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Patents, Priority Disputes and the Value of Credit: Towards a History (and Pre-History) of Intellectual Property in Medicine

Published online by Cambridge University Press:  17 May 2012

Sally Frampton
Sally Frampton
Affiliation:
Sally Frampton, PhD student, The Wellcome Trust Centre for the History of Medicine at UCL, 183 Euston Road, London NW1 2BE, UK. Email: [email protected]
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In recent years, intellectual property in medicine has generated much debate, becoming one of the most significant issues in modern day medical ethics and linking in with wider discussions about the commercialisation of medicine and the commodification of the human body. Recent high-profile cases in the USA have centred on gene patenting, that having been enthusiastically practised by universities and biotechnology companies, is now having its legality questioned. The unexpected March 2010 ruling of a federal court against Myriad Genetics, which invalidated the company's patents on the BRCA1 and BRCA2 genes, has highlighted the complexities that now govern the ethical and legal tenure of asserting property rights over biological material.

Keywords

Intellectual PropertyNineteenth-Century SurgeryOvariotomyCharles ClayThomas Spencer Wells
Type
Articles
Information
Medical History , Volume 55 , Issue 3 , July 2011 , pp. 319 - 324
Copyright
Copyright © The Author(s) 2011. Published by Cambridge University Press

References

1 For an overview of the case and March 2010 ruling see: Bob Carlson, ‘Surprise District Court Ruling Invalidates Myriad Genetics’ BRCA Patents, But Appeal is Pending’, Biotechnology Healthcare, 7, 2 (2010), 8–9.

2 The term ‘intellectual property’ is relatively novel, not emerging as part of regular legal vernacular until the end of the nineteenth century. However, it is used here to broadly encompass a range of issues surrounding the ownership of intellectual labours, from patenting to trade marking, to non-legal methods of managing and recognising credit such as publication, peer recognition and pecuniary reward. The term ‘intellectual property’ is arguably anachronistic for historians working on periods before the twentieth century, but nonetheless, for the purposes of this paper, it expresses many of the facets of knowledge ownership.

3 This is captured most recently in the work of Peter Galison, Mario Biagioli, Christine MacLeod and Graeme Gooday.

4 Christine MacLeod, Heroes of Invention: Technology, Liberalism and British Identity, 1750–1914 (Cambridge: Cambridge University Press, 2007), 2.

5 Fritz Machlup and Edith Penrose, ‘The Patent Controversy in the Nineteenth Century’ Journal of Economic History, 10, 1 (1950), 1–29: 28–9.

6 For examples of literature arguing for greater reward for intellectual labours in medicine, see James A. Dorr, ‘Are Improvements in Medicine and Surgery Proper Subjects of Patents?’, The Lancet, 49, 1237 (1847), 523–4 and Anon., Edinburgh Review, 136, 278 (1872), 488–515: 514–15.

7 Anon., ‘The Theory of Professional Remuneration’, British Medical Journal, 1, 371 (1868), 122–3.

8 T.A.B Corley: ‘Interactions Between the British and American Patent Medicine Industries, 1708–1914’, pamphlet reprint from Business and Economic History, 16 (1987), 111–29: 112.

9 One example is Birmingham surgeon Robert Lawson Tait who was adamant that Wells had stolen credit from earlier ovariotomists. See Lawson Tait, ‘The Revival of Ovariotomy’, British Medical Journal, 2, 1249 (1884), 1165.

10 Clay was well respected by American ovariotomists. See Edmund Peaslee’s defence of Clay’s legacy in: Edmund Randolph Peaslee, Ovarian Tumors: Their Pathology, Diagnosis and Treatment, Especially by Ovariotomy (New York: D. Appleton, 1872), 272

11 During the 1830s a number of provincial practitioners, such as William West and William Jeaffreson, began to remove diseased ovaries through small abdominal incisions; however the status of these operations as ‘ovariotomies’ was disputed by Clay, due to the lack of major abdominal section. Some ascribed the first successful ovariotomy in Britain to Scottish surgeon John Lizars who had removed a diseased ovary in 1825. Clay acknowledged Lizars and credited himself only as the first to have performed ovariotomy in England. See Charles Clay, ‘Dr. Clay’s Reply to Dr. Granville on Ovarian Extirpation’, Medical Times, 8, 204 (1843), 326–7.

12 During their exchange of letters in The Lancet during 1865, Wells and Clay quibbled a great deal over the minutiae of their disclosed statistics – for instance, whether incomplete or slightly different operations should be included or not – however, both admitted broadly similar success rates.

13 T. Spencer Wells, Diseases of the Ovaries: Their Diagnosis and Treatment: Vol. 1 (London: John Churchill & Sons, 1865), x.

14 Charles Clay, ‘On Ovariotomy and Ovariotomists’, The Lancet, 85, 2165 (1865), 200–2: 201.

15 Charles Clay ‘The History of Ovariotomy’, British Medical Journal, 2, 1020 (1880), 109–10: 110.

16 Thomas Schlich has discussed in detail the application of tacit knowledge to surgery. See Thomas Schlich, Surgery, Science and Industry: A Revolution in Fracture Care, 1950s–1990s (Basingstoke: Palgrave Macmillan, 2002), 65–85.

17 Charles Clay, ‘The Ovariotomy Controversy’, The Lancet, 85, 2171 (1865), 380.

18 Wells, op. cit. (note 13), xiii.

19 In UK law, methods – for example, a business or medical diagnostic method – are unpatentable. In the USA, the case of Bilski vs Kappos (2010) has highlighted the current ambiguities regarding the patentability of methods. The case saw the Supreme Court reject the principle that patentability could only be determined by the ‘machine or transformation test’ – i.e., that a process has to be tied to a particular machine, or involve the transformation of an article into a different state – potentially paving the way for a system in which there will be more patent protection for non-material innovations.