Inspired by the “Is this the cure for cancer?” thread, in which it’s claimed once again that drug companies aren’t interested in herbal medicines because a plant can’t be patented, thus no profit.
I hope we can settle this once and for all. So, can you patent a plant?
Consider St. John’s Wort. I’m sure you can’t patent the plant itself, and I doubt that you can patent any of the chemical compounds that come directly from it. But what if you were able to identify the component(s) of the plant that were responsible for the anti-depressive quality, and then developed a hybrid of the plant that produced those components in higher amounts. Could you patent or otherwise protect your hybridized variety?
Or this: Let’s say you were able to synthesize the active ingredient in the lab. If the lab-based compound were identical to that found in the plant in its natural environment, then I suppose you couldn’t patent the compound, but couldn’t you patent the process by which you synthesized the compound?
Finally, let’s say that the compound that you develop in the lab is just a tiny bit different than the one found naturally. Would that be patentable?
The answer to the last part of your question is yes. Natural product derivatives have a huge role to play in the development of drugs - As much as 60% of all known drugs have been derived from natural products according to some estimates I have seen. It is difficult to be accurate here as what does ‘derived’ mean - it could be a very simple chemical change, or several more involved ones. An example of the former would be the anticancer drug taxotere, patented by Sanofi Aventis, a molecule closely related to the natural product taxol and derived from it in a couple of chemical steps. The latter type of drug is found in the statins - e.g. the biggest selling drug in the world is lipitor (Pfizer), which is based on the structure of fungal natural products like compactin and lovastatin, but many steps removed in structural terms.
So natural products are a fundamental part of the drug discovery landscape - Why they have such a profound biological activity is a deep question and would be the subject of another thread.
I’m just off to work (to synthesise some natural products :)) so I don’t have time to give a full answer to the rest of your question. Briefly, there are different types of patent and the one everybody wants is a composition of matter patent. Ths concerns a molecule that has preferably never been made before and hey ho, it lowers blood pressure. Like a natural product derivative made in the lab. This is the strongest patent position to have. You cannot apply this type of patent to a natural product - this is perhaps the source of confusion for people who think that the pharma company makes no money from natural products. There are many many other ways of showing invention, though, that can build up intellectual property on the natural product - isolation, purification, formulation etc. Basically, if you can show that a natural product has some new biological activity that is not ‘obvious’ (key piece of terminology in patent speak) you will be able to take a patentable position on it in some way.
You can also have a patent on the process for making a natural substance, even if not in the substance itself.
Take aspirin. O-acetic-salicilic acid (sp?) is a natural compund which had been used for milennia in the form of infusions. But it’s difficult to synthetize; the “obvious route” just doesn’t work. A chemist working for Bayer discovered a non-obvious route which worked, making it possible to obtain large amounts of the product; his techniques (“protection groups”) are as common in organic chemistry today as water and salt are in a kitchen. Setting aside the issue of what did patent laws say then and what do they say now, a new process can be patented: even if they hadn’t been able to get a patent on the substance itself, they could have gotten one in the use of protective groups.
And you can have patents on methods of delivery. Nobody has ever patented injectable aspirin? Well, if you can make an injectable form and prove that it’s useful, you can patent “the injectable form of aspirin.”
Which things can be patented changes by country; some countries do not recognize patents from other countries (see “India and Big Pharma”).
So it looks like this is what we have so far on what you can and can’t patent:
The plant itself - No.
Naturally occurring compounds in the plant - No.
A process for extracting a naturally occurring compound - Yes.
A process for synthesizing a naturally occurring compound - Yes.
A variation of a naturally occurring compound - Yes.
A hybridized variety of the plant - Don’t know yet.
Busy Scissors, when you get off work I hope you will flesh out your answer about “isolation, purification, formulation, etc” and the idea of a non-obvious biological activity.
I don’t know if this is true or not; I suppose such an application would be rejected for being obvious. But all medicines include ingredients other than the active one. These can help the active drug get absorbed into the body, for example. The actual drug, which contains the active ingredients as well as the other ingredients, would still be patentable and different companies would be able to try to make their own versions.
Also, if you have two different natural products which produce a much greater effect when combined than the sum of their individual effects, I imagine that you could patent that combination of products, since even if they’re individually not considered “novel” (by virtue of existing in nature), the combination doesn’t exist in nature.
You can totally patent a plant. You have to invent it, of course, through breeding or genetic engineering, but companies patent plants all the time. (Cultivars, to be precise.) In other words, you can’t patent the St. John’s wort that grows wild wherever it grows wild, but if you develop a cultivar that has more of whatever in it, you can patent your cultivar.
They do. It’s true that the Horny Goat Weed they sell in one of my local bodegas isn’t from Big Pharma, but herbal supplements are a big business on their own. Somebody’s buying that stuff or they wouldn’t keep stocking it.
That kind of stuff isn’t FDA approved, but that doesn’t mean it isn’t patented.
I think you may be missing the biggie. While you cannot patent compound A if it is a natural compound, you can patent its use to say cure cancer if that is new. That of course is an effective patent on the compound itself (as far as say cancer goes)
It’s true you can patent a plant for horticultural purposes, and as Zsofia says, it has to be of “garden origin”, meaning , not found in the wild. Could be purposely hybridized, or just found as a noteworthy specimen popping up in the garden/nursery. The nursery I work at introduced one of the first patented coneflowers, a dwarf form, Echinacea ‘Kim’s Knee High’, which was instrumental in exploring tissue culture protocol for echinacea, 15 years ago. Many hoops to jump through then to get a patent: now there are over 80 varieties, and more on the horizon.
But, I’m pretty certain that medicinal plants are not patented due to constituent strength. Case in point:Richter’s Herbs current offerings on St. John’s Wort. This is one of the best companies offering medicinal herbs, and they offer seed of three superior bred strains. If those were patented, they could not offer seed, but plants only. And, St. John’s Wort is a rather “hot” herb, so you bet if it could be patented due to high medicinal constituents, it would be.
Same with echinacea, another Poster child medicinal herb everyone"gets", both in traditional use (simple colds) and as a beautiful flower. There is no echinacea I know of patented for superior constituents, and if there could be, there would be, cause it would certainly sell well. All the patented variations and hybrids are for garden worthiness; height, color variation, and vigour.
I’ll admit that that may be in the works, and kept hush from the horticultural world, but I pay pretty good attention to medicinal plants, and haven’t seen that.
You most certainly can patent a compound found naturally in a plant, if you are the first one to identify it. The compound must be novel (that is, there must have been no description of the compound in the literature), non-obvious (the compound cannot be too similar to a compound known in the literature – gross oversimplification of the jurisprudence around this concept), it must be useful (inferred by the OP) and you must describe how to make it (in this case, how to purify it) and how to use it. The key is that you are describing a technical advance in describing a compound separated from its natural environment (purified) not that which was already found in nature.
There’s a type of cherry tree that is patented. My buddy’s house has one. He was going to remove it shortly after he bought the house, but his real estate agent told him “Don’t you dare! Do you have any idea what that tree’s worth?” Apparently to get a cherry tree like that one in your yard costs a small fortune around here.