In 1917, in the United States, six million people suffered from syphilis. The only drug that offered some relief at the time was an arsenic compound made in Germany called salvarsan. The United States entered the first world war against Germany in the spring of 1917, and the supply of salvarsan–the tradename for asphernamine or “606”– and related compounds (such as neosalvarsan) was greatly limited. The German company also held patents in the United States on asphernamine and its variants, so Congress was asked to cancel those patents.
A physician, George Walker, who was a faculty member at Johns Hopkins University was among the first to testify before a Senate committee. Dr. Walker was in charge of the Johns Hopkins syphilis work. It has been over 100 years since Dr. Walker testified. It’s time to give his effort renewed visibility.
Dr. Walker’s first point is that the German patent system did not permit the patenting of compounds. One could patent the method to produce a compound, and could trademark the compound one produced–but not the compound itself:
The German idea in not patenting the chemical substance is to give an incentive to other expert chemists and ingenious men to perfect another process of manufacture. In that way they can use and sell the same substance, provided it is made by an entirely dissimilar method or way.
This is an intriguing point–quite apart from whether Dr. Walker was accurate about German patent law at the time or whether German patent law is the same way still if it ever did have this limitation. If one wanted to “unleash” American “innovation” with regard to drugs, might not the thing to do be to eliminate patent protection for chemicals and compounds, at least when directed at medical uses? If the invention is restricted to the method of production, then there is an opportunity for others to find new methods of production. Put another way–if there is nothing inventive about the method of production–then the result, too, ought to have nothing inventive about it. Anyone could do it. A patent should not take away from people what they could already do–rather, the justification for a patent is that it grants exclusive rights in something that people could not already do (and thus, they are not prevented from doing anything that they would do). I know, I know–bureaucrats want to unleash American innovation–but not in any known way, but only through regulatory tinkering. Continue reading