ACETYLSALICYLIC ACID, NOT ASPIRIN
The Council on Pharmacy and Chemistry publishes a report in this issue giving its reasons for deleting “Aspirin-Bayer” from New and Nonofficial Remedies. In order that a standard may be provided, the drug acetylsalicylic is retained[259] in N. N. R. under its scientific name, acetylsalicylic acid, aspirin appearing as a synonym. The attempt on the part of the Bayer Company to perpetuate the monopoly it has had for seventeen years in the United States was briefly discussed editorially in The Journal, Aug. 12, 1916. We quoted from Printers’ Ink, a magazine devoted to advertising, in part as follows:
“The manufacturers of aspirin are about to launch an extensive advertising campaign to clinch the market as far as possible before the expiration of their patent rights next year.... The purpose of the campaign is to identify the product with the trademark of the Bayer Company and to this extent hamper competition after the expiration of the patent.”
It is worth while reminding physicians of the privileges the Bayer Company has enjoyed for so many years, owing largely to our inequitable and crude patent laws, or to their construction. First, it should be remembered that practically no other country in the world, not even the original home of the preparation, would grant a patent on either acetylsalicylic acid, the product, or on the process for making that product. The United States granted both! As a result, for seventeen years it has been impossible in this country for anybody except the Bayer Company to manufacture or sell acetylsalicylic acid, either under its chemical name or under any other name. Neither was it possible for individuals, hospitals or any other institutions to import it, legally, for their own use.
Needless to say, the American people have been made to pay exorbitantly for the monopoly our patent office granted this firm. Three or four years ago The Journal, through the American consuls, obtained information regarding the price at which acetylsalicylic acid was sold in foreign countries. At that time, acetylsalicylic acid, as “aspirin,” was costing American druggists—and of course the American public had to pay still more for it—43 cents an ounce. Just across the border in Canada it sold for one-third the price asked here. In some of the foreign countries, acetylsalicylic acid under its scientific name could be purchased by the druggists of those countries at from one-sixth to less than one-tenth the price that it cost American druggists. Here are some of the figures:
Austria-Hungary | 4 cents an ounce | Holland | 4 cents an ounce |
British Isles | 6 cents an ounce | Norway | 4 cents an ounce |
Denmark | 4 cents an ounce | Sweden | 4 cents an ounce |
France | 4 cents an ounce | United States | 43 cents an ounce |
Germany | 4 cents an ounce |
Not content with the iron-bound monopoly which it had been granted through our patent laws, the company attempted further to clinch its exclusive rights by giving the preparation a fancy name, “aspirin,” and getting a trademark on this name. The patent on acetylsalicylic acid expires next month (February, 1917). After its expiration the product, and its method of manufacture, become common property. American manufacturers will now be able to do what manufacturers in other countries, other than the patentees, have long been doing—make and sell acetylsalicylic acid.[260]
Unfortunately, it is extremely improbable that any American manufacturer will market acetylsalicylic acid under the name aspirin, although we believe they would have a legal right to do so. The courts have held in related instances that when a patented article has been known during the life of the patent under a trademarked name, with the expiration of the patent the name as well as the product becomes common property. The classical “Singer Sewing Machine” decision and the lanolin case are in point. The Bayer Company, through a widespread newspaper advertising campaign, seems to be attempting to perpetuate its seventeen-year monopoly by leading the public to believe that there can be only one brand of genuine acetylsalicylic acid on the market—that made by the Bayer Company.
The firm will, of course, continue to manufacture and advertise the product under the name “Aspirin-Bayer,” and will probably charge high prices for it, as was the case with phenacetin (acetphenetidin). In any event, physicians hereafter should do what for a long time we have been advising should be done, namely, prescribe the compound under its scientific name, acetylsalicylic acid. They should do this if for no other reason than that they would be using the name which carries with it a reminder of the composition of the preparation. Of course, for those who have been writing “aspirin” it will be rather difficult to write “acetylsalicylic acid,” just as a quarter of a century ago it was difficult for the physician of that day who had been using the copyright name “antifebrin” to write “acet-anilid,” a name which nowadays is easy, even for laymen.—(Editorial from The Journal A. M. A., Jan. 20, 1917.)
“What’s in a Name?”
Under the caption “What’s in a Name?” the current (April) issue of the Journal of Industrial and Engineering Chemistry has an editorial dealing with the nomenclatures—common and proprietary—of acetylsalicylic acid. The editorial was prompted by an article by Dr. Leech printed in the same issue. Replying to its own question:
“The answer to this question so far as it applies to acetylsalicylic acid (popularly known as aspirin) is the difference between eighty-eight cents, the price the druggist must pay for every one hundred tablets of Bayer aspirin, and forty cents, the cost of an equally pure American product. Naturally, this difference in cost is passed on to the individual consumer.
“That no scientific justification exists for this difference in cost is clearly shown in the contribution by Dr. Paul Nicholas Leech, of the Chemical Laboratory of the American Medical Association, page 288 of this issue.
“On the other hand, the excess profit fully warrants the extensive and shrewdly-worded advertising campaign now in progress, a campaign which must eventually fail, because in the first place, it is contrary to the prevailing spirit of modern advertising, the motive of which is constructive rather than destructive, and, in the second place, it appeals merely to the temporary ignorance of the public at large, and has no basis in fact.
“We have been informed that the Custodian of Alien Enemy Property has taken charge of the stock interests of alien enemies in the company conducting this propaganda. Surely the Custodian will not care, even in a trustee capacity, to continue as a participant in a misleading campaign whose sole purpose is the perpetuation of a monopoly hitherto enjoyed under full patent protection.”
The article to which the editorial refers is a somewhat technical one giving the findings of an examination made, at the request of the Council on Pharmacy and Chemistry, in the Chemical Laboratory of the American Medical Association by Paul Nicholas Leech, Ph.D., of various American brands of acetylsalicylic acid (aspirin). The result of the investigation may be summed up briefly in the statement that there are on the American market, made by American firms, several brands of acetylsalicylic acid that are just as good as, if not better than, the Bayer product.
The Journal has called attention to the misleading propaganda on the part of the Bayer Company (Farbenfabriken vorm. Friedr. Bayer & Co.), in its attempt to perpetuate the monopoly granted under our inequitable patent laws. This is done by conveying the inference that the only pure acetylsalicylic acid on the market is that known as “Aspirin-Bayer.” Physicians should again be reminded of the facts in the case of aspirin: Practically no other country in the world, and certainly not Germany, the original home of aspirin, would grant a patent either on acetylsalicylic acid, itself, or the process for making it. The United States granted both! As a result no one in this country except the Bayer Company could for seventeen years manufacture or sell acetylsalicylic acid either under its chemical name or under any other name. Nor was it permissible for hospitals or individuals to import it. While the monopoly held, the American people were compelled to pay from six to ten times as much for acetylsalicylic acid as were the people of Great Britain, France, Germany, Austria-Hungary, Denmark, Holland, Norway or Sweden. At a time when American druggists were compelled to pay 43 cents an ounce for acetylsalicylic acid as aspirin, just across the border in Canada it sold for about one-third the price.
About a year ago, the Council on Pharmacy and Chemistry announced that “Aspirin-Bayer” had been deleted from New and Nonofficial Remedies while the scientific term acetylsalicylic acid was retained along with standards to insure its quality. The necessity for a standard becomes evident when it is remembered that acetylsalicylic acid is not yet an official drug, and its purity, therefore, is not subject to the control of the federal Food and Drugs Act. It is worth while at this time to remind physicians that several brands of acetylsalicylic acid (aspirin) have been found to comply with the standards set by the Council on Pharmacy and Chemistry and have been admitted to New and Nonofficial Remedies.[261] These, of course, are thereby subject to the control of the federal law to conform to the standard to which they profess.
Leech’s report gives still greater weight to the suggestion that has been made for some time, viz., that physicians should describe acetylsalicylic acid under its scientific name rather than its proprietary name, even though, in the opinion of The Journal, the proprietary name, aspirin, has become common property since the expiration of the acetylsalicylic acid patent. Every consideration of public interest, of patriotism and of ordinary common sense should prompt physicians to specify acetylsalicylic acid in writing prescriptions.—(Editorial from The Journal A. M. A., April 13, 1918.)
Advertising Principles—Lay and Medical
The Journal has received two letters, one from a physician who had written to the New York Tribune protesting against an advertisement of “Aspirin (Bayer)” that appeared in the rotogravure supplement of a Sunday edition and the other the New York Tribune’s answer to the protest. The two letters make an editorial in themselves. Here is the letter of the physician—Dr. Edwin H. Shepard of Syracuse, N. Y.—which was addressed to the editor of The Journal:
“When a great daily newspaper takes a stand for honest advertising it seems worthy that acknowledgement should be made. On April 14 the illustrated Sunday supplement of the New York Tribune, together with many of the other papers of the country, published a duplicate of the enclosed advertisement of ‘Aspirin.’ Your own instructive editorial on ‘Acetylsalicylic Acid, or What’s in a Name?’ had appeared in the copy of The Journal of the day preceding.
“Believing in the sincerity of the Tribune in its effort for honest advertising, I sent them a copy of your editorial together with the page of advertisement, also calling attention to the statements in the advertisement which seemed questionable. Among the questionable matters in the advertisement were the statements, ‘The one genuine Aspirin,’ ‘No other is genuine,’ ‘That which is genuine possesses qualities of excellence never found in imitations,’ ‘For your protection ... every package and tablet is marked with the Bayer cross,’ ‘Your guarantee of purity,’ and ‘Refuse substitutes as they may prove ineffective and harmful.’
“The Tribune was requested to investigate into the standing of the Bayer company and its product. A few days later the enclosed letter was received from the paper’s Bureau of Investigations.”
And here is the New York Tribune’s answer, signed by R. R. Baer, assistant director of that paper’s Bureau of Investigations:
“We have your letter of April 14th, which was acknowledged on the 22nd, in re Aspirin. For your information: Our rotogravure supplement is printed a number of days in advance of the Sunday paper. When these copies which have already been printed are used, no further Aspirin copy will appear. This means a loss of some four pages.”
How many of the numerous medical journals that are still carrying the “Aspirin (Bayer)” advertising would make such a financial sacrifice for mere principle?—(From The Journal A. M. A., May 25, 1918.)
“Aspirin”—A Common Name
“Aspirin” as a trademark will no longer exist if the recommendation of the Examiner of Interferences of the United States Patent Office is upheld, as it probably would be, should the matter be taken to the courts. The opinion of the Patent Office was the result of a petition by the United Drug Company in the case of that company against the Bayer Company, or, as it was called at the time the suit was brought, the Farbenfabriken of Elberfeld Company. The stand taken by the Patent Office is directly in line with that that has been held in this and other cases by The Journal, which has for years insisted that it was against public policy to permit patentees to extend the seventeen-year monopoly, which the patent laws grant, to a perpetual monopoly by the simple device of obtaining a trademark for the name of the thing patented. It is a fundamental principle in law that “no one can have a monopoly in the name of anything.” This, of course, has been recognized and admitted even by those manufacturers who have attempted to invoke the trademark laws to obtain an unwarranted advantage.
The manufacturers of aspirin have held that the chemical name “monoaceticacidester of salicylic acid” was the true name of the patented article, and was the only name which became public property when the patent right expired. The Patent Office points out, however, that for years the only name that the public ever saw on the brand of monoaceticacidester of salicylic acid made by the holders of the patent on this product was “Aspirin.” The Examiner of Interferences in his decision points out that, previous to 1915, the Bayer Company sold no tablets to the retail-purchasing public, but marketed its product as a powder; further, that it did sell vast quantities of the powder to tablet-makers, who sold “Aspirin Tablets,” and that the consuming public knew the product only by the name “Aspirin.” This name, then, had a significance to the purchaser, similar to that of the word “quinin” on a package of quinin tablets, or the word “calomel” on a package of calomel tablets. As the Patent Office says: “In other words, the prima facie significance of this word ‘Aspirin’ to such purchasers was that of a name”—and as a name it is “necessarily incapable of exclusive use by any one.”
The Patent Office’s decision also brings out the fact that, until the owners of the aspirin patent commenced making tablets themselves, the aspirin tablets on the market were not uniform, and that this lack of uniformity was a fraud on the public which the owners of the aspirin patent should have prevented. The concern did prevent it when it began to make the tablets itself, but maintained in its contention against the United Drug Company that it was unable to control the matter previously—a contention to which the Patent Office gives short shrift. It is further pointed out that the Bayer Company evidently recognized the weakness of its contention by the emphasis it placed through its advertising on the “Bayer Cross.”
When the Bayer Company began manufacturing its own aspirin tablets, it made a pretense of complying with the letter of the law, while violating its spirit, by placing on the label under the word “Aspirin,” the statement that “the monoaceticacidester of salicylic acid in these tablets is the reliable Bayer manufacture.” Says the Patent Office: “With regard to the expression ‘monoaceticacidester of salicylic acid,’ a mere inspection of it is sufficient to apprise any one of its inherent unsuitability for use as a name by the lay purchasing public.” This attempt on the part of the company to “beat the devil around a stump” tended, in the opinion of the Patent Office decision, “to show that the respondent was familiar with the methods of some modern traders to meet the trend of the law.” And, discussing such methods, the Examiner of Interferences says: “A very popular one is for a trader to seemingly bend to the necessity of the situation by placing on the label a notation which in theory, but not in practice, may be used by the public to identify the article after the monopoly has expired. To the examiner this practice seems to be merely a manifestation of that keen commercial instinct which endeavors to keep just ahead of the law. This instinct is fairly common in traders, and is clearly disclosed in trademark infringement cases.”
Summed up, the decision is to the effect that, as in any case prior to 1915, the public had been driven to look on the word “Aspirin” as the name of a thing, and as the Bayer Company had not used the word as a “trademark” within the meaning of the law, the Patent Office recommends that the registration of “Aspirin” as a trademark be canceled. If no appeal is taken from this decision, or in case an appeal is taken, should the opinion be sustained, the attempt on the part of the patentees of aspirin to get a perpetual monopoly on their product through the trademark laws will have been definitely defeated.—(Editorial from The Journal A. M. A., Jan. 11, 1919.)
“Aspirin Bayer” and the Sterling Products Company
A correspondent, who asks that his name be not published, writes:
“Your editorial on ‘Aspirin or Acetylsalicylic Acid—An Important Court Decision’ is timely. Too often, I fear, physicians forget ‘what’s in a name.’ I have been told that the Sterling Products Co., the present owners of the Aspirin-Bayer rights, are manufacturers of other ‘patent medicines.’ Are they interested in the Winthrop Chemical Company, which firm seems to be using the much vaunted ‘Bayer Cross’ on the labels of the products formerly imported from Germany by ‘The Bayer Company’? If you answer this in The Journal, kindly omit my name.”
The recent history of Bayer & Co., is somewhat as follows: Shortly after the United States entered the war, the Alien Property Custodian took over the property of Bayer & Co. (Inc.) and its subsidiary, the Synthetic Patents Co. In his report to congress the Custodian said:
“The stock of Bayer & Co. (Inc.) and of Synthetic Patents Co. was sold by me at public auction, the successful bidder being the Sterling Products Co., a West Virginia corporation dealing in proprietary medicines. This company had previously agreed to dispose of the dye plant and patents, in case it secured the property, to Grasselli Chemical Co., one of the largest makers of heavy chemicals in the country. The price paid was $5,310,000, plus back taxes and other obligations of many hundred thousands more.”
After the Sterling Products Company had acquired the pharmaceutical end of the business, the Winthrop Chemical Co. was incorporated in the state of New York. This concern seemingly secured control of all the Bayer pharmaceutical specialties except “Aspirin.” The Bayer Co., it was announced, had been merged with the Sterling Products Co., and “Aspirin-Bayer” added to the latter firm’s list of “patent medicines”: Cascarets, Danderine, Pape’s Diapepsin, California Syrup of Figs, Neuralgine and Dodson’s Livertone. The business is apparently a paying one financially as witness the following excerpt from a recent announcement in a drug journal:
“Stockholders of the Sterling Products Co., Inc., of Wheeling, manufacturers of Neuralgine, Cascarets, Bayer’s Aspirin, and other well known products, and the largest proprietary medicine organization in the world, at their annual meeting received a report of Manager W. E. Weiss, which showed that the company did a $10,000,000 business in 1920. The total profits were $2,100,000, while a total of $1,080,000 was paid out in dividends.
Just what relationship exists between the Winthrop Chemical Co., and the Sterling Products Co., we do not know. As our correspondent points out, the “Bayer Cross” is used on the label of the Winthrop products.
The advertising campaign of “Aspirin, Bayer” since it entered the “patent medicine” field has been typical of that field. By half truths and inferential falsehoods the public has been led to believe that the only genuine aspirin on the market is that put out under the Bayer name. The facts are, of course, that the aspirin of any reputable firm is just as good as the aspirin put out by the makers of Livertone, Danderine and Cascarets.
There is one point, however, that is of vital importance to the medical profession; The decision recently rendered in the United States District Court of Southern New York makes it obligatory for druggists, when filling a physician’s prescription calling for “aspirin,” to dispense the Bayer product. When the public buys aspirin on its own responsibility—without specifying any particular brand—the druggist may give the purchaser any make of acetylsalicylic acid he sees fit. To repeat what was said in The Journal’s comment on this decision: “Unless a physician wishes to cater to the concern owning the Bayer rights and to aid in perpetuating what was a monopoly for seventeen years, he should be careful to prescribe the drug under the term ‘acetylsalicylic acid,’ The court now places the responsibility directly on the medical profession. Avoid ‘aspirin’—write ‘acetylsalicylic acid.’—(From The Journal A. M. A., June 11, 1921.)