The Points Interview: Joseph M. Gabriel

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.

gabriel-cover (1)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.

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.

8 thoughts on “The Points Interview: Joseph M. Gabriel

  1. Looking forward to reading the whole book. The grey and black markets inspired by IP rights and the larger legal/regulatory environment is a great subject for further research. If any Points readers want to highlight existing historical work that does get at this, let me know! Even particularly good contemporary studies would be welcomed.

  2. Yes, I think a lot of work remains to be done on the topic. I’ve argued elsewhere that as historians we tend to approach the past through a binary between “legal” drugs (aka, “pharmaceuticals”) and “illegal drugs” (like heroin, cocaine, etc) that replicates the regulatory mechanisms that currently govern the market. I do this in the book to a certain extent, in that I don’t get into the origins of the Harrison Act, the development of black markets in cocaine and opium, and so on. But I think the fact that we tend to operate according to this binary means that the whole question of black and gray markets in products that we are used to thinking of as “pharmaceuticals” (instead of “illegal drugs”) hasn’t gotten as much attention as it should.

    • Hi everybody! Congrats on the book Joe. Just a brief comment on the question of market regulation (i prefer the term segmentation, but that is my own dissertation bias) and intellectual property. In the trade journals several vocal pharmacists of the late 19th and early 20th century debated the merits of secret formulas in drug preparations. They took the position that secret formulae were a detriment to the business of the pharmacist because carrying those products was just another step in the devolution from the position of the esteemed, professional pharmacist into that of the generalist retailer. So to add to the points made by Joe S. and Joe G. the question of patents, intellectual ownership and trade secrets were not only important for the categorization of a product as part of the “black” or “gray” market, but also in the guild-like debates over who should or should not sell drugs. That is another way of understanding the illicit market, not just in terms of the commodities, but also the people who make it up. I submitted an abstract for this summer’s conference, and I will happily share the chapter once it’s finished up. Best!

      • Hi Rich,

        Yes, you are absolutely correct that IP rights were an important part of debates about the professional status of pharmacy. That is a really key part of what was going on. In the book I talk a lot about this in terms of the relationship between IP rights, price, and concerns among pharmacists about the practice of “scientific” pharmacy – which, of course, was one of the primary ways that reformers in the pharmacy community drew boundaries around what they considered acceptable and unacceptable behavior, sought to uplift their field, and so on. A lot of this was about the danger of low prices, driven by trademarked loss leaders, to corrupt what they considered to be scientific and ethical pharmacy; some of it was about high prices of foreign goods that were made possible through price monopolies, and of course a lot of it was about products made with secret ingredients. So, yes, definitely! I’d love to see your chapter!

        A couple of additional points: first, I’d be cautious about using the phrase “trade secrets” to talk about the use of secret ingredients at the time; I agree that secrecy was used as a means to protect ideas, but I am not sure about the case law at the time. I’m pretty sure (though not positive) that there wasn’t a general doctrine of trade secrets before WWI, but even there was it certainly didn’t apply to patent medicines – in fact, courts sometimes explicitly said that patent medicines didn’t deserve the protection of the law because they were immoral. So secrecy in ingredients wasn’t really intellectual property. Second, re: “market segmentation” – yes, I agree that in some ways that is a better term to use, and that it captures important dynamics that “market regulation” doesn’t. I use it partially because it reflects the aspirations of reformers (including myself) and, in part, because I actually do think regulation happened, at least to some extent. Pharmaceuticals did get increasingly standardized, after all. Still, I take the point and it is a good one.

        Thanks for the comment. Hope to see you over the summer.

  3. This sounds like a great read! I’ve drawn on your previous work for my dissertation-in-progress, Joe, and have found it very useful in helping explain the early regulation of cannabis in the nineteenth century as part of the efforts to improve the drug market through legal means and the rise of state pharmacy laws during the 1870s and 1880s. I think you’re right about the connections these measures have with the “war on drugs” as well as the influence of the legal/illegal binary on our outlook and our scholarship.

  4. Reblogged this on DailyHistory.org and commented:
    The Points Blog has an interview with Joseph M. Gabriel about his new book Medical Monopoly: Intellectual Property Rights and the Origins of the Modern Pharmaceutical Industry published by the University of Chicago Press. I have listened to Gabriel speak about his project over the past few years. It is an intriguing combination of legal and medical history. I have been looking forward his complete book for the last few years.

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