1390 THE TRADE IN SECRET AND PROPRIETARY MEDICINES.

price and construction set out in these notes emanate fromEnglish factories; the prospective purchaser will thereforenot regret confining his choice to one of these.

THE TRADE IN SECRET AND PRO-PRIETARY MEDICINES.

(SPECIALLY CONTRIBUTED BY A BARRISTER-AT-LAW.)

I.1. BRITISH STATUTES AFFECTING THE TRAFFIC.

THE trade in secret and proprietary medicines, in GreatBritain and other countries, has undergone many andimportant changes during the past few years. In this

country the proprietary medicine industry, unchecked andalmost unhampered by the law and the legislature, hasgrown enormously. Abroad, where vested interests are lesssacrosanct and there are limits to freedom of trade, the sameperiod has been noticeable for the variety and increasedbtringency of the regulations and restrictions which havebeen imposed upon the trade by the various States. Beforesetting forth in detail the nature of the regulations whichforeign countries have deemed necessary it will be well toindicate with some precision to what extent the laws of

England regulate, directly or indirectly, the traffic in secretmedicines.

In Great Britain any person who desires to make or to sellwhat is known to the public by the misnomer " patentmedicine " must acquire a licence for the purpose. The costof the licence is 5s. annually for one licensee for one set ofpremises. It may be obtained by anyone, whether or not hehas any acquaintance with medicine or pharmacy, whomakes application to the collector of Inland Revenue. Inthe 12 months ended March 31st, 1905, no fewer than 40,734licences were issued in England, Scotland, and Wales tomakers and vendors of secret medicines ; the revenue to theState from this source was thus in excess of zit, 000. Thenumber of licensees has been steadily growing since 1895,when it was 31,592. It would be well at this stage to

explain that the phrase " patent medicines " when used bythe Inland Revenue and the public does not denote

pharmaceutical products protected by Letters Patent underthe Great Seal but preparations held out or recommendedto the public by the makers, vendors, or proprietors thereofas nostrums or proprietary medicines, or as specifics, or asbeneficial to the prevention, cure, or relief of any distemper,malady, ailment, disorder, or complaint, incident to or in anywise affecting the human body." (52 Geo. III., c. 150.)Medicines of this kind are lliable to what is known as stampduty. Various Medicine Stamp Duty Acts of the reign ofGeorge III. which are still in force fixed charges of duty onevery packet which might be sold of any compound prepara-tion recommended for the prevention or cure of disease unlessall proprietary rights in the same should be disclaimed.Disclosure, more or less definite, of the composition of a

proprietary medicine, though not necessarily direct disclosureto the purchaser, is now virtually necessary as the alternativeto the payment of duty. The duty is paid by affixing to thepackage a stamp label of the appropriate value. Thus on a

packet sold for Is. or less the cost of the stamp is 1.; on apacket sold for more than Is. and not more than 2s. 6d. a3d. stamp is necessary. On more costly packets thestamp may be of the value of 6d. or of Is., 2s., 3s.,10.s., or 20s. It was pointed out in THE LANCET 1

recently that in the 12 months ended March 31st,1906, the number of such stamped packages sold was39,861,146. the total "face value" to the public being.62,764,557, and the revenue to the State from the stampsalone being .6324,112. Some proprietors of largelyadvertised secret medicines, which bear the Governmentstamp, endeavour in their advertisements to convey to thepublic mind the idea that the Government stamp is someguarantee of the quality of the preparation. In spite of thefact that the stamp itself bears a superscription to the con-trary there is no doubt that many of the more ignorant andpoorer classes do, as a fact, regard the stamp as an indica-tion that the compound itself is of some efficacy and repute.It should be mentioned here that proprietary articles whichconsist of a single drug-as distinguished from mixtures orcompounds-are exempt from the medicine stamp duty. It

1 THE LANCET, Sept. 29th, 1906, p. 890.

is for this reason that " Daisy Powders " (which consist ofacetanilide) and certain other well-known proprietary articlesdo not bear the stamp. All the Medicine Stamp Duty Actswere framed to deal with circumstances entirely differentfrom those which now obtain. Thus the revenue from medi-cine stamps was at first little more than 10,000, or about3 per cent. of the revenue at the present day. It will thusbe evident that the tax on proprietary medicines has

assuredly not had the effect of keeping in check the demandfor such articles. Nor has it lessened the profits of themanufacturers, since the cost of the stamp is in all casespaid by the consumer.With the exception of the ancient Medicine Stamp Duty

Acts there is no statute in this country which deals especiallywith the sale of proprietary medicines. The provisions ofthe Pharmacy Act of 1868, however, apply to proprietarymedicines which contain one or more of the articles enu-merated in the "Schedule of Poisons" which follows thatAct. The schedule contains all poisonous vegetable alka-loids, such as cocaine and morphine, and other narcotics,but does not contain such articles as acetanilide, sulphonal,and trional. Secret medicines containing a scheduled

poison may only be sold by retail (1) by a registered pharma-ceutical chemist or chemist and druggist ; (2) in the shop ofa registered chemist or of a limited company ; and (3) if themedicine be labelled with the word " poison and the nameand address of the vendor-but not necessarily with thename of the actual poison. All the above conditions mustbe fulfilled. The above provisions do not apply, however,to compounds actually enjoying the protection of LettersPatent, but this exemption is of no practical importance,as the Pbarmaceutical Society of Great Britain makesa practice of applying for the revocation of anypatent granted in respect of a medicinal compoundcontaining a scheduled poison. In this the Pharma-ceutical Society has been uniformly successful. It is

thought by some that the intention of the legislature in1868 was to exempt all proprietary medicines containingpoison from the provisions of the Pharmacy Act but thecourts have held that the wording of the statute does notsupport that contention (Pharmaceutical Society v. Piper,THE LAXCET, Feb. 18tih, 1893, p. 373), where "chlorodyne"

"

was the subject of the dispute. The most important of thepoisonous proprietary articles now sold are Winslow’ssoothing syrup, Kay’s essence of linseed, chlorodyne, andFellows’ syrup. These, as has been stated, must belabelled poison and may only be sold at the hands of aregistered chemist. Powell’s balsam of aniseed, Owbridge’lung tonic, and licoricine formerly contained scheduled

poisons but the composition of these articles was altered soas to free their sale from the restrictions imposed by thePharmacy Act and they may now be sold without anyrestriction.The Spirits Acts afford to the British public a limited

amount of protection against the strongly alcoholic nostrumswhich have had such a vogue in the United States ofAmerica. For the sale of spirituous preparations, even ifthese are medicated, an Excise licence is necessary, except"for any physicians, apothecaries, surgeons, or chymists, asto any spirits or spirituous liquors which they may use inthe preparation or making up of medicines for sick, lame,or distempered persons only." 16 Geo. II., c. 8 (1741).The watchfulness of the officers of Excise has proved fairlysufficient to prevent the extensive sale of strongly alcoho-11---preparations under the guise of proprietary medicines. Quitelately the Board of Inland Revenue decided that the sale oftwo popnlar French articles-Eau des Carmes and Alcool deMenthe-which contain a large percentage of alcohol, shouldno longer be permitted except by traders holding a spiritlicence. Very few grocers and druggists hold this licence.There are, also, on the market various proprietary cocawines, meat and malt wines, and similar preparations, manyof which are of the nature of beverages quite as much asthey are of the nature of medicines. For the retail of thesea wine licence (f.2 10s. per annum) is necessary. Mostgrocers and many druggists have this licence.The Merchandise Marks Act, 1887, makes it a criminal

offence to apply, with intent to defraud, a false tradedescription to anything which is the subject of trade, manu-facture, or merchandise, but this Act does not seem to haveever been put in operation as a means of punishing personswho fraudulently apply false descriptions to proprietarymedicines. It has recently been suggested that this Actshould be amended by the addition of a provision making it

1391THE TRADE IN SECRET AND PROPRIETARY MEDICINES.

competent for local authorities to institute proceedingsand it is certain that in the past the Act has not beeIadministered with noticeable vigour. A new departure halduring the past few weeks been made by the Director o:

Public Prosecutions who has instituted criminal proceedinglagainst the makers of two quack medicines, the oifenct

charged being a conspiracy to obtain money from HilMajesty’s subjects by false pretences. Many vendors oi

quack medicines have committed this offence in the pastwith impunity and it may be that the recent action of th{Treasury, if successful, will have a salutary effect on thes{gentry in the future.The Sale of Food and Drugs Acts (1875 and 1899) do not

apply at all to proprietary medicines ; and although it hasrecently been suggested by the British Medical Associationthat this exemption should be abolished, it is difficult to seehow provisions such as those of the existing Acts could bEset in force against articles for which there is no legalstandard. It may, indeed, be possible to prove that thesale of a quack medicine is "to the prejudice of the pur.chaser "; but in the absence of any standard it is difficultto see how the article could be shown to be "not of thenature, substance, and quality demanded."From what has been written it will be clear that there are

virtually no restrictions in Great Britain on the sale of pro-prietary secret medicines, so long as these contain noscheduled poison and no considerable proportion of alcohol.By the use of the medicine stamp absolute proprietaryrights and absolute secrecy with regard to the compositionof any medicine whatever may be indefinitely maintained.

2. PATENTS AND TRADE-MARKS FOR MEDICINALARTICLES.

It has been argued on occasion that the laws of propertyought not to impose any limitation on the general use ofnatural remedies for disease, and that whenever a passageis translated from nature’s infinite book of secrecy theopportunity of reading it should be given to all. There ismuch to be said in favour of the view that any form ofmedicinal treatment should be placed, as freely as may be,at the service of suffering humanity, and that the nature ofevery new remedy which has therapeutic activity should bemade known to physicians for the common good. Now ifthe statutes which have already been quoted do not to anyconsiderable extent discourage the maintenance of secrecyand of private proprietary rights in medicinal substances,these two conditions are positively fostered by the provisionsof the Trade-marks and Patents Acts respectively. In con-sidering the bearing of these Acts upon the medicine trade,it is necessary to remember the principle on which the Statewill grant a " franchise " to a trader. The law recognisesthat in most branches of industry progress is best encouragedwhen some material inducement is offered to the industriallyprogressive. When the state of civilisation or the prosperityof national commerce is advanced by the genuine inventionof a new means of effecting a useful purpose the State willgrant to the inventor during a period of 14 years the soleright to work his invention. At the expiration of the termof the patent thus granted the invention ordinarily becomespublic property. It should be noted that a patent is notvalid unless granted in respect of an invention which has insome degree the qualities of novelty and utility.As a rule, the trader who desires to make money by selling

I.to the general public a compound in the nature of a

proprietary medicine does not take out a patent. In thefirst place, few formulas for the manufacture of proprietarymedicines have even that limited degree of novelty and useful-ness which would justify validity in a patent. In the secondplace, disclosure of the formula in the patent specificationwould be necessary ; and to make this disclosure is not thedesire of the nostrum maker. He prefers to obtain the pro-tection of the State by means of a trade-mark. Unlike thegrantee of a patent, the grantee of a trade-mark need noteven allege that he proposes to confer any indirect benefiton the body politic in return for the franchise which heseeks. All that he need do is to combine a selection ofletters of the alphabet so as to make a word which is notin the eyes of the law descriptive of his medicine and to payto the State a small sum of money; a trade-mark thenbecomes his, and his property in the word will be protected,not for 14 years only, but for ever, by the State. If trade-marks could only be applied to novel and useful articles orto articles of unique or unusually fine quality, the publicmight conceivably benefit. Purchasers would be protectedagainst dishonest traders and would buy with confidence in

the quality of the article branded with the trade-mark. Butwhen, as is now the case, trade-marks may be applied by

their owner to ordinary articles, which he makes in ordinaryways, or even buys "ready-made," the public benefit is morethan a little difficult to trace.And if this applies to quack medicines which are offered

to the public, it applies with much greater force to thenumerous chemical substances which are so freely advertised,under names which conceal their nature, to the medical pro-fession. The advances of research in the region of organicchemistry have resulted in many additions, valuable andvalueless, to the list of therapeutic agents at the serviceof the physician. Many of such remedies are the privateproperty of the English, American, and German firms whichhave had the foresight and business ability to inventthe remedies or to secure the rights therein. Of that, sofar as it applies to synthetic remedies which have beendiscovered as the result of genuine research, no complaintcan reasonably be made. But the calm appropriation,vi or clam or corani populo by any trader, of any rightof private ownership over an article which has been,and ought to be, common property, would seem tostand on another footing altogether, especially whenthe public health is concerned. There are at the presentmoment many firms of manufacturers who devote much

thought to the perfection of devices whereby they maysecure exclusive rights in this or that medicinal substancewhich is now public property. In some instances theyboldly apply for a patent for some already known chemicalsubstance or process, trusting that the insufficiency of thepresent requirements of the law with regard to novelty in anapplication for a patent, or the complex language of theirspecification, or the addition, perhaps, of some illusory"improvement," and the inactivity of other traders willenable them to achieve their object. A good example of thisis to be seen in the acetyl-salicylic-acid patent case recentlybefore the courts (Rep. Pat. C. 1905, 22, 498). In that caseit was shown that a patent had been obtained, and formany years enjoyed, in respect of a chemical compound, theprocess for manufacturing which was perfectly well knownbefore the patent was issued. The judge, in declaring thepatent invalid, remarked that, by error, accident, or design,the specification had been so framed as to obscure thesubject as much as possible. But it is rarely that this methodof securing proprietary rights in medicinal substances isattempted. The easier and more usual method is to applyto the coveted remedy a trade mark consisting of some" invented " word. This may be chosen especially to suit thesubstance or it may be a word which the manufacturer hashad " in stock" while he waits for something to turn up, towhich the mark may suitably be applied. (It is quite a regularthing for a manufacturer to register some word as a trade-mark in Class 3-chemical substances prepared for use inmedicine and pharmacy-without any definite idea of thearticles to which he will subsequently attach it.) Forexample, since the acetyl-salicylic-acid patent was declaredto be invalid rival firms have endeavoured I I to collar" thetrade in the compound by applying to it fancy trade-marksand attempting to persuade medical practitioners to use

these only when prescribing acetyl-salicylic acid. Can it

seriously be contended that there is such a differencebetween brands of acetyl-salicylic acid sold by A under thename of "aspirin," or by B under the name of "saletin,"

"

or by C under the name of " salacetin," or by D under thename of "acetysal," or by E under the name of "Xaxa,"

"

and the compound sold under its proper chemical name, asto make it desirable in the interests of the public health thatthe State should protect five separate proprietary interestsin what is to all intents the same article, and that article awell-known and useful piece of public property ? And canit be regarded as. desirable that the real nature of the com-pound should be masked by the use of all these fancy words ?To give other examples, diffent brands of hexamethylene-tetramine have the following fancy names: urotropine,aminoform, formin, crystamine, uritone, and naphthamine,while adrenalin competes with suprarenalin, epinephrine,adnephrin, adrin, suprarenin, hsemostasin, renastyptin, andparanephrin. All these, or nearly all, are registered trade-marks.A trade mark is supposed to be a non-descriptive word. As

a natural consequence one of the cl ief objects of the keenbusinesslike trader is to secure a word which approaches, asnearly as may be safe, to the borderline between descriptive-ness and non-descriptiveness. The registration of the hybridword "tabloid "-derived from a thoroughly familiar Latin

1392 ELECTION OF DIRECT REPRESENTATIVES UPON GENERAL MEDICAL COUNCIL.

root and an equally well-known Greek suffix-was a master-piece of foresight and sagacity. The word so admirablydescribes the article to which it is applied that it springsnaturally to the lips of the average person who wishes to buycompressed tablets ; yet the word has been held by the Courtof Appeal to be a valid mark (L. J. Ch. (1904) 73, 474) and isprivate property for all time. The result is that there isa permanent quasi-rnonopoly in an article of commerce whichwas at one time the common property of traders. The firmwhich desired to monopolise the word I I hoematogen as atrade-mark for a blood-forming medicine was less fortunate,and the word, which had been used freely in medicalliterature before its registration as a trade-mark, was

recently removed from the register (Rep. Pat. C. 1905, 22, If47).The examples quoted are a few among many which demon-

strate the methods used to obtain private rights in publicproperty. Thus, 309 trade-marks for medicinal substances ’,were registered in 1905. It remains to deal with thoseinventions which are in fact new and are actually patented.In this case it might be thought that the original ownerwould be content with the monopoly which, by the patentlaws, is rightfully his. 14 years would be regarded by most

. people as a reasonably long time during which the com-petition of other manufacturers should be warded off by theState. But the medicine manufacturer knows a more ex-

cellent way. He not only patents his process of manufacturebut he also registers a trade-mark in Class 3 for articles tobe used in medicine and pharmacy. From the very first he

applies the trade-mark to the patented article, the properchemical name for which would in many instances be im-possibly cumbersome and technical. By skilful advertise-ment he creates a demand for his speciality and teaches thepublic, the medical profession, and the short-sighted portionof the pharmaceutical craft to use always the trade-markname. The effect of this will be obvious. The patentlapses after 14 years. The trade-mark, on the other hand,is probably renewed ad infinitllln, and the result is that avirtual monopoly is extended indefinitely. It is true thatthe Courts of Chancery will prevent this if they are movedto do so. "Where an article has been introduced as newand has been first manufactured under a patent, the name bywhich it is known becomes common property as soon as theexpiration of patent rights puts an end to the monopoly in themanufacture and sale of the article." (Kerly on Trade-Marks.)This statement is based on several judgments of the court."Linoleum" and "Magnolia are examples of trade-markswhich have been held to lapse simultaneously with thepatents with which they were respectively associated. In

Reddaway v. Barham (1886, A. C. 214) Lord Herschellstated the law succinctly as follows : "Where a patenteeattaches a particular name to the production he patents,that name becomes common property as the name of the

patented article. It possesses, indeed, no other name." Inthe Magnolia Metal case (1897, 2 Oh. 371) Rigby, L J.,said : ’’ The manufacturer or patentee cannot by any meansentitle himself to a monopoly in the use, after the secretprocess has been discovered or the term of the patent hasexpired, of the name by which the manufactured article isexclusively known while the secret is undiscovered or theterm of the patent is unexpired."

Unfortunately, it is not worth while for any one firm toincur the expense of moving the court, in order that thewhole community may share in the benefits obtained. So,as often as not, the monopoly persists and the public, ofcourse, has to pay. No new phenomenon, truly, but surely asufficiently serious matter to call for vigilant and unitedaction on the part of those who are concerned, in the publicinterest and their own, to scotch, so far as may be, unearnedmonopolies, improper secrecy, and extortionate prices in thedrug trade.

Before leaving the subject of patents and trade-marks itmay be well to mention that the Comptroller of Patents,although compelled by the Act of 1902 to have the recordsof his office searched for " novelty" when a patent is

applied for, has no statutory authority to refuse to grant apatent solely on the ground of want of novelty Only theother day a patent was secured for the manufacture ofeserine sulphite by the action of sulphurous acid on a salt ofthe alkaloid. This process is not only the one which wouldcertainly be used by any chemist but has actually beenseveral times described in print during the past 20 years ormore. But proprietary rights are cheerfully granted and ifanyone desires to protest it is for him to move the High

Court subsequently to strike the patent from the Register.It may also be noted that in the view of a high authority(Terrell on Patents) a chemical substance is never the

subject of a patent. It is only the process of manufacturewhich can properly be patented.

ELECTION OF DIRECT REPRESENTATIVESUPON THE GENERAL MEDICAL

COUNCIL.

The Candidature of D1’. W, Bruce.Sir T. McCall Anderson last week presided over a meeting

at Glasgow at which Dr. W. Bruce of Dingwall, the presentDirect Representative of the medical profession for Scotland,announced his candidature for re-election. Dr. Bruce spokeparticularly in favour of an attempt to obtain a largermeasure of direct representation on the Council and of

advancing the present methods of medical education and

training. He held that the present regulations of theCouncil were framed on wrong lines in so far as theyseemed to postpone till too late the study of clinicalsurgery and clinical medicine. He believed that after study-ing chemistry, biology, and anatomy for some two yearsat most, the student besides attending lectures on surgeryand practice of medicine, should be taking his clinical

surgery and clinical medicine, as was, indeed, done in somecases at present. Too much time and too much interest weretaken in the purely scientific aspect of medical learning andfar too little attention was bestowed on practical matters. Healluded also to the present position of the English medicalofficer of health as requiring improvement and insisted onthe necessity of security of tenure for the hard-workingScottish Poor-law medical officer.

The CandIdat1lre of D7-. H. Langley Browne.To the Editors of THE LANCET.

SiRS,—At the annual meeting of the Birminghamand District General Medical Practitioners’ Union it wasunanimously decided to support the candidature of Dr. HenryLangley Browne for election as a Direct Representative onthe General Medical Council, and in this district we all knowwell that he is specially fitted to represent the interests ofgeneral practitioners.

Dr. Langley Browne has not only spent the whole of hisprofessional life in general practice, but he has always takenthe keenest interest in all matters affecting the welfare ofthe profession. That he has enjoyed the confidence of his col-leagues is sufficiently demonstrated by the numerous honourswhich have been conferred upon him. For several years hewas chairman of the council of our union and afterwards ourpresident. He has been President of the Birmingham Branchof the British Medical Association, President of the MidlandMedical Society, President of the Birmingham MedicalBenevolent Society, and has served on the Council of theMedical Defence Union. At the present time he is chairmanof the Council of the British Medical Association andRepresentative of the Birmingham branch. We know himto be a strong man with a definite policy and thoroughlydeserving of the cordial support of every medical prac-titioner. Yours faithfully,

n

Nov. 12th, 1906.JAMES NEAL,

General Secretary.

I Dr. Milson Rhodes’s Address.

LADIES AND GENTLEMEN,—In accepting the invitationof the South Manchester division of the British MedicalAssociation I was to a considerable extent influenced bythe fact that the whole of the North of England has only oneRepresentative actively engaged in practice, though a verylarge proportion of the practitioners of England are residenthere in the north and are certainly entitled to more repre.sentation than they have at the present time on the GeneralMedical Council.

In regard to the present unsatisfactory condition of thegeneral practitioner I believe it is largely due to theindiscriminate medical relief given by the so-called providentdispensaries and medical charities; many of the recipients ofmedical charity are well able to pay. The result of the

present system is not only disastrous to the profession butalso demoralising to the recipients, and I am strongly of