Can Kratom be patented?
Prior to their expiration, the two patents gave Smith Kline & French during the 1960’s [U.S. Patents 3,256,149 (“Compositions Compromising an Alkaloid of Mitragyna Speciosa and Methods of Using Same”) and 3,324,111 (“Speciofoline, an Alkaloid from Mitragyna Speciosa”) the right to prevent others from making, using, selling, and importing certain alkaloids isolated from kratom, but not the whole plant or leaf. Plants themselves and other substances found in nature have never been patentable, unless they are changed substantially by an inventor. In the 1960s, isolating a substance from a plant was considered a substantial change to the substance. Today it isn’t. Courts have held that substances found in nature, even in impure form, cannot be patented whether they are isolated from a natural source or synthesized in a lab. If a chemical has the same structure as a natural substance, it is not patentable.
Derivatives of natural chemicals can be patented, however. As good as a natural chemical may be, changing it slightly may make it even better — or worse. Scientists tweak a compound’s structure to alter its properties, repurpose it, investigate interactions with other molecules, and design around compounds that are unpatentable. Patents have been granted for derivatives of kratom alkaloids, particularly derivatives of mitragynine and 7-hydroxymitragynine (e.g. U.S. Patent Nos. 8,247,428 & 8,648,090), which potentially may become new drugs that are improved over natural alkaloids. Even if they are never commercialized, studying how structural changes affect biological activity can lead scientists to modify other compounds to impart similar properties. For example, making non-addictive kratom derivatives may show scientists ways opioids could be made non-addictive. U.S. patent law recognizes the importance of such inquiry and includes an exception under 35 USC §371(e), allowing scientists to use patented inventions in certain types of research. Unlike scheduling under the Controlled Substances Act, no permission or pre-approval is needed to take advantage of this exception.