- Co-Creating a Psychedelic Commons: A Commoner’s Guide - February 14, 2022
- Co-Creating a Psychedelic Commons: A Commoner’s Guide - February 14, 2022
As the psychedelics space continues its faster-than-light expansion, controversies have exploded over the types of patents being filed and the roles they may play (e.g., Gerber et al., 2021; Leite, 2021; Love, 2021). Are patents fundamentally at odds with a psychedelic ethos, or can they find a healthy role in the ecosystem?
we have the opportunity to reimagine our relationship with patents—and choose to use them as tools to facilitate and support ethical ways of doing business
Rick Doblin explains that “psychedelics are tools”: “They’re not good or bad in and of themselves. It’s how they are used. It’s the relationship you have with them” (Gillespie, 2020). The same can be said of patents. Patents can be tools of profit maximization, resource extraction, and bitter competition. Or, they can be tools of outcome optimization, resource allocation, and careful cooperation. While generally wielded as the former, we have the opportunity to reimagine our relationship with patents—and choose to use them as tools to facilitate and support ethical ways of doing business. Our choice will shape how the psychedelics ecosystem develops, with potentially profound economic, social, and cultural implications.
According to the U.S. Supreme Court, patents are “the creation of society—at odds with the inherent free nature of disclosed ideas,” but provided to “inventions and discoveries which further[] human knowledge” and “justif[y] the special inducement of a limited private monopoly” (Graham v. John Deere, 1966, p. 9). Property rights like patents were used as early as 500 BCE, where, in the ancient Greek city of Sybaris, creators of “any peculiar and excellent” culinary dish or “any new refinement in luxury” were entitled to all the profit for a year, “in order that others might be induced to labor at excelling in such pursuits” (Atheneaus o Naucratis & Yonge, 1854, p. 835). The same objective undergirds patents today. To “promote the progress of science and the useful arts” (U.S. Const. Art. I, § 8), the first U.S. patent laws were enacted in 1790, shortly after George Washington used his first State of the Union address to urge for protection of “new and useful inventions” to give “effectual encouragement” to “the exertions of skill and genius in producing them” (Washington, 1790).
But how does the government determine which “inventions and discoveries” are worthy of a patent? How does one—as Thomas Jefferson, the first U.S. patent examiner, struggled to do himself—“draw… a line between the things which are worth to the public the embarrassment of an exclusive patent, and those which are not” (as quoted in Graham,1966, pp. 9–10)?
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The question of what should be entitled to a patent, and what should not has always caused trouble. In 1883, calling an inappropriately granted patent “unjust in principle and injurious in its consequences,” the Supreme Court explained:
Indiscriminate creation of exclusive privileges tends rather to obstruct than to stimulate invention. It creates a class of speculative schemers who make it their business to watch the advancing wave of improvement, and gather its foam in the form of patented monopolies, which enable them to lay a heavy tax upon the industry of the country, without contributing anything to the real advancement of the arts. (Atlantic Works v. Brady, 1883, p. 200)
The current controversy over patenting psychedelics is therefore nothing new. “Attempts to patent therapeutic methods invented by others” may be “capitalism gone rogue” (Doblin, 2021), but they’re from the same rogues’ gallery we’ve had since the start—what are euphemistically called “low quality” patents, overbroad and claiming ownership of what is properly in the public domain. The dangers are proven. Conferring market power without public benefit, such patents chill healthy competition and can increase prices and reduce access, lead to rent-seeking infringement disputes, and deter further research and development.
With sentiments on record like “many psychedelic companies out there will never be able to bring a product to market” because of patents, and if any “violate existing patents, my portfolio companies would have to protect their rights” (as quoted in Love, 2021), should we expect to soon see the start of the “psychedelic patent wars” (Psilocybin Alpha, 2021, p. 84)? And if an aggressive monopoly or duopoly does emerge, where should we direct the blame?
The patent system may be “the creation of society,” but we must be honest about who has been historically included—and excluded—in the creation of the system.
The patent system may be “the creation of society,” but we must be honest about who has been historically included—and excluded—in the creation of the system. Chacruna’s Patenting the Sacred series has explored this structural exclusion and its implications for society from a variety of perspectives, including that of Anjali Vats and her foundational work on Critical Race IP. Vats’ critical analysis of “intellectual property citizenship” highlights the ways in which the patent system—an ongoing product of lobbying, law-making, litigation, and the values that underlie them—is informed by constantly evolving cultural conceptions of national identity, citizenship, personhood, and economic production (Vats, 2020). Such conceptions have historically excluded people of color, Indigenous epistemologies of knowledge production, and countercultural experiments with property that challenge capitalist logic.
And, while a racially-scripted and hyper-capitalist patent system might represent the values of the archetypical “intellectual property citizen,” does it embody a psychedelic ethos? Indeed, does the patent reward itself—a valorization of the individual inventor, the mythical creative genius alone at the workbench—properly recognize the collective and cumulative effort behind many innovations in the psychedelics space? If not, can we learn from history and rethink how we use patents?
But first, let’s pause to answer one question that may be on many minds; which is, why use patents at all? Why not, in the spirit of open science, simply put everything in the public domain? While worthy of its own article, in outline the answer is twofold: First, patents can be versatilely used: cooperatively and defensively as well as offensively, creating new ways for entities to work together, share benefits, ensure adherence to ethical norms, and fend off predatory actors. Second, patenting certain inventions may be the best way to clarify the prior art and prevent others from claiming it as their own. Whether patent laws are actually necessary to incentivize innovation is up for dispute. But the fact is, we have them—and many will continue to use them—so merely “opting out” does not solve all our problems, and it becomes necessary to find a middle way (Belcher & Casey, 2016; Sampat, 2018). That said, the ethical use of patents can work alongside and help protect those following open science principles, which can still serve as the ideal—and with the cry of “Cooperation over Competition!” as crucial as ever (Jesse, 2018). (A second question—why not reform the patent system itself?—we also leave for another day.)
If we are to reimagine our relationship with psychedelic patents, one way is through an intellectual property (IP) commons
If we are to reimagine our relationship with psychedelic patents, one way is through an intellectual property (IP) commons, broadly defined as a set of IP-related resources shared for the benefit of a community (Lessig, 2001). An IP commons sits between complete enclosure (separate individual rights to exclude) and public domain (everything freely accessible to all), and allows members to decide what resources to contribute and share, and under what rules and limits. While the ultimate structure of a psychedelic IP commons must evolve based on input from all stakeholders—and should take inspiration and guidance from the many existing blueprints for an ethical psychedelics ecosystem (e.g., Jesse, 2018; Gillooly & Conour, 2020; Zelner, 2020; Baggott, 2020; Howell, 2020; Journey Colab, 2020; Zurrer, 2021; Knox, 2021; McGaughey, 2021; Tremblay, 2021)—it is possible to sketch out some dimensions. The contours of an IP commons are flexible, with opportunities for:
- Protection: At its most basic level, a commons can decrease the costs of doing business for each member (including when balanced against the costs of its administration). For example, a commons can act as a defensive coalition, where members share costs to identify and challenge problematic patent applications and collectively bargain for discounted patent risk management solutions (e.g., infringement insurance). Members can adopt a non-aggression pact, or agree to refrain from abusive litigation tactics. A commons can also network member patents defensively, enabling them to be used as mutually-beneficial shields against outside aggressors, or encumbering them to prevent use by patent trolls (i.e., entities whose business model is to acquire and assert patents in order to force defendants to settle rather than face the inordinately expensive costs of patent litigation).
- Cooperation: A commons can generate frameworks to cross-license rights, such as patent pools and other forms of IP assembly, reducing transaction costs and fostering technology diffusion and follow-on innovation. Standard public licenses and digital contracting can further streamline collaboration. Pooled patents can be efficiently licensed to non-members, and can be securitized or used as collateral (e.g., to offer microloans). Although patents are generally filed by larger entities, a commons can uncover and attribute value to IP created by all involved stakeholders, and provide pathways for individuals to better manage and protect their own IP (e.g., therapy practices, research data, patient data, user data).
- Support: A commons can create legally binding mechanisms to support ethical imperatives; for instance, pledging patents to improve access to medicines (e.g., World Health Organization, 2020). Ethical principles can be incorporated directly into licenses and other technology transfer agreements through morals clauses. These can condition the right to use IP on commitments to take certain actions (e.g., promote diversity, equity, and inclusion; meet conservation and sustainability goals) and honor certain practices (e.g., provide meaningful reciprocity; ensure consent from and benefit sharing with indigenous stewards). This enables enforceable transmission of ethical norms to everyone using member IP.
commoning can allow us to co-create a new archetype that aligns with the psychedelic ethos: the psychedelic intellectual property commoner.
In many ways, the ultimate “commons” is subsidiary in importance to “commoning,” the community process and practice of establishing and managing intellectual property as a common good. In contrast to the archetypical “intellectual property citizen” shaped by “invisible Euro-American norms” (Vats, 2020, p. 10), commoning can allow us to co-create a new archetype that aligns with the psychedelic ethos: the psychedelic intellectual property commoner.
Much in the same way that a psychedelic molecule is said to interrupt the default-mode network of the brain, an IP license can use private contract law to interrupt the default-mode network of the IP system
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The psychedelic IP commoner can embrace the experimental and countercultural legacy of psychedelic culture and encode these norms into a commons. The licenses that create and govern an IP commons exist in the domain of private contract law, sitting on top of the public laws that create the basic, default framework for the intellectual property system. Much in the same way that a psychedelic molecule is said to interrupt the default-mode network of the brain, an IP license can use private contract law to interrupt the default-mode network of the IP system (and, in so doing, help disrupt “the default mode network of the entire field,” [Gillooly & Conour, 2020, p. 38]).
For example, the default rules of the patent system automatically grant patent owners the “right to exclude” others from making, using, selling, offering to sell, or importing the subject of the patent (35 U.S.C. § 271). However, a so-called “patentleft” license can interrupt these default rules of exclusion by granting others free use of the patent so long as they agree to license related improvements to the patented invention with the same patentleft terms. When such licenses are adopted across a commons, the default norms of exclusion are interrupted and replaced by norms of inclusion and cooperation.
The additional features of protection, cooperation, and support described above can likewise be spread throughout a commons through the use of patentleft logic, attached as conditions to a patent license. Indeed, the domain of private contract law empowers the psychedelic IP commoner to encode nearly any type of norm into a commons, so long as it does not violate public policy (e.g., a commons does not have the power to decriminalize the use of scheduled drugs).
Commoning offers us an alternative path to the exclusion embedded into the IP system. As psychedelics continue to show promise in therapeutically treating entrenched patterns of mental illness, can psychedelic IP commoners therapeutically treat entrenched patterns of social exclusion with IP licenses? Can we place cooperation over competition, and reimagine—and psychedelicize—the patent system itself? As psychedelic IP commoners, we believe the answer is yes.
Art by Mariom Luna.
References
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