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.
Describe your book in terms your bartender could understand.
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.