Owning the Sun

1. Patents: A Contested History of Medical Monopoly

If the state ceases to grant, enforce, and extend exclusive rights to the production and sale of drugs and medicines, the power to spin private gold from public investment and human illness combusts and disappears, like the purified bone dust phosphorus of alchemy legend.

Alchemy to Monopoly. The book traces the history of medical monopolies from ancient alchemy to modern pharmaceutical giants, arguing that the industry's wealth is not due to scientific innovation but to the political power of patents. Patents, initially conceived as temporary privileges to spur innovation, have become tools for creating and protecting exclusive markets, often at the expense of public health.

Early Opposition. From the English Statute of Monopolies in 1624 to the American Revolution, there has been consistent opposition to monopolies, particularly in essential areas like medicine. Figures like Thomas Jefferson and Benjamin Franklin were skeptical of patents, viewing knowledge as a public good that should be freely shared.

Jacksonian Shift. The Jacksonian era saw a shift towards viewing patents as simple property rights, leading to the rise of "patent sharks" and corporate laboratories that used patents to stifle competition. This historical context reveals that the current system of medical monopolies is not inevitable but a result of specific political and economic choices.

2. Ethical Medicine vs. Commercial Interests

Freely have I received, freely have I given, and I desire nothing in return.

Sacred Origins. For centuries, medical knowledge was considered a sacred gift, freely available to all. This ethos shaped early medical ethics, with physicians and pharmacists rejecting patents and secrecy as incompatible with their duty to serve humanity.

Ethical Divide. In the 19th century, a split emerged between "ethical" medicine, which prioritized public benefit over private gain, and the "patent medicine" industry, which peddled dubious cures for profit. This ethical code was particularly strong in Philadelphia, where medical and pharmaceutical associations condemned patents as "derogatory to professional character."

German Influence. The arrival of German chemical companies in the late 19th century challenged this ethical code, as they aggressively pursued patents on essential medicines like Aspirin, leading to conflicts with American druggists and raising questions about the morality of medical monopolies. This tension between ethical principles and commercial pressures continues to shape the debate over drug patents today.

3. The Erosion of the Patent Taboo

A thing patented was a thing divulged.

Stewart's Heresy. Francis E. Stewart, a physician and pharmacist, challenged the patent taboo by arguing that patents could help fund research and ensure quality control. His "working bulletin" system sought to balance commercial interests with ethical obligations.

German Innovation. German firms like Bayer transformed the U.S. drug economy by patenting chemical processes and products, leading to the rise of branded medicines like Aspirin. This challenged the traditional ethical code and forced American medical gatekeepers to confront the changing landscape of scientific medicine.

Adrenalin Controversy. Parke-Davis's patents on Adrenalin sparked further debate, with competitors like Eli Lilly arguing against drug product patents. The case highlighted the tension between rewarding innovation and ensuring access to essential medicines.

4. The New Deal's Fight Against Corporate Power

The liberty of a democracy is not safe if the people tolerate the growth of private power to a point where it becomes stronger than their democratic state itself.

FDR's Antitrust Push. Franklin Delano Roosevelt's New Deal initially focused on centralized economic management but later shifted towards promoting competition and breaking up concentrations of corporate power. This included scrutiny of the patent system and its role in creating monopolies.

Thurman Arnold's Crusade. Thurman Arnold, head of the Justice Department's antitrust division, launched investigations into companies like Alcoa and Standard Oil, revealing their cartelistic relationships with Nazi industry and their abuse of patents to stifle competition. These cases highlighted the national security risks posed by unchecked corporate power.

TNEC Report. The Temporary National Economic Committee (TNEC) investigated the role of patents in the economy, concluding that they often suppressed innovation and created anticompetitive monopolies. The New Dealers sought to reestablish the patent's original social contract, prioritizing public benefit over private gain.

5. Public Science and the Endless Frontier

When research is properly organized, every man’s work is an aid to every other man’s.

Powell's Vision. John Wesley Powell, a 19th-century explorer and scientist, advocated for federal investments in science and research, viewing it as a patriotic duty. He believed that knowledge generated by public investment should remain in the public domain.

Wartime Research. World War II saw a massive expansion of government-funded scientific research, but the lack of a coherent patent policy allowed private contractors to claim exclusive rights on publicly funded inventions. This sparked debate over who should control the fruits of public science.

Bush vs. Kilgore. Vannevar Bush, head of the Office of Scientific Research and Development (OSRD), favored industry control of patents, while Senator Harley Kilgore advocated for public ownership and broad licensing. Their conflict shaped the postwar debate over science policy.

6. The Rise of Big Pharma and the Loss of Reform

The sun in the sky should be freely available to all who wish to use it.

Ethical Patenting's Demise. The post-war era saw the decline of "ethical patenting" and the rise of a pharmaceutical industry focused on maximizing profits through monopoly control. This shift was driven by factors such as the maturation of scientific medicine, the influence of German firms, and the co-option of academic research.

Fishbein's Warning. Morris Fishbein, editor of the Journal of the American Medical Association, warned against the dangers of unchecked patenting, calling for a disinterested body to administer medical patents for the public benefit. He feared that the pursuit of profit would undermine the principles of medical ethics.

The Insulin Monopoly. The price-fixing scandal involving companies licensed to produce insulin highlighted the potential for abuse in a system that prioritized private gain over public access. This case marked a turning point in the debate over drug patents.

7. Neoliberalism and the Chicago School's Influence

If the common good is to be served, an economics of scarcity must give way to one of abundance.

Hayek's Critique. Friedrich von Hayek, a leading figure in the Austrian School of economics, argued that government intervention in the economy, including through patents, led to tyranny. He advocated for a minimalist state and free markets.

The Chicago Turn. The Chicago School of economics, influenced by figures like Aaron Director, shifted away from the Austrian School's opposition to monopolies, arguing that they were self-correcting and did not require government intervention. This paved the way for a more permissive view of corporate power.

Stigler's Regulatory Capture. George Stigler, a Chicago economist, developed the theory of "regulatory capture," arguing that industries would inevitably control the agencies that regulated them. This justified a hands-off approach to antitrust and patent policy.

8. Bayh-Dole and the Privatization of Public Science

The imprisonment of invention and production spells doom; the nation which discovers how to release to mankind the great storehouse of creative energy shall inherit the earth.

The Bayh-Dole Act. The Bayh-Dole Act of 1980 allowed universities and small businesses to patent inventions arising from federally funded research, effectively privatizing public science. This policy shift was justified by arguments about competitiveness and economic growth.

Consequences. The Bayh-Dole Act led to a surge in university patenting and licensing, but also raised concerns about the commercialization of academic research and the potential for conflicts of interest. Critics argued that it prioritized private gain over public benefit.

The "Homestead Act" of Science. Some observers likened Bayh-Dole to the Homestead Act, arguing that it opened up the nation's scientific commons to private interests, leading to the enclosure of knowledge and the concentration of power. This policy shift has had a profound impact on the pharmaceutical industry and the accessibility of medicines.

9. Generics, AIDS, and the Battle for Access

The individual does not construct new chains; he fills missing links.

Hatch-Waxman Act. The Drug Price Competition and Patent Term Restoration Act of 1984 (Hatch-Waxman) sought to balance the interests of brand-name and generic drug manufacturers. It streamlined the approval process for generics but also extended patent terms for brand-name drugs.

The AIDS Crisis. The AIDS epidemic in the 1980s and 1990s highlighted the devastating consequences of high drug prices and limited access. Activists fought for affordable treatments, challenging the power of pharmaceutical companies and the TRIPS regime.

AZT Controversy. The high price of AZT, the first AIDS drug, sparked outrage and protests, raising questions about the ethics of profiting from life-saving medicines. The controversy exposed the industry's prioritization of profits over public health.

10. The WTO and the Globalization of Drug Monopolies

The sun in the sky should be freely available to all who wish to use it.

TRIPS Agreement. The Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement, established through the World Trade Organization (WTO), globalized U.S.-style medical monopolies, forcing developing countries to recognize and enforce drug patents. This was achieved through pressure and coercion, undermining local drug industries and limiting access to affordable medicines.

The New International Economic Order. The G77 countries sought to challenge the TRIPS regime and promote technology transfer to the developing world, but their efforts were undermined by the debt crisis and the rise of neoliberalism. The WTO became a tool for enforcing U.S. interests and protecting corporate profits.

Doha Declaration. The Doha Declaration on the TRIPS Agreement and Public Health (2001) was a limited attempt to address the concerns of developing countries, but it has been largely ineffective in practice. The TRIPS-plus agreements and political pressure from wealthy nations continue to restrict access to affordable medicines.

11. COVID-19: A New Battleground for Access

The sun in the sky should be freely available to all who wish to use it.

Open Science vs. Corporate Control. The COVID-19 pandemic presented a new test for the global intellectual property regime. While the scientific community initially embraced open science and collaboration, the pharmaceutical industry quickly moved to assert proprietary control over vaccines and treatments.

Operation Warp Speed. The U.S. government's Operation Warp Speed accelerated vaccine development but also reinforced the power of pharmaceutical companies, allowing them to maintain control over pricing and technology transfer. This led to inequities in vaccine access, with wealthy countries securing the vast majority of doses.

The TRIPS Waiver Debate. The proposal to waive intellectual property rights for COVID-19 technologies at the WTO sparked intense debate, with developing countries and civil society groups arguing for greater access and wealthy nations and pharmaceutical companies resisting. The outcome of this debate will shape the future of global health equity.

12. Trade Secrets: The Ultimate Barrier to Knowledge

The sun in the sky should be freely available to all who wish to use it.

Beyond Patents. The focus on patents often obscures the importance of trade secrets, which can be used to protect knowledge indefinitely and prevent generic competition. Trade secrets are particularly relevant in the context of complex technologies like mRNA vaccines.

The Economic Espionage Act. The Economic Espionage Act of 1996 criminalized the theft of trade secrets, further strengthening the power of corporations to control information. This law has implications for access to medicines and the ability of developing countries to manufacture generic drugs.

The Future of Access. The battle over access to COVID-19 technologies will likely hinge on the issue of trade secrets. A meaningful solution will require not only waiving patents but also compelling companies to share the know-how and data needed to manufacture vaccines and treatments.

Last updated: March 15, 2025