on the production of insulin held in the public interest by the University of Toronto.27 When in the following year, Harry Steenbock discovered that ultraviolet light activated vitamin D and sought to patent this use, he found himself accused of attempting to patent the sun and the application was thrown out. Referring back to this case in the 1950s, Jonas Salk exemplified the attitude of many American doctors at the time when he refused to patent the polio vaccine.28
The issue of patents came to a head in Britain during World War II, when Ernst Chain and Howard Florey at Oxford University demonstrated penicillin's efficacy for bacterial infections and came up with a method to produce it. Chain suggested patenting the method but Florey and the rest of the group, along with the Medical Research Council that funded the research, were opposed to patenting something so important for clinical care. This was later seen by many as a lost national opportunity, and a new law was passed in 1949 that permitted patenting of medical products.
After the war, the position of an American or British company with a patented product was more secure than a German company with a process patent, but still these patents only applied to a national territory and so the monopoly they offered was limited. For example in the case of amitriptyline, the best-selling antidepressant during the 1960s, Merck held a patent on it in the United States, Roche (in fact the first to make the drug) held one in Switzerland, and Lundbeck in Denmark, as did a laboratory in Czechoslovakia.29 Given the possibility that others might be able to make the very same product, no company could plan to market the drug profitably throughout the developed world. As a result, while some compounds that came to market during the 1950s and 1960s did extremely well, it didn't make sense for companies to invest huge effort in any one compound; except within the United States and Britain, there was no protection against another company making the same drug and cutting into profits.
The important patent changes in international drug markets came in 1960 when France, the country that had been most opposed to patenting medicines, switched to product patents, followed in 1967 by Germany, the country that had developed more pharmaceuticals than all other countries combined. Once companies knew that applying for product patents in all major countries simultaneously blocked the development of any competing products, the way was cleared for the development of blockbusters. The possibility of truly global blockbusters came in the 1980s with the creation of the World Trade Organization's Trade Related Aspects of Intellectual Property Rights (TRIPS), which extended patent protection worldwide.30 If the patent is valid, this gives a company the possibility of a monopoly on a new product worldwide for twenty years from the date of filing. From that point onward, there could only be one Lipitor, one Nexium, one Prozac, and the way was open for a company to maximize the possibilities inherent in branding—and to go as global as Coca Cola.31
Compared with the vigorous debates in France that led in 1844 to a rollback in patenting medicines and the discussion of the moves that blocked the patenting of penicillin in Britain and polio vaccine in the United States, there was virtual silence in the face of these more recent changes. No one argued that patenting and commerce were incompatible with progress in science and the principles of medicine, as they had earlier.
Several historical factors probably contributed to the silence. World War II had seen heavy state investment in medical research. This investment created partnerships between scientists, universities, and pharmaceutical companies that capitalized knowledge and contributed to the development of what is now termed the knowledge economy. This led in the 1940s and 1950s to an astonishing development of truly novel and extremely effective agents, from the antibiotics and cortisone to the diuretics, antihypertensives, hypoglycemics, and psychotropic drugs, as well as the first chemotherapy for cancer. It seemed we were set on a course in which genuine developments would succeed each other for years to come. The era of snake oil was over. Academic understanding and medical research had developed as never before, laying the basis for real progress, and pharmaceutical companies had played a part in this progress. Besides, even with the change in what could be patented, the spirit of the patent laws and the expectations of the medical community at least notionally remained aimed at providing businesses with a period of monopoly but only in return for a genuine novelty that offered a distinct benefit to the public. Such an arrangement seemed to be an engine for harnessing commercial vigor to public purpose.
It hasn't turned out that way. When assessing the patent application for a drug, the examining officer is supposed to look at whether the structure of a molecule is substantially different from compounds already on the market, and whether it provides a clear clinical benefit, a solution to a problem of medical care for which we have not previously had an answer.32 It is in the interest of a drug company, however, to argue that differences that may appear to be trivial are in fact substantial and innovative, as in some cases they are. But, if a country wishes to build up its pharmaceutical sector, as the United States was intent on doing in the postwar decades, one way to do so is to make it easy to take out patents. The notions of benefit to the community and of novelty can be shaved, so that companies might be awarded patents for trivial variations on a compound that does not clearly confer any benefit in terms of health or other public value.
Against this background let us look at the patenting of Depakote. The American patent on Depakote was taken out in 1991 but the drug in fact came from a French anticonvulsant, sodium valproate, first produced in 1962. By the mid-1960s, it was known that the sedative effects of sodium valproate could be useful in the treatment of mania. When Abbott filed for a patent on semi-sodium valproate in 1991, it was on the basis that minimally reducing the amount of sodium in the compound, which was completely irrelevant to the mode of action of the drug, made it novel. Had Abbott proposed to test this compound, which was trivially different from sodium valproate, for a hitherto incurable disorder, such a stretching of the spirit of the patent law might have been warranted on the basis of clinical need. But all Abbot planned to do was to put it into trials for use in mania, with a result that was a foregone conclusion. That Depakote was granted a patent is indicative of how lax the application of American patent law had become. The reason to go to all this trouble was that sodium valproate was now off-patent—any company could make it—and without marketing exclusivity Abbott thought that it could make little or no money.
Faced with an application for its use in mania, the FDA then licensed Depakote. Surely clinicians would not use the much more expensive on-patent semi-sodium valproate over the far less costly off-patent but essentially identical sodium valproate? Such a prediction ignores the power of the kind of branding that product patents made possible. Clinicians were faced with a brand new compound, a brand new class of drug—a mood stabilizer—and a brand new illness—bipolar disorder—and they fell hard for the package. Depakote became a billion dollar global blockbuster and manic-depressive illness was consigned to the dustbin of history, greatly increasing the costs of healthcare in the process. The success of Depakote lay entirely in Abbott's ability to distinguish between two drops of water—but it was the ability to take out a product patent with global reach that made it worth their while to do so.
In the case of Zyprexa, an antipsychotic and mood stabilizer, the story is as extraordinary. The first generation of antipsychotics ran into problems in the 1970s with million-dollar legal settlements against their manufacturers for a disfiguring neurological side effect of treatment—tardive dyskinesia. This led to a period of almost twenty years when no new antipsychotic came on the market. The only antipsychotic that did not cause this problem was clozapine, but clozapine had been withdrawn in 1975 because it was associated with a higher rate of mortality than other antipsychotics.
The way forward seemed to lie in producing a safe clozapine. There were two ways to attempt this. One was to develop a drug that bound to the key brain receptors that clozapine bound to; this method underpinned the patenting of Risperdal (risperidone) and Geodon (ziprasidone). Another way was to make minor adjustments to the clozapine molecule. Tweaking a molecule risks producing a compound with all the hazards and none of the benefits of the parent. This is what Lilly did: in 1974 the company produced a series of compounds that were all abandoned because of toxicity.
As
