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Published online by Cambridge University Press: 28 September 2018
This paper explores the interaction of British medical practitioners with the nascent intellectual property system in the nineteenth century. It challenges the generally accepted view that throughout the nineteenth century there was a settled or professionally agreed hostility to patenting. It demonstrates that medical practitioners made more substantial use of the patent system and related forms of protection than has previously been recognised. Nevertheless, the rate of patenting remained lower than in other fields of technical endeavour, but this can largely be explained by the public nature of medical practice during this period. This paper therefore seeks to retell the history of the exclusion of medical methods from patent protection, an exclusion whose history has produced a substantial body of scholarship. However, its aims go beyond this in that it also seeks to illuminate how medical practitioners engaged with the broader political and policy landscape in order to secure financial remuneration for their inventions. Through an exploration of how prominent doctors interacted with Parliament around claims for a financial reward, it demonstrates that doctors sought to use reputational advantage to leverage financial success and the important role that Parliament could play in that process.
Our thanks go to Graeme Gooday, Claire Jones, James Stark and the participants at the ‘Rethinking Patent Cultures’ workshop held at Leeds University in July 2014 where this paper and our data set were first presented. Thanks must also go to Lionel Bently, Phillip Johnson, Mario Biagioli, Kara Swanson, Gerardo Con Diaz, Joseph Gabriel and the anonymous reviewers.
1 On the existence of this system of rewards running parallel to patent protection see Burrell, R and Kelly, C ‘Public rewards and innovation policy: lessons from the eighteenth and early nineteenth centuries’ (2014) 77 MLR 858CrossRefGoogle Scholar.
2 Re C&W's Application (1914) 31 RPC 235Google Scholar (C&W).
3 For a detailed discussion of Buckmaster's decision and later judicial consideration see Pila, J ‘Methods of medical treatment within Australian and United Kingdom patents law’ (2001) 24 UNSWLJ 420Google Scholar.
4 ‘Of course, it is well known that the medical profession do all in their power to discourage members of their body from obtaining protection for any discovery that has for its object the alleviation of human suffering, and it is impossible to speak too highly of such conduct, but it cannot affect my judgment in arriving at a conclusion upon the terms of the Section of the Act of Parliament, and I have altogether excluded such consideration from my mind’ (at 236).
5 See eg CJ, Barwick in Joos v Commissioner of Patents (1972) 126 CLR 611Google Scholar (HCA).
6 Pila, above n 3; ED Ventose ‘Patent protection for methods of medical treatment in the United Kingdom’ [2008] IPQ 58.
7 See eg per Dixon, and Evatt, JJ in Maeder v Busch (1938) 59 CLR 684 (HCA)Google Scholar.
8 Australia provides the most prominent exception, with the exclusion of methods of medical treatment from patentability being rejected in Rescare Ltd v Anaesthetic Supplies Pty Ltd (1992) 25 IPR 119Google Scholar and Apotex Pty Ltd v Sanofi-Aventis Australia Pty Ltd [2013] HCA 50.
9 Convention on the Grant of European Patents (European Patent Convention), Art 53(c).
10 Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), Art 27.1.
11 Ibid, Art 27.3(a).
12 For the fullest treatment of this proposition see Piper, T ‘A common law prescription for a medical malaise’ in Bently, L, Ng, CW and D'Agostino, G (eds) The Common Law of Intellectual Property: Essays in Honour of Professor David Vaver (Oxford: Hart, 2010) p 145Google Scholar: ‘From the early to mid-nineteenth century, UK physicians had been professionalising, which most importantly involved distancing the practice of medicine from the prevailing market morality’. For a similar analysis in the American context see Reisman, JM ‘Physicians and surgeons as inventors: reconciling medical process patents and medical ethics’ (1995) 10 Berkeley Tech LJ 355 at 380Google ScholarPubMed.
13 For a neat summary of this long tradition in the history of science see Loeb, L ‘Doctors and patent medicines in modern Britain: professionalism and consumerism’ (2001) 33 Albion: A Quarterly Journal Concerned with British Studies 404 at 406CrossRefGoogle ScholarPubMed. See further Ueyama, T ‘Capital, profession and medical technology: the electro-therapeutic institutes and the Royal College of Physicians 1888–1922’ (1997) 41 Medical History 150CrossRefGoogle ScholarPubMed.
14 Piper, T ‘Watch what you export: the history of medical exceptions from patentability’ in Castle, D (ed) The Role of Intellectual Property Rights in Biotechnology Innovation (Cheltenham: Edward Elgar, 2009)Google Scholar.
15 Piper, above n 12.
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19 Digby, A Making a Medical Living: Doctors and Patients in the English Market for Medicine, 1720–1911 (Cambridge: Cambridge University Press, 1994)Google Scholar.
20 Percival, T Medical Ethics (Manchester: S Russell, 1803) ch 2, section XXIIGoogle Scholar.
21 Digby, above n 19, p 63; Porter, R Health for Sale: Quackery in England, 1660–1850 (Manchester: Manchester University Press, 1989)Google Scholar.
22 See also Young, J Harvey The Toadstool Millionaires: A Social History of Patent Medicines in America before Federal Regulation (Princeton: Princeton University Press, 1961)Google Scholar.
23 See Piper, above n 14, p 444.
24 For discussion of the diverse medical marketplace of this period see Porter, above n 21, Loudon, I ‘Medical practitioners 1750–1850 and the period of medical reform in Britain’ in Wear, A (ed) Medicine in Society (Cambridge: Cambridge University Press, 1992) p 219CrossRefGoogle Scholar.
25 Loeb, above n 13, at 409.
26 Digby, above n 19; Loeb, above n 13.
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30 See various letters under ‘Inhalation of aether in surgical operations’ (1847) 11 Provincial Medical and Surgical Journal 54Google Scholar and ‘Inhalation of ether in surgical operations’ (1847) 49 The Lancet 49CrossRefGoogle Scholar (including the opinion of Queen's Counsel).
31 Any discussion of whether the internal requirements of the law were incompatible with the practice of medicine and thus prevented the development of a patenting culture in the eighteenth and nineteenth centuries must consider the question of patentability of a process. Dutton demonstrates that there was much confusion over the patentability of methods from the mid- eighteenth century. He argues that by the 1830s the position of patents for processes was clearer ‘with the grant to James Russell in 1834 and to Derosne in 1835’ but that it was not until 1842 with the decision in Crane v Price (1842) 1 WPC 393, that patentees could be fairly certain that methods and processes were suitable subjects for a patent: Dutton, HI The Patent System and Inventive Activity During the Industrial Revolution (Manchester: Manchester University Press, 1984) pp 74–75Google Scholar. More recently, Sean Bottomley has demonstrated that the patentability of methods was well-established by the late eighteenth century, in The British Patent System and the Industrial Revolution 1700–1852 From Privilege to Property (Cambridge: Cambridge University Press, 2014) ch 5Google Scholar.
32 For examples of such treatments see the account of Robert Jackson's practices on the Isle of Wight in Proceedings and Report of a Special Medical Board Appointed by His Royal Highness the Commander in Chief, and The Secretary at War to Examine the State of the Hospital at the Military Depot in the Isle of Wight, &c. &c. &c. (London: LB Seeley, 1808)Google Scholar; and Costello, E The Adventures of a Soldier; or Memoirs of Edward Costello KSF, Formerly a Non-commissioned Officer in the Rifle Brigade, and Late Captain in the British Legion (London: H Colburn, 1841)Google Scholar.
33 Most recently in Mackintosh, A ‘Authority and ownership: the growth and wilting of medicine patenting in Georgian England’ (2016) 49 British Journal for the History of Science 541CrossRefGoogle ScholarPubMed (medicines) and Jones, CL ‘A barrier to medical treatment? British medical practitioners, medical appliances and the patent controversy, 1870–1920’ (2016) 49 British Journal for the History of Science 601 (devices)CrossRefGoogle ScholarPubMed.
34 In order to identify the patents in question we took as our starting point the Abridgement of Specifications relating to Medicine, Surgery, and Dentistry AD 1620–1866 (London: Printed by Order of the Commissioner of Patents, 2nd edn, 1872)Google Scholar. We then excluded applications for improvements in artificial teeth, veterinary medicine, pill boxes, coffins and other funereal items, and general improvements in manufacture that were claimed to have an application to medicine, eg improvements in the manufacture of steel tools.
35 As such, we excluded applications by apothecaries, medical botanists, medical chemists and other inventors who would at the time have been understood to have had a legitimate role in the medical marketplace.
36 (1843) 6 & 7 Vict c 65. On the rise and fall of the useful design system see Sherman, B and Bently, L, The Making of Modern Intellectual Property Law (Cambridge: Cambridge University Press, 1999) ch 4Google Scholar.
37 See Munroe, JE Crawford The Patents, Designs and Trade Marks Act 1883 (London: Stevens & Sons 1884) p 71Google Scholar (noting that the 1883 Act ‘has, amongst other things, abolished the distinction between useful and ornamental designs’ and citing the Memorandum on the Bill to conclude that ‘such useful designs as embrace mechanical action would be treated as subject-matter for a patent’. See also L Bently and B Sherman ‘The United Kingdom's forgotten utility model: the Utility Designs Act 1843’ [1997] IPQ 265 at 278 (pointing out that after 1883 courts refused to recognise that a design's novelty could subsist in anything other than shape).
38 See eg Registered design number 250232 (BT 43/68/250232) Proprietor: Edmund Adolphus Kirby, Doctor of Medicine (portable case) 1871; Registered design number 329010 (BT 43/62/329010) Proprietor: Francis Thomas Bond, Doctor of Medicine (enclosure for a thermometer) 1878; Registered design number 346951 (BT 43/72/346951) Proprietor: Robert Foulis, Doctor of Medicine (pocket jemmy) 1880.
39 Frampton, S ‘Honour and subsistence: invention, credit and surgery in the nineteenth century’ (2016) 49 British Journal for the History of Science 561CrossRefGoogle ScholarPubMed.
40 In a small number of cases these applications did not progress beyond provisional protection, but in most cases full protection was sought and granted.
41 See, for example, 1855 no 411, John Haines White ‘An improvement in the method of applying artificial teeth’.
42 This is also consistent with the position adopted in Terrell, the UK's leading treatise on patent law. The 3rd edition published in 1895 contains nothing to suggest that methods of medical treatment were not patentable subject matter: Reynolds, WP The Law and Practice relating to Letters Patent for Inventions (London: Sweet & Maxwell, 3rd edn, 1895)Google Scholar. Even by the time of the 6th edition, published in 1921, C&W was explained on the basis that the claim in that case had been poorly drafted and not on the basis that it had established a new exclusion from patentability: Terrell, C and Jaffé, A The Law and Practice relating to Letters Patent for Inventions (London: Sweet & Maxwell, 6th edn, 1921)Google Scholar in particular at p 31.
43 See also Ventose, E Medical Patent Law – The Challenges of Medical Treatment (Cheltenham: Edward Elgar, 2011)CrossRefGoogle Scholar.
44 This essay was originally published in (1850) 2 Household Words 73. This essay is readily available in a variety of formats online, but a scanned version of the original is available at www.djo.org.uk/household-words/volume-ii/page-73.html.
45 Report from the Select Committee on the Law Relative to Patents for Inventions (332) (12 June 1829) pp 12, 17.
46 Digby, above n 19, pp 156, 190–191.
47 Bottomley, above n 31, p 166. Bottomley discusses the novelty requirement, its relation to first authorship and its interpretation by the courts in detail at pp 162–168. For a contemporary analysis see R Godson A Practical Treatise on the Law of Patents for Inventions and of Copyright (London: William Benning, 2nd edn, 1844) pp 41–49.
48 (1841) HPC 754. See also Jones v Pearce 1831 [1844] Webster's Patent Cases 121 (public use of carriage wheels).
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54 Official Papers Relating to Operations Performed by Order of the Directors of the Royal Hospital for Seamen, at Greenwich, on Several of the Pensioners Belonging Thereto, for the Purpose of Ascertaining the General Efficacy of the New Modes of Treatment Practised by Sir William Adams, for the Cure of the Various Species of Cataract, and the Egyptian Ophthalmia, Published by Order of the Directors (London: Manufactory for Employment of the Deaf and Dumb, 1814)Google Scholar.
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58 G Williams ‘From Jenner to Wakefield: the long shadow of the anti-vaccination movement’, Gresham College Lecture, 28 September 2011, available at http://www.gresham.ac.uk/lectures-and-events/from-jenner-to-wakefield-the-long-shadow-of-the-anti-vaccination-movement.
59 See generally, Crumplin, M Guthrie's War, A Surgeon of the Peninsula & Waterloo (Barnsley: Pen & Sword, 2010)Google Scholar. For contemporary views on the importance and propriety of experiment and innovation within military hospitals see Proceedings and Report of a Special Medical Board Appointed by His Royal Highness the Commander in Chief, and The Secretary at War to Examine the State of the hospital at the military depot in the Isle of Wight, &c. &c. &c. (London: Seely, 1808)Google Scholar.
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65 Burrell and Kelly, above n 1.
66 (1739) 12 Geo II c 23. For further discussion see eg Viseltear, AJ ‘Joanna Stephens and the eighteenth century lithontriptics; a misplaced chapter in the history of therapeutics’ (1968) 42 Bulletin of the History of Medicine 199Google Scholar.
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73 15 March 1802, House of Commons – Debates, p 203.
74 2 June 1802, House of Commons – Debates, p 596 per Mr Fuller MP. This was not because Jenner's invention was not a manner of manufacture, but rather because the process of inoculation (albeit using smallpox) was well-established and because his breakthrough consisted in testing a widely-held folk belief that cowpox conferred immunity to smallpox.
75 Hansard HL Deb, vol 28, cols 475–476, 3 June 1835.
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78 17 March 1802, The Parliamentary Register, p 240.
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82 Ibid.
83 Cf The Times, 11 July 1821, 2 and 5 July 1822, 2 (reporting Adams’ reward and discussions of Vetch's contribution in Parliament).
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87 Frampton, above n 29. See also Frampton, above n 39.
88 Mackintosh, above n 33, at 556–557.
89 Ibid, 546–547.
90 Jones, ‘A Barrier to Medical Treatment?’ at 606–607.
91 L Bently ‘Trade marks for medicines and the origins of English trade mark law’ Presentation at the 88th Pharmaceutical Trade Marks Group Conference in London, 17 April 2014, available at https://www.delegate.com/content/ptmg/spring/2014/documents/1_Lionel_Bently.pdf.
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94 2 June 1802, House of Commons – Debates, p 594.
95 Prior to 1852 there is a single sequence of numbers for all English patents (these numbers were in fact assigned later in the nineteenth century as no numerical system was used when these patents were granted). After 1852 British patents were assigned a number at application (not grant). These numbers run in an annual sequence, such that after 1852 both the year and the number are essential to identifying the patent.