Can You Patent a Magic Mushroom?

By Dale Hunt, PhD, JD – Hunt IP Law

Products of nature?

A previous post in this series had a table of the Main 6 psychedelic medicines, identifying which are natural and which are synthetic. You might assume that, since products of nature cannot be patented, and magic (psilocybin) mushrooms are found in nature, there would be no way to patent them. While this assumption is generally correct, it is incomplete and misleading.

While it is true that a naturally occurring mushroom or plant cannot be patented, a mushroom or plant that is the product of some kind of human intervention is different and is indeed patentable.

But they’re still federally illegal – isn’t that a problem?

Speaking of erroneous assumptions, here’s the one that I deal with most often as a lawyer who works with both cannabis and psychedelics. Surprisingly to almost everyone (including many lawyers), federal illegality is not a bar to patent protection. The patent statute specifies the requirements for patentability, namely that the invention must be new, can’t be obvious, and must be described adequately.

I have written in greater detail about patents and illegal inventions here. Briefly, illegality is no bar to patentability. The confusion about this may come from the fact that illegality IS a bar to federal trademark protection. There is more detail in the post linked at the beginning of this paragraph, if you’re interested.

Patented mushrooms

There are many strains of mushrooms that have been developed through human intervention, either by breeding different strains and selecting offspring that are discernably different, or by identifying variants in a cultivated population and selecting and propagating them. In either case, the new form (a new strain or variety) is patentable under the United States Patent and Trademark Office’s plant patent system. Although mushrooms are fungi and are therefore not actually members of the plant kingdom, they are withing the scope of the plant patent act. In fact, the USPTO has granted several plant patents to protect new mushroom strains.

As of the date of this post, there have not yet been any patents issued on new strains of psychedelic mushrooms. Is that because there is not much breeding activity in this space, to develop new strains? Or is it because the mushroom breeders out there don’t yet know that patent protection is available for their work? I think it’s the latter, and I’m here to help fix that.

Questions and answers

Thus, the answer to the question asked in the title of this article is YES, you CAN patent a magic mushroom.

A different question might be SHOULD you patent a magic mushroom? Future posts in this series will address this question from a few different angles. These include a surprising case that patenting special plants and mushrooms is a key to making them more available to for wide distribution, rather than less available. A different post will examine the ethics of patenting plants and fungi.

This is the third in a series of blog posts on patenting and psychedelics. Watch this space for additional posts on topics of interest in psychedelics and intellectual property. If you have specific requests or suggestions for topics to be covered, please send me an email: [email protected].

The opinions expressed here are the author’s own and do not necessarily reflect those of his professional colleagues or his clients.? Nothing in this post should be construed as legal advice. Meaningful legal advice can only be provided by taking into? consideration specific facts in view of the relevant law.

? 2025 – Hunt IP Law