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]