Ever since Compass Pathways (Nasdaq: CMPS) first entered the public eye, there has been a debate raging on whether their version of psilocybin, Comp 360, is deserving of a patent. The crux of the debate came down to whether Comp 360 is a unique compound that has never been created before, or whether the synthetic psilocybin had previously existed in the public domain.
Now it seems —at least in the eyes of the law— this debate has been settled, and Compass Pathways has emerged victorious.
Previously, Compass had been granted two patents covering Comp 360 —also known as Polymorph A— but these were being challenged by a group called Freedom to Operate. Essentially, Freedom to Operate petitioned the Patent Trial and Appeal Board (PTAB), claiming that Comp 360 was not a novel invention, and thus should have its patents revoked. If the Patent Trial and Appeal Board, having seen the evidence provided by Freedom to Operate, had agreed that there was at least some validity to the evidence, the case would have gone to trial.
However, that is not what happened. On June 23rd, 2022, the Patent Trial and Appeal Board announced that it agreed with Compass’ interpretation of its patents, meaning it would not go to trial. There is no right to appeal this decision, making it final.
A large part of the rationale behind the Board’s decision, is that Comp 360 has a unique chemical shape, as determined by an x-ray powder diffraction (XRPD) diffractogram.
Despite this victory, the Compass Pathways psilocybin patent saga isn’t necessarily over. Speaking with Vice’s Shayla Love, Jack Griem, a lawyer for Freedom to Operate, argued that since the Patent Trial and Appeal Board defined Comp 360 so narrowly, it means Compass only owns that exact shape of psilocybin. He said, “Compass is now on notice that its ‘Polymorph A’ patents cannot be asserted recklessly against any commercial-scale manufacturer or distributor of a psilocybin-based medicine… Manufacturers of psilocybin now have a clear pathway for making sure that psilocybin they manufacture or sell is not at risk of infringing Compass’s ‘Polymorph A’ patents.”
Echoing this argument, Carey Turnbull, founder and director of Freedom to Operate, told Shayla Love that “the PTAB’s 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.”
Despite this optimism, other psychedelic patent experts drew a less optimistic conclusion. For example, Graham Pechenik, a patent attorney at Calyx Law and Editor-at-Large for Psychedelic Alpha, told Love if he was the petitioner, he “would be very disappointed in these decisions. These are both complete wins for Compass, on every issue raised.” He continued, saying that he didn’t believe that Compass’ position had been weakened, and that avoiding infringing upon Compass’ patents was no easier now than it had been before.
Taking a step back, the big question now is how patent courts will interpret this decision going forward, in future cases of patent infringement that Compass may bring against its rivals. If patent courts interpret Compass’ patents very narrowly, as Griem and Turnbull argue, it should not hamper the competition from making synthetic psilocybin that is structurally similar to, though not exactly the same as, Comp 360. If this is how the future plays out, and if Compass’ strategy was in fact to limit competition with their patents —as many allege— then this may be a case of winning the battle, but losing the war.
On the other hand, if future patent tribunals do not limit themselves to such a narrow interpretation of Compass’ intellectual property, these patents could stifle competition in the nascent psilocybin medicine sector. Only time will tell.
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