Profound Science and Elegant Literature. Stephanie P. Browner
experiments.28
Most versions of the ether story avoid references to Morton’s persistent efforts to sell licenses, and others suggest, contrary to the evidence, that when Morton revealed the ingredient in Letheon before the third demonstration, he nobly relinquished all desire for profit and thus joined the professional class of medical men who stood apart from such marketplace schemes. Bigelow, however, did not avoid the issue. But the confusion and awkwardness that marks his discussion of medical patents testify to the deep tension between laissez-faire capitalism in the professional status that regulars sought.
With the repeal of most state licensing laws, the deregulated healthcare market was crowded, and regulars competed in part by representing themselves as committed to instituting and following the highest ethical standards. One of the first tasks of the American Medical Association (AMA) when it was founded in 1847 was to adopt a code of ethics. Attracting a great deal of attention—both support and criticism—the code attempted to elevate the profession above the contentious fray of marketplace competition. The National Code of Medical Ethics, as it was sometimes called, acknowledged the almost complete withdrawal of legal regulation of medical practice but suggested that rather than lobbying for the return of state licensing, the profession was better served by regulating itself. To this end, the code called upon physicians to shun “unlicensed” or “irregular” practitioners, to refrain from quarreling with one another in public, and never to challenge the opinion of the primary attending physician of a case. Advertising was deemed “derogatory to the dignity of the profession,” and all attempts to compete directly in the marketplace were deemed “the ordinary practices of empirics” and “highly reprehensible in a regular physician.”29 Thus the code suggested that the distinction between regulars and irregulars was that the former were dedicated to ethical, decorous behavior while the latter were willing to use whatever marketing schemes they could to win patients and profits.
Crucial to the profession’s attempts to represent itself as ethically minded and distant from the pettiness and dishonesty of the marketplace was a condemnation of patents. The AMA code linked patents with secrecy, base profiteering, and quackery. Patents, the code suggested, fettered scientific inquiry and turned matters of truth and knowledge into business concerns.
Equally derogatory to professional character is it, for a physician to hold a patent for any surgical instrument, or medicine; or to dispense a secret nostrum, whether it be the composition or exclusive property of himself, or of others. For if such nostrums be of real efficacy, any concealment regarding it is inconsistent with beneficence and professional liberality; and if mystery alone give it value and importance, such craft implies either disgraceful ignorance, or fraudulent avarice. It is also reprehensible for physicians to give certificates attesting the efficacy of patent or secret medicine, or in any way to promote the use of them.30
According to the code, patents were appropriate for ideas and goods traded in the marketplace but not for the facts and truths discovered through scientific inquiry. In an 1849 report on patent medicines to the House of Representatives, one doctor warned that patents were the recourse of “the unprincipled and mercenary, [who] with fertile ingenuity, have been daily prostituting a noble science at the shrine of private interest.”31 He insisted that the medical profession opposed the “practice of granting patents for compound medicinal agents as immoral and pernicious in tendency,” and he argued:
[we] oppose it not only with philanthropic views, but as exponents of an intense and universal professional sentiment, and as advocates of a large and liberal class in the body politic, whose lofty ethics repudiate exclusive rights and emoluments, forbid secrecy, and unite all its members in a common search for truth and usefulness.32
The argument against patents gained few adherents outside the medical profession, and the AMA’s failure to persuade Congress to regulate or ban medical patents suggests the depth of sentiment against legal protection for professions. Congress was more concerned with promoting economic development than regulating medical patents, and patents were considered an effective incentive for encouraging the introduction of new inventions and ideas into the marketplace. Congress revised patent law in 1836, transforming a previously expensive and litigious application process into a relatively quick, easy, and usually successful procedure. Responding to and encouraging the emerging market culture, the new law defined ideas as private property and, more importantly, as commodities that could be developed for business and profit. Not surprisingly, then, Congress was unwilling to renege on this understanding of patents.
The belief that patents were good for the economy combined with the widespread popularity of patent medicines, made it awkward for the medical establishment to condemn Morton’s patent application. Indeed, both Bigelow and Rice suggested that it was precisely the nation’s free market economy that encouraged men like Morton to tinker, invent, and bring their discoveries to the marketplace and thus to the public. But their endorsement of free market principles belied the ambivalent and even antagonistic relationship between the monopoly that the medical establishment sought and laissez-faire economics.
Bigelow attempted a resolution. In his first article on etherization in the Boston Medical and Surgical Journal, Bigelow defends Morton’s patent. He acknowledges that “patents are not usual in medical science” and that usually “fame, honor, position, and, in other countries, funds” are more acceptable.33 But he insists that Morton’s patent is necessary because it will restrict the use of ether to responsible and knowledgeable practitioners. Here Bigelow misconstrues the purpose of patents: he ignores the accepted definition of patents as economic incentives and suggests instead that patents are a form of regulation, of licensure. He seems to believe that a patent on etherization will prevent unqualified practitioners from using it. Although Bigelow seems confident in his argument, he also adds another defense, one that exposes his own ambivalence about patents. Implying that patents are part of the less prestigious and more profit-minded profession of dentistry, Bigelow suggests that Morton’s patent application is excusable because patents are accepted in dentistry, the profession most likely to use ether.
Not surprisingly, it was a dentist who exposed Bigelow’s misrepresentation of patents and the hypocrisy of a physician defending a medical patent. Perhaps sensitive to Bigelow’s subtle insult of dentistry, Dr. Flagg, a Boston dentist, published an article two weeks later in the Boston Medical and Surgical Journal, suggesting that Bigelow was in defiance of the professional code of the Massachusetts Medical Society when he defended Morton’s patent.34 Flagg also points out that no one, including regulars, will ever honor Morton’s patent. He notes that the physicians at Massachusetts General Hospital in particular will feel free to instruct their students in the art of etherization without compensating Morton. Most embarrassingly, Flagg exposes Bigelow’s self-serving and incorrect definition of patents. Flagg points out that Morton’s patent, like all patents, demands payment, not expertise, for the right to use ether as an anaesthetic.
In the next issue of the journal, Bigelow works more carefully to carve out a viable position for the medical profession on the question of patents. He argues that the medical profession is against secrecy, but not against intellectual property rights. He insists that the Massachusetts Medical Society condemns only those who seek profit by refusing to identify the contents of their drugs, not patents in and of themselves. Bigelow writes that Flagg
confounds the question of secret and that of patent, and infers that what is no longer secret is no longer patent. It is understood that the matter was secret just so long as was necessary to secure patents here and elsewhere, no longer. But the fact of its subsequent publicity does not change the question of property. The discovery and the patent rights still belong to the inventors.35
This time Bigelow gets it right. In the first article he invoked tenets central to professionalism—knowledge is dangerous and its use must be regulated. But confronted with the illogic of equating patents with regulation, Bigelow admits in his response to Flagg that patents protect the intellectual property rights of the patent holder, not the patient from irresponsible practitioners misusing ether. In short, Bigelow must acknowledge, as he does, that medicine would be better served by “discovery unfettered by any restrictions of law and private right.” And yet, he avoids an