The Propaganda for Reform in Proprietary Medicines, Vol. 2 of 2

by Council on Pharmacy and Chemistry

“PATENTS”

Patent Laws and Patent Office Practice

The inequity of our patent laws, or possibly it would be more correct to say, of the interpretation of our patent laws, has been commented on many times in The Journal. The Journal also has had occasion to call attention to patents that have been issued for obviously unscientific and quackish devices and preparations. The cases of the preposterous gas-pipe fake “Oxydonor” and the creatinin mixture for the alleged conferring of immunity against diphtheria, pneumonia, scarlet fever, syphilis, tuberculosis, etc., are cases in point.

In a patent issued the early part of this year for the “discovery” of a method of flavoring Epsom salt, the patent office has, in fatuity, piled Pelion on Ossa. The “inventor” declares that his invention relates to a pharmaceutical preparation and a special method of treatment of the medicinal agents whereby said agent will be rendered much more efficient in character. He further avows that the “prime object” of his “invention” is to “disguise the normal taste and impart an agreeable odor or smell to salts commonly employed as a cathartic.” Parenthetically it may be said that probably not a day passes that some physician in the United States does not do substantially the same thing when writing a prescription. The “inventor” further claims that the object of his “invention” is to utilize the salts as a vehicle to carry an antiseptic and anesthetic agent whereby the salts when administered as a cathartic “will also act beneficially on the entire digestive tract” and “whereby cramped and spasmodic conditions are at once relieved with a resulting cure of flatulency, indigestion, sick and sour stomach, colic and the destruction of worms, etc.”

Such claims are so absurd that the only excuse for commenting on them is the effect they have on the public mind. The layman reading the specifications of this patent would naturally conclude that an invention of great importance had been made—of such importance as to warrant the government in rewarding its inventor by granting him a seventeen-year monopoly on the sale of his invention.

The law requires that, to be patentable, inventions shall be new and useful and shall show a higher degree of skill in their inception than is naturally to be expected from those who are skilled in the arts to which the inventions belong. It has been decided again and again that physicians’ prescriptions are not patentable because it is assumed that an educated physician will utilize his knowledge of pharmacy in devising proper compounds of medicines to meet the indications of disease. When a physician prescribes a dose of Epsom salt to be taken in one of the official aromatic waters, he does not produce or create a new invention by so doing. Of course, in one sense every prescription is an invention—an invention to meet the conditions presented by the patient—but such inventions are not patentable, because they represent the ordinary skill of a physician in carrying on his vocation.

If the patent office goes on granting patents for such “inventions” as flavored Epsom salt, and it should be found financially profitable to secure such patents and place the products on the market, it will only be a matter of time before the materia medica will be so restricted that a physician will be unable to write a prescription without infringing on somebody’s patent.

The splendid conception of the framers of our constitution in providing a plan for promoting progress in science and useful arts by granting to inventors for a limited time the exclusive use of their inventions, in exchange for the publication of full knowledge thereof, is being debased. No branch of our government is of greater importance to the progress of the country than the patent office, provided that office is intelligently administered. When the patent office is used, however, for an extention of the nostrum business, founded on the abuse of patent and trade-mark laws, it becomes a menace to the public health. The objects of the patent law are being defeated by the practices of the patent office.—(Editorial from The Journal A. M. A., June 23, 1917.)

Our Archaic Patent Laws

In this issue we publish two reports of the Council on Pharmacy and Chemistry which illustrate the weaknesses of the present working of the United States patent laws. In the first report the Council presents an investigation of a recently granted patent, and shows that the patent was issued on the mere claims of the applicant and without the presentation of any evidence for such claims. The second report—“Need for Patent Law Revision”—is an appeal to the Patent Office for a more enlightened administration of the patent law, and it presents a few illustrations of the unfair protection which has been granted by the Patent Office. The protest of the Council appears at an opportune time. In Science[299] the “Patent Office Society,” an association of employees of the U. S. Patent Office, announces that a committee has been created on request of the National Research Council to make a study of the U. S. Patent Office and its service to science and arts. It states that this committee will meet in Washington shortly to consider the adequacy of the present Patent Office equipment and the simplification of procedure as well as responsiveness to present national and international requirements. The committee also hopes to coordinate, in the interest of an improved public service, the endeavors of the various national societies, manufacturing interests, patent bar associations and all others aiming at genuine patent reform. Unquestionably, there is a growing conviction that in the case of medicines the monopoly given by the patent laws, if granted at all, should be granted with greater consideration of the public welfare. Too often the United States Patent Law has been used to obtain an unfair monopoly on a medicament or to abet quackery. There is no question that one of two things is needed: either a radical change in the patent law itself or the application of more brains in its administration.—(Editorial from The Journal A. M. A., Jan. 12, 1918.)

Patents Perpetuated by Trade Names

The patent on aspirin[300] (acetyl­salicylic acid), controlled by the Bayer Company, American representative of the Farbenfabriken of Elberfeld Company, will expire next year (1917). The Journal has previously stated that the grant of this patent was regrettable and worked injustice to American citizens. It is unnecessary again to go into the grounds for this statement; neither in the Farbenfabriken’s home country, Germany, nor in any other country except in the United States, has a patent been granted for this product. Owing to their monopoly, the manufacturers have been able to exact a much higher price for acetyl­salicylic acid, or aspirin, in this country, than elsewhere. Naturally, the Bayer Company, the American agents, view with disfavor the prospect of being compelled to share this rich field with competitors. The foregoing furnishes the answer to inquiries which have reached us from all over the country with regard to the campaign of publicity which the Bayer Company has inaugurated in the lay press. A presumably authentic and apparently candid exposition of the methods used and the motives behind the aspirin advertising is furnished in Printers’ Ink:[301]

“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.”

The business of the Bayer Company, the article goes on to say, has been hurt by the sale of worthless or even harmful imitations put on the market by irresponsible and unauthorized persons when the present war stopped importations from Germany.

“The public knew aspirin, but did not know who made it [italics ours].... When the Bayer Company, Inc., took over the manufacture of aspirin in this country, the first steps were taken to identify the product with the firm who made it.... Of course, there are good reasons why the makers were loth to advertise the product or to exploit their trademark. As every one knows, the advertising of a medical proposition is an extremely ticklish subject.... It is easy to make a misstep. Aspirin is one of those proprietary drugs that are extensively prescribed by physicians. If anything were done that might possibly associate this drug with the patent medicines that are in disfavor with the profession, the valuable influence and cooperation of thousands of doctors might be lost. It is believed that this knotty phase of the question is being answered in the present advertising.... Since nothing is mentioned about ‘medicine,’ ‘cures’ or ‘ailments,’ it is anticipated that there will be but little objection to the copy. All that the advertising attempts to do is to link up the name ‘Bayer’ with aspirin.... The nearest the copy gets to medical talk is in this sentence in very small type at the bottom of the advertisement, ‘The trademark “Aspirin” (Reg. U. S. Patent Office) is a guarantee that the monoacetic acid ester of salicylic acid in these tablets is of the reliable Bayer manufacture.’ ”

From this it appears that, not content with seventeen years of monopoly, the aspirin people are attempting to retain a hold on the market in perpetuo by associating the name of the company with the trade name “aspirin.” There can be no better time than the present, therefore, for the medical profession to substitute, for the nondescriptive name “aspirin,” the descriptive and correct name acetyl­salicylic acid.—(Editorial from The Journal A. M. A., Aug. 12, 1916.)

Patenting Therapeutic Agents

In the past, therapeutic agents and apparatus have been controlled by patents and trademarks for profit. If there have been exceptions, they have been rare. The Principles of Medical Ethics of the American Medical Association contain this statement: “It is unprofessional to receive remuneration from patents for surgical instruments or medicines.” This does not mean that the patenting is wrong in itself; there are occasions when it is wise, if not necessary, to obtain a patent in the interest of the public, and, in the case of surgical instruments and medicines, of the medical profession. In certain instances it is absolutely necessary that the article produced shall maintain a definite standard of quality and purity—and, it may be added, shall be sold at a reasonable price. Enterprising pharmaceutical manufacturers have usually been ready to appropriate the results of scientific research by investigators or therapeutic measures suggested by practicing physicians. Not infrequently, in such instances, the desire for financial gain has caused the marketing of such products with extravagant, if not false, claims as to their value. Yet the patent laws may be used so as to protect and benefit the public and the medical profession. In research laboratories, work is being carried on resulting in the production of new therapeutic agents. It is important that these agents shall be so controlled that they may be made available without subordination to commercial interests. It has become practically necessary, therefore, for research workers to protect their products in the interest of the public welfare and scientific medicine. It has not been an easy matter to decide how best to bring about the desired results. This question has been before the Board of Trustees of the American Medical Association; and, in 1914, the House of Delegates passed a resolution authorizing the board to accept at its discretion patents for medical and surgical instruments and appliances; as trustees, for the benefit of the profession and the public, provided that neither the Association nor the patentee should receive remuneration from these patents. The Rockefeller Institute for Medical Research has solved the problem in a similar manner. In connection with the report of the discovery of several new arsenic compounds, Jacobs and Heidelberger,[302] working in the Rockefeller Institute, say:

It may be appropriate to mention here that this substance and related compounds, described in the present and following papers of the series, are covered by U. S. Patents Nos. 1280119-27. Patents have also been applied for in foreign countries. All discoveries made at the Rockefeller Institute are made freely available to the public, in accordance with the philanthropic purposes of the institution. In order to insure purity of product and protection against exploitation, it has been deemed necessary in certain instances to protect the discoveries by patents. It is the purpose of the institute to permit any drugs which may prove of practical therapeutic value to be manufactured under license by suitable chemical firms and under conditions of production which will insure the biological qualities of the drugs and their marketing at reasonable prices. Other than through the issuance of license, the Rockefeller Institute does not participate in any way in the commercial preparation or sale of the manufactured chemicals; and it receives no royalties or other pecuniary benefits from the licenses it issues.

Here we have medicine at its best. The altruism of pure science operating for the benefit of the general public: scientific therapeutics freed from commercial domination.—(Editorial from The Journal A. M. A., Oct. 18, 1919.)

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