BUST THE DRUG MONOPOLY!
Berge, Wendell
Bust The Drug Monopoly! By WENDELL BERGE WE ARE concerned today as never before with the problem of medical service. We realize more clearly than ever that the public health is one of the (Treat...
...Yet my service and his tablets are complementary parts of the same treatment...
...A complication was that rights in the process of manufacture were being used to secure to the Axis the Latin-American market...
...One who holds a patent on a product or a process strives to protect his monopoly...
...that our medical order must be made an instrument of the national economy and of the general welfare...
...Said the physician, "Here's a problem for you...
...There was quite a bit of evidence that the patent was being used deliberately to restrict output here, while the German concern was forced to go into full production...
...We are just now in the midst of a great development of new medicines...
...It is, therefore, imperative that along this front the agencies of Government should maintain the utmost diligence...
...It will increase the demand, raise the standard of care, bring to medicine everywhere an enhanced importance to the peoples it must serve...
...A real specific should be completely free of the imperfections of the natural product...
...It's easy enough to tell what's the matter with him...
...Even if we did it would not be the exactly right answer...
...He has too much of a vested interest in the status quo...
...The court decided that the technical term acetyl salicylic acid was too much for the common man...
...and the company which was sole American licensee (even as late as Pearl Harbor) showed no disposition to get into production...
...that it was cruelty to ask him to ask for it in so polysyllabic a way...
...and further to aggravate the matter, the primary rights in the patent were held by a German corporation...
...I give him my services, as my profession demands, and to save his self-respect I send him a small bill now and then...
...If an ethical code applies to the services of the doctor, should it not be made to comprehend the instruments and materials without which he cannot do his work ? A practice already in use in respect to our Allies can •—and should—be turned to the benefit of our home folks.The local community should organize—if it does not have one—a medical center...
...But with a single concern controlling the whole supply the relief was not too effective...
...But my diagnosis and remedy are no good without the medicines...
...As the patent expired Bayer claimed an exclusive right in the name...
...Atabrine is more than a medicine...
...Before the war, quinine came from the Dutch East Indies where its supply was rigidly controlled by the Kina Bureau, which was far more concerned with profits than with the public health...
...We brought a suit against the corporation, but it did not choose to defend its case in court...
...It happened, however, that the patent was in German hands...
...The production process was rather simple...
...and to this medical center the facilities as needed should be Lend-Leased...
...Now these new medicines are "inventions," and under our laws are subject to patent...
...A crisis came when Japan conquered Malaya and cut off our imports...
...You see, I operate under one code of ethics, and the man who fills my prescription operates under a different one...
...If it is monopoly, a combination of manufacturers, or a conspiracy to restrain trade which stands in the way, the job is ours...
...The price was so extravagantly high that a necessary synthetic was out of reach of the common people and could in nowise be explained in terms of costs...
...witness vitamins, sulpha-drugs, penicillin...
...And, mind you, he does not wait for discovery or invention before acting...
...We realize more clearly than ever that the public health is one of the (Treat ends of public policy...
...The patent on atabrine still has some years to run...
...The result has been a substantial lowering in the price of the tablets...
...His code of ethics obligates the physician to dedicate his discoveries to the public...
...Result Of Axis Ties But a far more important instance is presented by a specific for malaria...
...it might be a collection of hospitals, laboratories, and clinical facilities...
...Abuses In Hormones I should like, then, to recite a short chapter from the recent history of anti-trust...
...In a word he throws a "fence" around his own preserves or he "blocks" the advance of an art...
...Now clear that one up...
...It shows that the modern medical order has come to include matters which do not lie within the "jurisdiction" of the physician, yet which affect mightily the success or failure of the doctor's ministrations...
...The current bother is that practices indigenous to the pursuit of gain tend to drive the code of medical ethics out of the field of medicines...
...It was intent upon exploiting its monopoly to the full...
...But the issue raised by hormones and atabrine has a far larger significance...
...The treatment is a delicate thing, for dosage has to be accommodated to the changing condition of the patient...
...Far less thought has been bestowed upon the problem of bringing drugs and medicines—without which the doctors' skills are frequently of no avail—within the reach of ;ill who need them...
...Now Germany is a "hard" state which uses its own corporations for military purposes...
...Our greatest obstacle is that very curious phenomenon a "medical patent...
...he has an incipient cancer which I think will yield to a certain kind of hormone...
...It is important that ethical drugs, as well as the service of the physician, should be within the reach of the ordinary pocket-book...
...It may be, as it is in some European countries, that medicines should not be subject to patents...
...A Formidable Barrier The patent does not block a legal drive against the monopoly of a drug...
...If he discovers a new process or invents a new product, he may decide not to put it to work...
...The situation, as we explored it, was far from what you would call a healthy one...
...If necessary let us invoke the state in order that medicines and medical facilities—as well as an abstract thing called medicine—shall be made to serve the general welfare...
...that aspirin had become a "generic" term...
...But the plain truth is that the old bird just cannot afford medical care and he is proud as the devil...
...Against it the Department of Justice some years ago obtained a consent decree which brought the price down somewhat...
...An old man was in here an hour ago...
...But if a bill now before Congress, which proposes to establish proprietary rights in trade names, were to become the law, anyone would be free after the expiration of the patent to produce and to market atabrine— or any other kindred product—but the company now holding the patent alone could display on the package the only word by which the layman would ever call for it...
...A good many years ago Bayer gave the name "aspirin" to a drug upon which it held the patent...
...I have no serious quarrel with an inventor who licenses commercial houses to produce his medicine, provided he licenses all on the same terms, sets high standards for the product, keeps the price as low as possible...
...yet we find private monopolies in the materials of health...
...it must be operated by persons whose competence and deep interest in the various arts which make up medicine are undisputed...
...So he guards his own business by taking out what have come to be called the "blocking" or "fencing" patents...
...A moment's thought will make it clear that "the cost of msdicine" is a problem of vital significance...
...But along this front the intrusion of folkways from business present a clear and present danger...
...Such medicines, too, bear trademarks and are given trade names, which it is easy for the public to remember...
...Community Organization In spite of rumors in the papers we probably do not yet possess a "synthetic quinine...
...But nonetheless, the usages of the patent system stand as a formidable barrier against the purchase of instruments, materials, drugs at reasonable prices...
...But the Department of Justice, backed by other agencies of the Government, did not relax its quiet pressure...
...We ought to be able, by going to court or even without it, to smash barriers, to enlarge output, to get prices down...
...Unlike the doctor's service, which is subject to a code of professional ethics, the manufacture and sale of drugs is a business...
...It may be that a patent is a legitimate device for protecting the quality of the drug...
...He will, to secure his own position, experiment to find out if there are other products capable of doing the same work...
...It sheds light on certain abuses which we should be vigilant to correct...
...A great deal of attention has been given to devising ways and means by which all of us may have access to the services of physicians, surgeons, dentists, nurses...
...Axis ties have been broken, some eight concerns are now engaged in manufacture, and the price, at least for military use, has been substantially reduced...
...We should have been able to escape harm...
...It is, where malaria prevails, an essential of an industrial system...
...It need not, though often it might best, be operated as an organ of local government...
...and, as a result of our victory, the public was able to secure a certain type of spectacles for a more reasonable outlay...
...The other day a colleague told me of a conversation he had just had with his doctor...
...for a synthetic product called atabrine had already been invented...
...And in a recent suit against the manufacturer of lenses, the Supreme Court refused to accept the patent as an excuse for a rigid scheme of price-fixing...
...At the first intimation of where the path of progress may be, he gets in a patent application—the law permits him to rewrite it later—and stakes out a prior claim...
...The ties between the American and the Axis company were broken...
...that keeping people in health is an essential of keeping industry going...
...An exclusive right to the inventor easily becomes the legal basis for a monopoly —the worst sort of a monopoly, because its concern is with the means to life itself...
...But he is mightily concerned that no competitor secure it and put it to work...
...The courts repeatedly have said that the patent privilege cannot be used as an excuse for the exercise of an economic power not granted...
...An illustration will make concrete what I have in mind...
...It need not be a designated place...
...He can't afford the tablets, and really I can't afford to buy themrfor him, though I have been doing so...
...and that, so long as any manufacturer clearly distinguished his product from that of the Bayer Company, he was free to use the word...
...Now, as it happens, this very matter of hormones had been a matter of concern to the Department of Justice...
...The hormones were protected by patent...
...the essential ingredients were not hard to get...
...So the matter was settled in what we call a "consent decree...
...The center must be an instrument and servant of the whole people...
Vol. 8 • September 1944 • No. 36
