Owning the Sun
Democracy in America is broken. In the interactions of the citizenry, you'd be hard pressed to demonstrate politics even exists. Outside an exceedingly small, increasingly zealous minority, most people can't be bothered. Proof of point is a simple one. When have you ever had a political discussion about or voted for a candidate based on their patent policy? This isn't a trick question. The answer is never, despite the question of patents being of essential importance for the political economy of the 20th century and even more fundamental to the 21st.
Into this political void drops Alexander Zaitchik's excellent history, Owning the Sun: A People's History of Monopoly Medicine From Aspirin to COVID-19 Vaccines. The book is a work of inestimable value regarding the pharmaceutical industry's rewriting and controlling the patent process for their own interests and unmitigated greed, neither of which are they by any means exceptional.
Zaitchik covers many essential issues necessary for any sort of politics in the 21st century. Issues barely discussed publicly and completely absent from the marketing and advertising campaigns now sold as politics. Owning the Sun is a book about information―the lifeblood of politics―and the history of how patents became controlled exclusively by and for the benefit of a few.
Zaitchik documents the medical industry's long path from its beginnings, largely as a charitable public service, populated by a great many charlatans, to becoming one of the most formidable and profitable sectors of contemporary society, populated by charlatans of a different sort. In telling the drug industry's story, Owning the Sun reveals the change of America's democratic politics, most detrimentally, the abject failure of the republic's politics to keep up in almost every way with the changes brought about by the growth of scientific knowledge and its resulting technology.
Our traditions of the corporation and patent largely come out of the English monarchy. Ever since, this royal birth has continued shaping their development. The initial purpose of both allowed the monarchy to cede to another entity, for a limited time and purpose (literally Ltd.), economic power otherwise considered exclusively royal. “Monopolies,” a term as closely associated with patents as corporations, were granted by the monarchy. It was a system quickly abused.
The English Parliament's 1642 “Statue of Monopolies” relieved the monarchy of some of this power, saying monopolies were, “'Contrary to the lawes of the Realme,' but followed an older Venetian law in allowing one significant carve-out. 'The true and first Inventor' of new modes of manufacture were eligible to receive a limited and exclusive grant to use and profit from their invention.”
A little over a century later, after throwing off the British monarchy and establishing the US Constitution, Americans created a clause on patents. Article I, Section 8, Clause 8 states, ”To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." It is basically the English monarchical understanding of patents claiming a monopoly for a limited time and purpose. However, in a more republican notion of promoting the general welfare, patents are founded not on an individual's right of profit, but “to promote the progress of science and useful arts.”
The constitution's patent clause was by no means uncontroversial. Indeed the greatest democratic republicans of the founding pantheon thought patents unnecessary. Both Thomas Jefferson and Benjamin Franklin, both in every way the most quintessential Americans, opposed the idea of patents. One of the great figures of the 18th century, Franklin was a world renown scientist and inventor, publisher, successful businessman, and citizen. Zaitchik expounds Franklin's views on patents,
“In his autobiography, Franklin explains his position through the story of an English ironmonger who made 'a little fortune' by patenting Franklin’s published blueprints for a novel stove design. 'I declined [the patent] from a principle that has weighed with me on such occasions,' wrote Franklin, 'viz., that as we enjoy great advantages from the inventions of others, we should be glad of an opportunity to serve others by any invention of ours, and this we should do freely and generously.' The italics are in the original, giving the advice the weight of maxim in his manual for right living.”
Jefferson, who was Minister to France during the constitution's drafting, writes to James Madison, the constitution's architect, concerning the patent clause, “The benefits of these rights were 'too doubtful to be opposed to that of their general suppression.'” In a wise aphorism about knowledge and information, Jefferson writes, “He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.”
Franklin’s and Jefferson's views are those of democratic republicans, an understanding on the importance of the freedom of information, knowledge, and its utilization foremost for the general welfare. It is a fundamental difference to a monarchical system's granting of patents, as something done in limited scope, a cautious, temporary bestowing of what by right is something belonging exclusively to the sovereign. In 19th and 20th centuries, Jefferson's and Franklin's republican patent notions were turned completely on their head. Patents became exclusive levers of power used first and foremost for the benefit of industry's new monarchical institution – the corporation.
With the rise of industry, and its seminal social invention, the corporation, patents proliferated across 19th century America, increasingly bestowed with the legal value of property. Ironically, just as slavery, that other peculiar institution of property met its demise, knowledge was increasingly enslaved. By the end of the 19th century, limiting the growing power of the the new industrial corporation became a political issue popularly known as antitrust, an issue of power eventually decided entirely in favor of the corporation. Zaitchik astutely points out, “Of the two landmark bills passed in response to rising antitrust sentiment―the Interstate Commerce Act of 1887 and the Sherman Act of 1890―both remained mute on the subject of patents.”
Instead of in anyway subjecting or even balancing the growing power of the corporation, government, most especially the Supreme Court became their handmaidens. With an intimate understanding of the power of patents, corporations became patent factories. “The nineteenth-century names most associated with the legend of the individual genius―Edison, Morse, Goodyear, Westinghouse, Ford―were in fact its most prominent gravediggers. They built research castles and pulled the drawbridge, forcing those who might wish to follow them to overcome rising financial and legal barriers maintained by teams of in-house corporate patent lawyers.”
Alexander Graham Bell was especially notorious for spouting extensive public relations about the heroic lone inventor, while simultaneously running a patent assembly line. The Supreme Court bestowed legal justification; “The last of several Bell decisions in 1897 testified to the distance that now separated U.S. law from the social contract that had defined the grand patent bargain for a thousand years. 'The inventor is one who has discovered something of value,' wrote the majority in United States v. American Bell Telephone Co. 'It is his absolute property. He may withhold the knowledge of it from the public.'”
Not exactly the sentiments of Section 1, Article 8, Clause 8, where patents promote “the progress of science and useful arts.” Instead, a ruling better understood as a restoration of monarchical power. From this mess emerges modern medicine.
Well into the 20th century, medicine was largely synonymous with charity, a public good, many of its largest institutions run by religious orders. Zaitchik writes at its “founding convention in Philadelphia in 1847, the forerunner of the American Medical Association (AMA) adopted a code of ethics declaring patents 'incompatible with the duty and obligation enjoined upon physicians to advance the knowledge of curing diseases.'”
“Medical and pharmaceutical guilds were allied in a 'profound belief in their own supposed benevolence and dedication to the advancement of scientific knowledge,' writes Joseph M. Gabriel, the preeminent historian of nineteenth-century American medical ethics and mores. 'For most physicians, there was little difference between patenting and secrecy when it came to drugs. Both were considered unethical forms of selfish monopoly. Indeed, it was generally assumed that patented remedies and quack nostrums were the same thing.'”
For most of the 19th century, “patent” medicines were associated with the miracle cures and snake oils peddled by assorted shameless charlatans. This would change by the end of the century. The Germans were the largest initial force industrializing medicine, no company more responsible than Farbenfabriken vormals Friedrich Bayer, known in the US simply as Bayer. With their development and patenting of a number of drugs, including heroin, but most essentially Aspirin (the brand name), Bayer began reconfiguring medicine, most specifically the burgeoning pharmaceutical industry.
Over the next fifty years, medicine's once charitable association faded, profit became defining. By the middle of the century,
“The taboo against medical monopolies had turned into a race to collect and defend, by hook or by crook, the seventeen-year patents that had become the coin of the pharmaceutical realm. The huge markups these patents enabled made U.S. drug prices the highest in the world, producing corporate profit margins unique to the postwar economy, double and often triple those found in other manufacturing sectors.”
Zaitchik continues,
“U.S. drug firms introduced, on average, fifty new products every year during the 1950s―twice the rate of the previous decade. But these blockbuster drugs were marketed under a profusion of pricey trademarks through advertising campaigns designed to push pills in ways once associated with “patent-medicines” of the previous century.”
Zaitchik tells the essential history of the first half of 20th century American politics wrestling with the questions of corporate and patent powers. He lays out, though doesn't quite completely tie together how American politics changed in this process, democracy in America crushed.
Owning the Sun is a history of centralizing economic power under the industrial corporation and the resulting reactionary forwarding of centralized political power in Washington DC. The greatest movement occurred in a relatively short time with the New Deal. This isn't a nefarious condemnation of the New Deal. The New Deal was largely a good faith reaction to the collapse of the national economy that had evolved with American industrialization over the previous century. Sincere and well meaning individuals sought in every way to revive and regulate this system. However, few, Supreme Court Justice Louis Brandeis being one major exception, looked at the longer term problems this great centralization of political power in DC would cause the republic.
In 1943, a century after its birth, the AMA, along with every other industry association, opened an office in DC. Patents were only one information currency, there was also the currency of politics itself, both amongst the citizenry and in the legislatures. The politics of the citizenry gradually became truncated entirely into biennial or quadrennial elections. Increasingly, apolitical campaigns, nothing more than marketing and advertising exercises for an array of faulty products, were entirely dominated and funded by the concentrated wealth created through corporate power.
The debasement of the legislative process was just as obscene. It was impossible for an institution like the Congress with only 535 people and some thousands of staff to in anyway deal with the complexities and tsunami of information produced by 20th century industrial society. This need was met with the birth of the lobbying industry, think-tanks, public relations, etc., comprised of the corporations themselves or their funded associations. They framed the debate on issues and eventually wrote the legislation.
In the 1950's, out of history's greatest monopolist John D Rockefeller's University of Chicago came corporate handbooks on how to deal with regulation. An important figure in this effort was economist, George Stigler.
“Stigler and those influenced by his work had very sophisticated ideas about how to audit and slowly take over the agencies by getting them to internalize [their] positions and critiques. You target public conceptions of medical science. You target the agencies’ understanding of what they’re supposed to do. You target the very thing inputted into the regulatory bodies―you commercialize science. Outside of Chicago, Stigler, his students, and those in their close orbit developed relationships with scientists, resulting in a variety of interlinked and coordinated research institutes spanning economics, politics, and the biomedical sciences.”
Combined with control of the election process, calling this system democratic would be a stretch. Zaitchik documents several unsuccessful attempts of the old republic to fight back and hang on. Anachronistic legislators such as the old populist West Virginia Senator Kilgore and his protégé Tennessee Senator Estes Kefauver's, single-handily attempt to fight the corporate patent oligarchy, a patent process amusingly enough funded extensively with public dollars. At the start of his 1957 hearing on patents Kefauver warns, “It is only a step from the loss of economic freedom to the loss of political freedom.”
With the dawn of a new, even more radical information era, the Supreme Court once again lays down the law of who will be in control. In 1980, “A 5–4 decision written by Warren Burger, the Court overruled the U.S. Patent Office and ruled that codified genes were patentable, as was 'anything under the sun that is made by man.'”
The book's final chapters come from today's COVID-19 headlines. Out of the computer industry and into medical industry steps experienced information mogul, former Microsoft Chairman Bill Gates, greedily looking to add to his already formidable billions. Gates' understands better than most the power of controlling information. Walking into the vaccine business he brings, “Richard Wilder, a former head of intellectual property at Microsoft who serves as general counsel and director of business development at Gates’s flagship infectious disease research initiative, the Coalition for Epidemic Preparedness Innovations (CEPI).”
Phew, MS-HEALTH! One has to ask what's the CTRL-ALT-DEL, the reboot function, when the whole system crashes?
Gates influence and insistence on intellectual property controls helped hamstring the COVID vaccine roll out, especially in the global south. “In February 2021, 75 percent of all existing vaccines had been administered in just ten countries. On the other side of these 130 million doses, close to 130 countries containing 2.5 billion people had yet to administer a single shot.” As we've come to learn with the virus' endless mutations, viruses don't much care about intellectual property.
The South Africans, well familiar with imperious white boys attempting to run the show exclusively for their own benefit in the name of the greater public good, issued a stinging rebuke to the Gates' led COVAX vaccine distribution effort. The South Africans hammer,
“Rather large gap exists between what COVAX can deliver and what is required in developing and least developed countries. Irrespective of the amount of money any of the donor countries may throw at the problem, the model of donation and philanthropic expediency cannot solve the fundamental disconnect between the monopolistic model it underwrites and the very real desire of developing and least developed countries to produce for themselves. Philanthropy cannot buy equality. The artificial shortage of vaccines is primarily caused by the inappropriate use of intellectual property rights; this cannot be allowed to continue.”
“Philanthropy cannot buy equality.” What a wonderfully astute essential democratic understanding! A fundamental democratic tenet once widely understood in an America of another era. An essential principle of the long fight against concentrating economic power, which largely makes philanthropy necessary in the first place.
Zaitchik concludes of the present pharmaceutical industry,
“By the standards of any civilization that views its medicines as crowning achievements, the regime that prices them beyond reach and restricts the knowledge to make them must be, and has been, ruled a failure.”
The book's title, “Owning the Sun,” comes from polio vaccine creator Jonas Salk. Polio had been a scourge for decades, particularly impacting children. When announcing the vaccine, Salk was asked if he would patent it. He replied, “Could you patent the sun?” Maybe not, but in the words of Supreme Court Justice Burger, it appears you can patent everything under the sun.
The most ironic thing about all this is that the limited times antitrust was decisively used over the last century, the results have had undeniable economic and public benefits. The breaking up of Standard Oil created seven companies of combined value greater than the established monopoly. The post-war release of the patents controlled by aluminum manufacturer Alcoa were great assets to the metals' industry as a whole. Forcing Bell Labs to license their patents created the entire contemporary electronics industry. AT&T's breakup helped bring about the internet's mass adoption. While stopping Microsoft's takeover of the internet, well, it created a few other big companies of dubious value. Unfortunately, it could be argued MS may have just as well and probably more atrociously created the present internet cesspool.
There is absolutely no economic argument against an exponentially more public patent process, while the political argument to breaking up these mega-corporations is irrefutable, if you want democracy anyway.
“Owning the Sun” is a masterful history of the politics of information. Compared to previous human history, industrialism required massive amounts of information, its control proved defining in every way. As a new technological era spills forth, information is even more fundamental and ubiquitous. Presently, the world lacks the politics, institutions, and thought to in anyway constructively engage this challenge.