A nod to the 'muggle' mushroom - A recent patent dispute concerning the common mushroom may be relevant for those operating in the field of psychedelics. 

Mushrooms are not plants

The UPC Hague Local Division recently granted a preliminary injunction in favour of Amycel LLC, a mushroom producer.¹ The patent in dispute (EP1993350) belonging to Amycel, discloses a hybrid cross of 2 strains of Agaricas bisporus (the common brown mushroom frequently seen in food stores) - to display selected characteristics which improve commerciality of the product: increased productivity, darker and thicker caps, and non-compatibility with existing strains (to reduce risk of introducing genetic disease). Producers of the common (unimproved) mushroom sought to challenge the validity of the patent, including on the basis of Article 53(b) of the EPC. As a recap, this article provides that patents will not be granted for "plant or animal varieties or essentially biological processes for the production of plants or animals". The Defendants argued that a mushroom strain should be equated to a plant variety and thus form part of the subject matter which is excluded from patentability. 

The question before the court on this issue therefore came down to whether mushrooms are considered to be included under “plants” for the purposes of this exclusion. The UPC Hague Local Division clarified that as mushrooms belong to the Fungi kingdom, they are taxonomically distinct from the Plantae kingdom and were recognised as such when the EPC was drafted. The court specified that exceptions to patentability must be interpreted narrowly; with mushrooms falling outside of those exceptions. 

Broader relevance in the field of mushrooms? 

Approximately 140 species of Psilocybe (the "magic mushrooms" which produce psilocybin, a common psychedelic) have been identified so far, with discovery of new species having been reported as recently as last month.² As psychedelic therapies including the uses of psylocibin gain ever more attention, research into species of Psilocybe, their evolution and gene variants (such as those controlling production of psilocybin and related compounds), is a key area of interest. Whilst approaches to patenting in relation to psychedelic therapies go far beyond natural-occurring psychedelics, anyone who might seek to challenge the validity of patents relating to Psilocybe strains and cross-breeding may wish to take account of this decision. 

1. UPC Decision: https://www.unified-patent-court.org/en/node/966 
2. Two new species of Psilocybe mushrooms discovered in southern Africa | ScienceDaily