Society’s Need for Patents to University Research Workers Especially on Food and Drug Inventions
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GEORGE B. SCHLEY Looking forward, they foresaw, MONG the powers which the perhaps only dimly, the vast field Constitution of the United 801 Hume-Mansur Building, Indianapolis, Ind. open for the inventor to explore. S t a t e s gives to Concrress. They foresaw that the inventor one is for a speGfically s t a t e l p u r l would more eagerly explore that field if assured of adequate pose. That one is the power to grant patents and copyrights. reward. They recognized that the inventor, when he had What is that purpose? Is it the benefit which the author made a successful exploration into that field of the unknown, or inventor may get? Emphatically not! The sole fundamental purpose of patents and copyrights had a boon to confer, something to give to society, someis the benefit to the public. The reward to the author or the thing which society wanted, something which society must inventor is merely a means, to accomplish the desired end of have. They recognized that if the inventor could be perbenefiting the public. suaded to tell the public of his invention instead of keepIt is to that end that the Constitution provides that “the ing it to himself, the public would be the gainer. Congress shall have power , to promote the progress of They, and Congress by its statutes, provided the means science and useful arts, by securing for limited times to authors of persuading the inventor to tell--by the grant to him and inventors the exclusive right to their respective writings of letters patent (a document made patent to all, as disand discoveries.” I n giving this power to Congress, thus tinguished from something kept secret) in which he tells the specifically for the single ultimate purpose of obtaining benepublic fully what his invention is but receives the right to fits for the public, the authors of the Constitution looked on exclude others from making, using, or selling that invention human nature as it is, not as altruists might think it ought to for a few years, after which the public owns the invention. be. They recognized the profit motive-the human desire I n this way society can have the invention without giving for tangible reward-as a mighty force in man’s actions, and up anything it had ever possessed, simply by making the as a proper one. They sought to turn that profit motive inventor secure foi a time in what was already his by exto the benefit of society. cluding others for a few years from that which they had They looked both backward and forward. They saw both never had and might otherwise never get-a trade of new good things and bad in the past, they foresaw immense knowledge in return for a period of exclusiveness. (That progress in the future if those good things were preserved and period is now 17 years with no extension, the approximate the bad avoided. mean between the earlier regular 14-year and the extended Looking backward, they saw, on the one hand, the loss 21-year periods, respectively two and three times the 7-year which society suffered from the keeping of inventions secret; period of apprenticeship.) they saw that that secrecy was inevitable unless it was made They did not seek to compel the inventor. He could still worth while to the inventor to forego it; they saw that rely on secrecy, at his own peril if it failed. He still can, and society lost the benefit of inventions unless the inventor was sometimes does. The Constitution and the laws made somehow compensated for his intellectual labor and for under it merely seek to lead him to give up that secrecy in making the results of that labor available to the public. return for a temporary right to exclude others. Such a On the other hand, they saw the loss which society suffered temporary right is not a monopoly in the old sense of the from the granting of monopolies, sometimes in perpetuity, a t law. It is only a recompense to the inventor for telling the whim of the king and for other things than inventions; society something it did not know. If the invention is of for instance, for commodities already in common use, such as little value, the inventor receives little from his exclusive salt or flour, which the public had previously had the free right right. If it is of great value, the recompense to the inventor to enjoy, is correspondingly large. The right to exclude others for a With these things in mind, they saw how the British courts, term is as nearly an exact measure of the commensurate and in due course the British Statute of Monopolies, had recompense to the inventor for his disclosure as it seems upheld as proper the monopolies granted for inventions new possible to devise. in Britain, since such grants took nothing from the public So the patent system was established-to grant patents. but gave the public something which it had not possessed; Only by the granting of patents can the system work. Only but had struck down as invalid, as something which it was by the granting of patents can the profit motive, the desire beyond the power of the king to give and which the king which we all have for reward, be effectively harnessed for the would not have given if his ministers had not wrongly benefit of society. Without the grant of patents, we would advised him, the monopolies granted for things already inevitably revert to the secrecy which obtained in the dark known and in use in Britain, since such grants took away ages. The presentation of new discoveries to the public from the public something it had and gave it nothing in and for the public benefit would be greatly retarded. The return. I n a word, they saw that the British courts had progress of science and useful arts would be held back instead held valid those monopolies which gave to the public, but of being promoted. had held void those monopolies which took from the public. How well the Constitution makers builded! It is probably
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more to that one constitutional provision about patents and the wise laws made under it than to any other single factor that in the hundred and fifty years since the Constitution was adopted this country has become the most prosperous country on earth.
Patents to University Research Workers In the same way in which the grant of patents under this wise provision of the Constitution has worked for the public benefit to an almost immeasurable degree with inventions generally, so does it work for the public benefit with inventions made by university research workers. Let us look at this specific question just as the writers of the Constitution looked at the general question. Let us look at human nature as it is, and not as altruists may think it ought to be. Let us give full credit to those investigators who seek knowledge for its own sake, with no thought of reward; but a t the same time let us recognize that in large measure the advance of civilization is through the effort of the individual seeking his own betterment. For society’s sake let us not discourage that effort in any part of the field of inventions. Probably our greatest potential source of inventions is our group of university-trained research workers, those working inside as well as those working outside the universities. In the forefront among these are the chemists; for a constantly increasing number of patents are granted on chemical inventions, and a constantly increasing number of patent examiners are required to examine the patent applications on chemical inventions. The patents granted on chemical inventions now constitute perhaps the most important single group. Society needs the inventions of these university research workers-of these chemists. It needs to have those inventions made. It needs to have them made available. It must have them. Yet if society would have those inventions, society must pay for them. If it is willing to compensate the artisan with patents, why should it not similarly compensate the professor? It is cutting its own throat if it refuses to do so. Society need not delude itself with notions of what the unselfish research worker ought to do-as a matter of ethics, or even as a matter of scientific recognition. The university man does indeed do much with no thought of advantage to himself. But, by and large, he will do more, and tell society more, if there is the added incentive of personal advantage; and society will benefit. There is no cause for him to scorn personal advantage, or for him to permit others to scorn it for him. He is made of the same clay as other men. He is as well entitled as is his neighbor to the much-talked-of high standard of living, and will work to get it. Ethics or no ethics, it is no disparagement that he wants things; for, as has been well said, “the man who wants least in the world is of least use to the world.” It is right for him to want things. He wants them for hi5 family, for his research group, for himself, as well as for the continuance and the bettering and the expansion of his research program. He should want these things. Let us put his wanting to the benefit of society. Let us not, by denying him rewards commensurate with the results he obtains by his labors, decrease or destroy the incentive or any part of it that urges him on to greater efforts. The need of society demands that the patent system, which has promoted the progress of science and the useful arts by rewarding inventors in general, shall not be prevented from exerting its power for good on the university research worker. Society’s need demands that the university research worker shall not be repressed by taking away any incentive open to others, but shall be given every possible incentive to make inventions, and to make them available to the public, under the same system which has proved its efficacy.
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Indeed, for the very reason that the university research worker has such great potentialities as an inventor, it is all the more essential that society take every step possible to make those potentialities realities, and to get the benefit of the realities by patents. It is this need by society that is foremost in this matter, that compels society for its own good to grant patents to university research workers just as to others-indeed, for its own good compels it with even greater force than in the case of those who have lower potentialities. It is right because it works. It works with scientists of the highest type. Galileo, professor of mathematics a t Padua, in ,1593 petitioned the Doge of Venice for a patent on his invention of raising water and irrigating land, which he said had been “discovered by him with great labor and much expense;” and the Doge granted the petition by authority of the Council of the Republic of Venice. Huygens invented and patented the pendulum clock in 1657. Pasteur obtained United States patents in 1873. Many Nobel prize winners have obtained patents, and many of them were university professors. Among them were Banting, Compton, Einstein, Langmuir, Millikan, and Soddy. Indeed, the Nobel prizes themselves were made possible by patented inventions. The very fact that these illustrious scientists have sought and obtained patents refutes any contention that the university worker will forsake the straight and narrow path of research in pure science for the more inviting avenues of applied science which he hopes may lead to wealth. It is true that a discovery in pure science is ordinarily not patentable. It is true that such a discovery, unpatentable and usually financially unremunerative in itself , is often the most important result of research, both for its own sake and because of the resultant opening of doors to the making of inventions utilizing it. But discovery in pure science and invention in applied science go hand in hand. Each helps the other. Income obtained from university inventions can be used, and is used, to further discovery in pure science. Our university scientists need no taskmasters to compel them to research in pure science. They must be their own masters. They must be left free to pursue the investigations they themselves choose. They can be trusted, without taking away from them incentives which society gives to other men. That the reward which a patent may give does not in fact distract them from pure science, and from the joy they feel in pure discovery, is abundantly shown by the achievements which many who have obtained patents have made in pure science.
Publication OS. Patents Often it is said that society obtains just as much benefit, and even more, from publication of a research worker’s discovery or invention in a scientific paper as from a patent. But society does not, for several reasons: First, mere publication creates no rights of exclusiveness. Whether we like it or not, a manufacturer will more readily take up and make available to the public a patented invention than an unpatented one. He cannot afford to take it up unless he can get some advantage from it, some exclusiveness by which he will have a t least a chance of making a profit without being beset by those who would take advantage of his pioneering. It is a well-recognized fact that inventions which are merely published, and by reason of the lack of patents are thrown open equally to all, are not readily adopted unless they are of the greatest importance. In this connection Elihu Thomson said: I have known some well-meaning scientific men to look askance at the patenting of inventions, as if it were a rather selfish and ungracious act, essentially unworthy. Publish
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an invention freely, and it will almost surely die from lack of interest in its development. It will not be developed, and the world will not be benefited. Patent it, and, if valuable, it will be taken up and developed into a business. Second, mere publication may not prevent some one else from getting a patent. and from sustaining it in court. Often the published paper is lost to the world, for ordinarily it has not the availability of a patent. Moreover, the research worker’s description too often falls short of the full disclosure required to prevent a patent from issuing to another; many scientific men are so modest, and so fearful of telling something already known, that they often take for granted and fail to say the very things that are essential from a patent standpoint. Too frequently it is the very thing which the research man thinks is well known that it is impossible to establish, simply because the author did not say it. Third, the research paper is often insufficient for commercial development, not only because it grants no exclusiveness or does not prevent the possibility of a patent to some one else, but because the paper has failed to give a sufficient description of the invention. Fourth, many papers, even by the most high-minded research workers, deliberately refrain from telling important and sometimes essential details. Although it is true that sometimes the descriptions in patents also deliberately omit important things, they are not so likely to do so; to conceal any essential constitutes ground for holding a patent void. Fifth, a patent spurs other inventors in a way which a publication does not. Because a patent excludes the other inventor and closes that avenue, the other inventor searches for another avenue and often finds it. He makes what has been called a ‘(circuminvention.” Often the circuminvention is more valuable than the original invention. As a result, society has two inventions; if there had been no patent on the first invention, it would have had but one. The purpose of the patent system is to grant patents. In order for society to obtain the benefits which patents alone can give, patents must be granted to university research workers.
Foundations The university research worker, however, is not a mere free-lance worker. He should be encouraged to take out patents for the good of society. He should benefit individually from those patents to spur him on. But because he is only part of an organization which makes his research possible, it is necessary that the organization as a whole be taken into account, perhaps even more than the research worker himself. The “foundations” by which this is now sometimes done are familiar to all. Too few of our universities have such foundations affiliated with them; their influence for the good of research is unbounded. Probably all these foundations provide, with variation in detail, for several fundamentals in the promotion of’research. 1. The provision of funds, by gift or otherwise, for research. 2. The obtaining of patents by the research inventors, and the assignment of those atents to the foundation. 3. The granting of Ecenses to manufacturers under those
patents. 4. The use of the funds obtained from those licenses for: a. The rebuilding of the funds already expended on that particular research project. b. The provision of funds for other research projects, sometimes allied to the original one but by no means necessarily so; and research in pure science is well included among those research projects. c. The rewarding of the research worker and his associates. Sometimes this is on a prefixed percentage, sometimes on some basis that permits variation in accordance with the character of
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the research. But in every case it should be such that an incentive is created, so that that incentive will benefit both society and the university. If in a few instances the resultant income to the research worker reaches large figures, do not begrudge it to him; but be happy with him that his research has been fruitful t o him, to the university, and to society. Although some universities have foundations, and in the spirit of our Constitution try to create incentives to the research worker in order to promote the progress of science and useful arts, other universities discourage patents and try to prevent the research worker from obtaining any reward for his efforts. Are these other universities wise, either from a public or from a selfish standpoint? It is thought that they are not. They hamper research instead of furthering it. They retard progress instead of promoting it. And from their own selfish standpoint, are they not likely to lose their most able men, who will go where their ability will be recognized and rewarded?
Patents on Foods and Drugs The need of society for the grant of patents to university research workers extends to the grant of patents on foods and drugs. Again it is a matter of human nature as it is. Society will fare better, will have greater advances made in the field of foods and drugs, by granting patents on foods and drugs than by refusing to do so. Even the physician, with his unquestionable high sense of duty, is spurred into greater activity by the hope of reward. The need of society is again the controlling factor. It demands the benefit which the incentive given by such patents creates. It is not necessary to go to other reasons to justify food and drug patents-such as control of purity, and protection of the public against exploitation. Those reasons are sound. But the real justification for food and drug patents is that society needs them, needs the impetus which the possibility of obtaining them provides, in order to promote the progress of science and useful arts in this allimportant field. Society cannot afford not to have such patents. If it does not permit them, it will lose many valuable inventions. They will not be made, or if made will be kept secret, or if not kept secret will not become available to society because the manufacturer cannot afford to develop them. This tendency to keep an invention secret, even when it relates to matters of human health, is illustrated by an occurrence reported in the Journal of the House of Representatives of the United States Congress in its first session (September 18, 1789, page 143): A petition of William Hoy was presented t o the House and read, setting forth that he has discovered an infallible cure for the bite of a mad dog, and praying that an adequate compensation may be made him for his labour and assiduity in the discovery, which in that case he will make public. Ordered, That the said petition do lie on the table.
The Journal does not show that Congress ever gave Mr. Hoy the patent he requested. So Mr. Hoy kept his discovery secret, and we still have no infallible cure for the bite of a mad dog. Although that purported discovery may have been quackery, it shows how secrecy will inevitably often prevail in the absence of a reward. What if there are occasional patents granted on quack medicines, although the Patent Office makes most strenuous efforts to prevent that? In this connection, the comment by the famous chemist Gay-Lussac in a speech in the French Parliament in 1843 is most pertinent: I admit that the quacks are a plague t o society. But they pursue their fraudulent operations whether they have patents
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or not, and in all imaginable forms. If we should in this act exclude all trades in which quackery exists, the statute would be quite uselass. There exist then no reasons for distinguishing the pharmaceutical preparations from the other inventions which can be protected by patent.
It is true that there are some who think that because foods and drugs are so much bound up with public health there should be no patents on inventions in that field. They would put inventions that are beneficial to health in the same class with those that are injurious, and deny patents on the former just as on the latter. They contend, in effect, that although society properly should pay for other inventions, of less value to society, it should confiscate food and drug inventions without paying for them because they are of such great value to society. They say that the inventor in the field of foods and drugs should be unselfishly motivated by the good of the public, with no thought of profit for himself. Perhaps he should. Undoubtedly he often is so motivated. But is he wise, from the very standpoint of the good of the public? Disregarding any question of honesty, would society be wise in fostering that idea? Does his unselfishness, and would any notion by society that he must be unselfish, accomplish its purpose? Does that unselfishness, and would that notion, do as much for society as a patent would do? No! That unselfishness on the part of the inventor defeats its own purpose. The new food or drug will in most cases become more readily and more quickly available to the public with the help of a patent than with no patent. The very giving of it to the public may deprive the public of it. The manufacturer may feel unable to take up the matter, with its possibilities if not probabilities of loss, unless he has the protection of a patent; for the cost to the reputable manufacturer of making a new drug available to the public is often enormous, on account of the extensive chemical, pharmacological, and clinical tests which must be made before the effectiveness and safety and limitations of the new drug can
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be established with sufficient certainty to warrant offering it to the public, and on account of the inability of more than one proposed drug in ten to survive those tests, I n addition, society is more likely to get a high-grade product at the outset, and the invention is thus more likely to be favorably accepted by the public so that it may really serve society, if at most only a few carefully selected manufacturers are licensed. Furthermore, even if the high-minded attempt to give an invention to the public without reward were always a real benefit to the public as to that particular invention, any notion by society that there must be such unselfishness on the part of the inventor of a new food or drug would hold back development. Although many research workers in the field of foods and drugs seek no personal reward, why should that high-mindedness on their ’ part lead society to deprive itself in that field of the motivating profit motive which gives it the benefit of so many inventions, in that field as well as in others? The interest of the public demands that inventions be made in the field of foods and drugs, and that those inventions be made available to the public. Probably this is true in this field even more than in other fields, because the maintenance of the public health is perhaps as important a function of government as can be conceived. With this in view, it would be directly contrary to the public interest to remove from the field of foods and drugs the incentive of exclusiveness which has proved so effective in the field of inventions generally. For the very purpose of serving society, therefore, it is essential that the incentive of exclusive rights be kept open for the inventor in the field of foods and drugs, not for his benefit but for the benefit of society, so that he will labor more diligently and society may ultimately have the fruits of that labor. RECEIVEDSeptember 13, 1937.
re Patents on Foods and Medicinals in the Public Interest? H. L. RUSSELL The great majority of patents F T H E R E is a n y one do not even pay their own Wisconsin Alumni Research Foundation, Madison, Wis. thing that e x p e r i e n c e cost, much less make money teaches in the handline: for the patentee or the owner of patent matters, it is tha; of the patent. Not infrequently this may be due to the fact each patent problem must be studied individually; that it that the inventor is so handicapped financialIy that he has would not be the part of wisdom to attempt to classify them insufficient resources with which to develop the patented idea. by groups and say, for instance, that all medical discoveries Seldom will he find anyone willing to risk money on developor inventions should or should not be patented. ing the idea unless this backer is to get the lion’s share of any The primary idea of the Government in granting amonopoly prospective returns. in the form of a patent is that the discovery will be developed, in the long run, in the public interest. But the mere invenCommercially Profitable Patents tion of a useful process or product and securing a patent The public has a grossly exaggerated idea of the returns thereon stops far short of accomplishing anything permanent derived from the commercial exploitation of patents. The in the public interest. To be of real value to the public, the successful cases that find their way into the press are few and idea must not only be perfected so as to be commercially far between. One hears nothing of the thousands of patents practicable, but it must actually be put to work. For this that are never developed a t all. reason the Government extends the period of monopoly to The director of research of a well-known industrial laborasevente6i years. tory furnished the following figures on the experience of his The ordinary course of development of a patentable idea own organization: I n the course of twenty-odd years, his involves years of effort before it can be commercially applied; company had concerned itself with the development of about until it is successfully reduced to business practice, it cannot three hundred and thirty patents. With only ten of these be expected to yield any income of substantial importance.
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