Patenting Nootropic Compositions
Nootropic Technology and Patents
Nootropics are also called “smart drugs” or cognitive enhancers. The term “nootropic’ covers drugs, supplements, or other substances that improve cognitive function. In particular, these substances improve so-called “executive functions” such as memory, creativity, or motivation.
Examples of known nootropics include caffeine, modafinil, the racetams (e.g, piracetam, aniracetam, phenylpiracetam), nicotine, amphetamines, various, psychedelics, and many plant derived extracts and supplements.
Recently, ebbu, the leader in engineered cannabis products has figured out how to make formulations that enhance creativity and focus without the undesired side effects often associated with cannabis.
The Neurohacker Collective offers a product called Qualia, which they define as “a supplement stack with 42 ingredients that will optimize every major system of your brain so you can be more productive and create more impact in the world.”
Research and development in nootropics appears to be growing rapidly. And rightfully so. Who wouldn’t want a simple way to enhance cognitive function? Now, the question on my mind: Can we patent these nootropics?
Patenting Nootropic Innovations
Nootropic research interests me for two reasons — one personal and one professional.
Personally, I like the idea of supercharging my brain. Taken to the extreme, is there a supplement that would help me learn things faster? Could I learn Brazilian Jiu Jitsu techniques in a few minutes instead of a few months? Ideally, I would like to learn things as rapidly as my 8 month old.
Professionally, I like the field of nootropics because of the opportunities for creating patentable subject matter.
Nootropics can be claimed as compositions of matter. Compositions of matter patents are my favorite because they define the invention chemically. (I love chemistry and chemical patent law). Also, I think composition claims are among the strongest claims available to an inventor because they cover all uses of the claimed composition.
Patenting New Formulations of Naturally Occurring Compounds
I’m also interested in nootropics because many of them appear to be found in nature — in plants and fungi. That creates some interesting questions of patentability. Here’s why: A natural product cannot be patented. It’s not new. It has been around forever in nature. And under US patent law, only new things can be patented.
However, while the naturally occurring form of the nootropic cannot be patented, new forms or formulations of the nootropic can be patented. Accordingly, if researchers discover a cognitive enhancer in some naturally occurring mushroom, they could not patent the mushroom itself. (It’s not new). But, they could probably patent purified forms of the nootropic and/or new formulations using that nootropic. They could also pursue new methods of purifying the nootropic and/or formulating it. In each case, the critical question is whether the “invention” is the product of human engineering. (For a related discussion, see the uproar over Nestle and its patents related to the Fennel flower).
Likewise, a company like Neurohacker could seek patent protection for their Qualia product– assuming that their combination of 42 ingredients is a new combination. Provided that the combination is new, the major hurdle to patentability would probably come down to whether that combination would have been “obvious” when the Neurohacker researchers made it.
At a high level, I cannot think of too many 42-member combinations that are “obvious” to formulate without some sort of guidance. Nevertheless, the invention would be evaluated at the U.S. Patent and Trademark Office by the legal standard of obviousness. Under that standard, I suspect that the inventors could demonstrate that their combination is not obvious by providing evidence about how that combination optimizes every major system of the users brain and/or makes the user more productive and/or allows the user to create more impact in the world.