you want to compete with a mushroom that grows in parking lots? No, so instead you make sure that only your patented analogue is deemed “safe” by the government. The population will only be given these watered down patentable products. The primary religious experience will be kept from us, but now using the power of capitalism — not religious moral panic.
In the end Patents will be the thing that gives us this 2nd wave, but they will also be the thing that stops most from truly experiencing it. At least that is a possible future if activism can’t turn things around.
What can we do?
If you, like us, believe in the power of these experiences and don’t want to see the corporate world take them away for profits — what can you do? Well first donate to MAPS. Every dollar helps and only a large organization like this will ever have a hope of getting a seat at the table when these laws are written. It was activism that preserved our right to grow Marijuana plants and only activism will fight for our right to grow cubensis mushrooms. Without MAPS we can expect that the raw experience will be locked behind a legal wall for eternity.
When the moral panic starts up again in a few years, resist it. We’re going to see the same regressive language used as we did in the 70s to try and turn the silent majority against psychedelics. Specifically though this message will be against the raw psychedelics. If you see a message that demonizes raw psychedelics while championing some artificial patented form — it’s probably this type of thing.
Resist it by pointing back to articles like the one in Life Magazine from 1957, that couple didn’t need refined psychedelic derivatives. They just ate some mushrooms and had a great time. We should all work to keep the simplicity, and the fun, and don’t let the push for legalization take that away from us.
The article is done, but if you want to learn more we wanted to share this excellent resource:
This is a site that offers a few interesting areas to explore:
Data Here they have various trackers on research, patents, politics and other things you might be interested in reading about. If nothing else it shows you the breadth of what is actually out there, this isn’t some underground hippie cult anymore.
Jobs Another strong marker of how mainstream this all is right now, here is a psychedelic job board! You can go and get a legit paid job at any number of psychedelic related companies, including Compass the holder of the psilocybin patent discussed above.