Monday, June 24, 2013

A History of Patenting Medicine - The Granting of Monopolies

English: United States Patent Cover from a rea...
English: United States Patent Cover from a real patent issued (Photo credit: Wikipedia)
The following is a brief excerpt from "Old English Patent Medicines in America", written about 100 years ago. It's an interesting view of history and how patents have changed the world and where it all came from.

_Bateman's Pectoral Drops, Godfrey's Cordial, Turlington's Balsam of
Life, Hooper's Female Pills, and a half-dozen other similar nostrums
originated in England, mostly during the first half of the 18th
century. Advertised with extravagant claims, their use soon spread to
the American Colonies._
_To the busy settler, with little time and small means, these
ready-made and comparatively inexpensive "remedies" appealed as a
solution to problems of medical and pharmaceutical aid. Their
popularity brought forth a host of American imitations and made an
impression not soon forgotten or discarded._

In 1726 King George I granted a patent for the making and selling of
Dr. Bateman's Pectoral Drops. The patent was given not to a doctor, but
to a business man named Benjamin Okell. In the words of the patent,[3]
Okell is lauded for having "found out and brought to Perfection, a new
Chymicall Preparacion and Medicine..., working chiefly by Moderate
Sweat and Urine, exceeding all other Medicines yet found out for the
Rheumatism, which is highly useful under the Afflictions of the Stone,
Gravell, Pains, Agues, and Hysterias...." What the chemicals
constituting his remedy were, the patentee did not vouchsafe to reveal.
[3] Benjamin Okell, "Pectoral drops for rheumatism, gravel,
etc.," British patent 483, March 31, 1726.

The practice of patenting had begun in royal prerogative. Long
accustomed to granting monopoly privileges for the development of new
industries, the discovery of new lands, and the enrichment of court
favorites, various monarchs in 17th-century Europe had given letters
patent to proprietors of medical remedies which had gained popular
acclaim. In France and the German States, this practice continued well
through the 18th century. In England, where representative government
had progressed at the expense of the personal prerogative of the
sovereign, Parliament passed a law in 1624 aimed at curbing arbitrary
actions like those of James I and Charles I. The statute declared all
monopolies void except those extended to the first inventor of a new
process of manufacture. To such pioneers the king could grant his
letters patent bestowing monopoly privileges for a period of 14 years.
That the machinery set up by this law did not completely curb the
independence of English sovereigns in the medical realm is indicated by
the favor extended Dr. Weir, who successfully sought from James II a
privileged position for Anderson's Scots Pills. This kingly grant is
not included in the regular list, and the Glorious Revolution of 1688
brought an end to such an exercise of royal power without consent of
Parliament. A list of patents in the medical field later published by
the Commissioners of Patents[4] includes only six issued during the
17th century, four for baths and devices, one for an improved method of
preparing alum, and one for making epsom salts. The first patent for a
compound medicine was granted in 1711, and only two other proprietors
preceded Benjamin Okell in seeking this particular legal form of
protection and promotion.

As early as 1721, Bateman's Pectoral Drops were being regularly
advertised in the _London Mercury_. The advertisements announced: "Dr.
Bateman's Pectoral DROPS published at the Request of several Persons of
Distinction from both Universities...." The Drops, priced at "1 s. a
Bottle," were "Sold Wholesale and Retail at the Printing-house and
Picture Warehouse in Bow Churchyard," and likewise "in most Cities and
celebrated Towns in Great Britain." "Each Bottle Seal'd with the Boar's
Head." So stated the advertisement, which itself contained a crude cut
of this Boar's Head seal.[5] Elsewhere in this issue of the _Mercury_,
we learn that John Cluer, printer, was the proprietor of the Bow
Churchyard Warehouse. This same John Cluer, along with William Dicey
and Robert Raikes, were named in the 1726 patent as "the Persons
concerned with the said Inventor," Benjamin Okell, who, with him,
should "enjoy the sole Benefit of the said Medicine." It was this
partnership which was to find the field of nostrum promotion especially
congenial and which was to play an important transatlantic role. Soon
after securing their patent, the proprietors undertook to inform their
countrymen about the remedy by issuing _A short treatise of the virtues
of Dr. Bateman's Pectoral Drops_.[6]

[4] British Patent Office, _Patents for inventions: abridgements
of specifications relating to medicine, surgery, and dentistry,
1620-1866_, London, 1872.
[5] _London Mercury_, London, August 19-26, 1721.
[6] _A short treatise of the virtues of Dr. Bateman's Pectoral
Drops_, New York, 1731. A 36-page pamphlet preserved in the
Library of the New York Academy of Medicine. This is an American
reprint of an English original, date unknown.

It was the 18th century, and the essay was in fashion. The proprietors
prepared a didactic introduction to their treatise, phrased in long and
flowery sentences, in which modesty was not the governing tone. The
arguments ran like this: that the "Universal Good of Mankind" should be
the aim of "every private member"; that nothing is so conducive to this
general welfare as "HEALTH"; that no hazards to health are more direful
than diseases such as "the Gout; the Rheumatism; the Stone; the
Jaundice," etc., etc.; that countless men and women have succumbed to
such afflictions either because they received no treatment or suffered
wrong treatment at "the Hands of the Learned"; that no medicine is so
sure a cure as that inexpensive remedy discovered as a result of great
"Piety, Learning and Industry" by one "inspir'd with the Love of his
Country, and the Good of Mankind," to wit. "Dr. BATEMAN'S Pectoral

Then followed seven chapters treating the multitude of illnesses for
which the Drops were a specific. Finally, the pamphlet cited "some few,
out of the many thousands of Certificates of Cures effected by these
DROPS...." Even so early was the testimonial deemed a powerful

No more could Okell, Cluer, Dicey, and Raikes escape competition than
could the proprietors of other successful nostrums. In 1755 they went
to court and won a suit for the infringement of their patent, but the
damages amounted to only a shilling. Even after the patent expired, the
tide of publicity flowed on.[7]

[7] A broadside, issued in London, _ca._ 1750, advertising "Dr.
Bateman's Drops," is preserved in the Warshaw Collection of
Business Americana, New York. Later reprints of this same
broadside are preserved in the private collection of Samuel Aker,
Albany, New York, and in the Smithsonian Institution.

Competition was also lively in the 1740's among some half a dozen
proprietors marketing a form of crude petroleum under the name of
British Oil. Early in the decade Michael and Thomas Betton were granted
a patent for "An Oyl extracted from a Flinty Rock for the Cure of
Rheumatick and Scorbutick and other Cases." The source of the oil,
according to their specifications, was rock lying just above the coal
in mines, and this rock was pulverized and heated in a furnace to
extract all the precious healing oil.[8] This Betton patent aroused one
of their rivals, Edmund Darby & Co. of Coalbrook-Dale in Shropshire.
Darby asserted that it was presumptuous of the Bettons to call their
British oyl a new invention.[9] For over a century Darby and his
predecessors had been marketing this self-same product, and it had
proved to be "the one and only unrivall'd and most efficacious Remedy
ever yet discovered, against the whole force of Diseases and Accidents
that await Mankind...." For the Bettons to appropriate the process and
patent it--and even to claim in their advertising cures which really
had been wrought by the Darby product--was scandalous. Worse than that,
said Darby, it was illegal, for in 1693 William III had granted a
patent to "Martin Eele and two others at his Nomination for making the
same Sort of Oyl from the same Sort of Materials."

 Evidence to
substantiate his belief in the Betton perfidy was presented by Darby to
George II, who had the matter duly investigated.[10] Being persuaded
that Darby was right, the king and his councillors, in 1745, vacated
the Betton patent. This victory seems not to have boomed the Darby
interests, and this defeat seems not to have ruined the Bettons. During
the succeeding century, the Betton patent was published and republished
in advertising, just as if it had never fallen afoul the law. From
their battles with the Oil from Coalbrook-Dale and other British Oils
marketed by other proprietors, the Bettons emerged triumphant. In the
years to come, patent or no, the Bettons British Oil was to dominate
the field.

[8] Michael and Thomas Betton, "Oil for the cure of rheumatic and
scorbutic affections," British patent 587, August 14, 1742.
[9] Edmund Darby & Co., _Directions for taking inwardly and using
outwardly the company's true genuine and original British Oil;
prepared by Edmund Darby & Co. at Coalbrook-Dale, Shropshire_,
ca. 1745. An 8-page pamphlet preserved in the Library of the
College of Physicians, Philadelphia, Pennsylvania.
[10] _London Gazette_, London, March 1, 1745.

The year after the Bettons had secured their patent, another was
granted to John Hooper of Reading for the manufacture of "Female Pills"
bearing his name.[11] Hooper was an apothecary, a man-midwife, and a
shrewd fellow. This was the period in which the British Government was
increasing its efforts to require the patentee to furnish precise
specifications with his application.[12] When Hooper was called upon to
tell what was in his pills and how they were made, he replied by
asserting that they were composed "Of the best purging stomatick and
anti-hysterick ingredients," which were formed into pills the size of a
small pea. This satisfied the royal agents and Hooper went on about his
business. In an advertisement of the same year, he was able to cite as
a witness to his patent the name of the Archbishop of Canterbury.[13]

[11] John Hooper, "Pills," British patent 592, July 21, 1743.
[12] E. Burke Inlow, _The patent grant_, Baltimore, 1950, p. 33.
[13] _Daily Advertiser_, London, September 23, 1743.

Much less taciturn than Hooper about the composition of his nostrum was
Robert Turlington, who secured a patent in 1744 for "A specifick
balsam, called the balsam of life."[14] The Balsam contained no less
than 27 ingredients, and in his patent specifications Turlington
asserted that it would cure kidney and bladder stones, cholic, and
inward weakness. He shortly issued a 46-page pamphlet in which he
greatly expanded the list.[15] In this appeal to 18th-century
sensibilities, Turlington asserted that the "Author of Nature" has
provided "a Remedy for every Malady." To find them, "Men of Learning
and Genius" have "ransack'd" the "Animal, Mineral and Vegetable World."
His own search had led Turlington to the Balsam, "a perfect Friend to
Nature, which it strengthens and corroborates when weak and declining,
vivifies and enlivens the Spirits, mixes with the Juices and Fluids of
the Body and gently infuses its kindly Influence into those Parts that
are most in Disorder."

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