EDITOR’S NOTE: Points is delighted to welcome former contributing editor Joseph M. Gabriel, an associate professor of Behavioral Sciences and Social Medicine at Florida State University’s College of Medicine. Gabriel’s new book, Medical Monopoly: Intellectual Property Rights and the Origins of the Modern Pharmaceutical Industry (University of Chicago, 2014) offers a sweeping new interpretation of the origins of the complex and often troubling relationship between the pharmaceutical industry and medical practice today.
Medical Monopoly tells the story of how it became ethically and scientifically acceptable for drug manufacturers to use patents and trademarks to protect their commercial interests. In the years before the Civil War, physicians, pharmacists, and respectable drug manufacturers all believed that the use of patents and trademarks corrupted science, harmed patients, and threatened the health of the public. This was partially because of the way patent and trademark law operated at the time, but it was also because they believed that restricting knowledge about drugs was contrary to the practice of good science. Physicians in particular were deeply critical of the use of patents and trademarks and considered them a form of quackery – for example, physicians could be driven out of the profession for prescribing patented medicines. Think about that! Can you imagine a physician getting drummed out of business for prescribing a patented drug today?
Anyway, as a result of all this, respectable drug manufacturers almost never patented or trademarked their products before about 1880. Given the highly competitive market at the time, however, this meant that they faced significant problems introducing new products in a commercially viable manner. Moreover, the medical community considered commercial innovation by drug manufacturers to be an unethical encroachment on their own therapeutic authority, and physicians loudly denounced manufacturers who introduced new products for profit as violating the norms of medical science. As a result, so-called ethical firms almost always sold only familiar goods that were manufactured according to established standards, and, like physicians and pharmacists, attacked those manufacturers who did use patents and trademarks as unethical quacks.
Following the Civil War, this all changed. The critique of intellectual property gradually gave way to a belief that patents and trademarks were a legitimate and even necessary part of scientific drug development. This transformation in ethical sensibilities was intertwined with important changes in patent and trademark law, efforts by therapeutic reformers to improve the drug market, and a number of other complex factors. It was also the result of efforts to reconcile the ethical norms of medical science with the need for commercial firms to successfully introduce new products to market in order to remain competitive – for example, I write a lot about a pharmacist and physician named Francis Stewart who worked closely with drug manufacturer Parke, Davis & Company in the 1880s and 1890s. Stewart argued that patents and trademarks, properly used, actually promoted medical science by allowing manufacturers to invest resources into the drug development process. The result of all this was that by about 1900 both physicians and pharmacists considered it acceptable to patent and trademark pharmaceuticals. They also accepted the fact that drug manufacturers had an important role to play in the development of new drugs, although they were not always happy about how this new role seemed to encroach on their own authority. This, in turn, allowed domestic manufacturers to innovate new products and to patent and trademark their goods without provoking the wrath of physicians, and by World War I domestic manufacturers had begun to cautiously embrace the use of intellectual property rights. Yet despite the new acceptance of patents and trademarks, many physicians and pharmacists continued to draw on the anti-monopoly tradition and remained critical of the impact of patents, trademarks, and other forms of intellectual property on medical science.
This is important because the relationship between the pharmaceutical industry and medical practice today is highly strained. We obviously depend on the pharmaceutical industry to manufacture and develop new drugs, and at a basic level almost no one questions the right of manufacturers to patent their products or sell them under trademarked names. It just seems natural to us that manufacturers should earn a profit off of their efforts to develop new drugs. At the same time, however, there is a tremendous amount of debate about the appropriate extent of patent rights and about how patents and product branding, and promotional campaigns more broadly, shape the drug market. Debates about generic drugs are an important part of this, of course, and I talk about the origins of generic names extensively in the book. But there is also a growing recognition that the drug industry regularly engages in practices that clearly undermine medical science and even harm patients. It seems like every day there is another story in the newspapers about the industry acting badly, and in many of these cases the issues involved are directly related to patent and trademark concerns – the recent lawsuit filed by New York Attorney General Eric Schneiderman against Forrest Laboratories for trying to maintain “an illegal monopoly” on the sale of an Alzheimer’s Drug is a good example. These issues are clearly very much alive today, and I hope that this book helps explain how we got to where we now are.
What do you think a bunch of alcohol and drug historians might find particularly interesting about your book?
The whole thing, I hope. No, seriously, even though drugs such as opium, cocaine, and marijuana don’t show up that much in the book, anyone who is interested in the nineteenth or early-twentieth century drug market will benefit from reading it. I write a lot about the efforts of therapeutic reformers to improve the drug market through legal means, and I have a bunch of material on state pharmacy laws during the 1870s and 1880s. Even though I don’t talk about criminalization explicitly, the connections are not really that difficult to make and I think that people who are interested in the history of the “war on drugs” will find that and other material in the book interesting. More generally, I think the book provides a good overview of the nineteenth-century drug market, so even if readers aren’t specifically interested in intellectual property law it should be valuable. There really aren’t many books that cover the same type of ground – Jan McTavish’s book Pain and Profits comes to mind, but it is significantly narrower in scope. So I think it should be of interest to at least some of the folks who read this blog.
Now that the hard part is over, what is the thing YOU find most interesting about your book?
The fact that it is finished.
Every research project leaves some stones unturned. What stone are you most curious to see turned over soon?
Toward the end of writing the book I got really intrigued about the connection between intellectual property rights and the formation of black and gray markets. I spend some time in the book discussing the black market that developed in phenacetin and aspirin after they were introduced by Bayer (in 1887 and 1900). Basically, what happened is that the patents on the two drugs allowed Bayer to charge a higher price in the United States for them than in other countries, where patents were not allowed. Smuggling operations quickly sprang up as a result, and Bayer then launched a massive campaign to suppress the use of smuggled forms of these products. It’s a really interesting story, and I’d like to see how IP rights played out in terms of other substances that were bought and sold on the black market. I think there is an important story to be told about the relationship between IP law, price, and the smuggling of otherwise legal substances.
BONUS QUESTION: In an audio version of this book, who should provide the narration?
I would. I don’t have a great voice, but I like to hear myself talk.