Patent Cultures, Unpatentable Processes: How did Victorian surgeons negotiate credit for their inventions?

Sally Frampton, University of Oxford In the vast and complicated realm of intellectual property, it can often seem like medical innovations have an ever-growing profile. Controversies surrounding gene patenting for example –  last year saw a Supreme Court decision to invalidate patents on gene sequences in the US – strike at the heart of concerns about the commodification of the human body; while the patenting practices of pharmaceutical companies remain the subject of scrutiny, particularly as a potential barrier to those in the developing world accessing medicines. In other areas of medical practice however, the role of intellectual property is less obvious. One such area is surgery. In Europe, while you are able to obtain a patent on a surgical device, you may not patent a surgical operation. [1] This is because of fears that practitioners’ freedom to operate in the manner they deem most appropriate would be limited by concerns of patent infringement, possibly endangering patient care. Thus, in today’s fast-expanding patent culture, surgery occupies a somewhat exceptional position, in that, for the most part, it is excluded from patenting. In the mid-nineteenth century, the situation was not so different; surgeons operated – quite literally – in a world in which patenting played an increasingly important role. During this time the social value placed upon invention was growing. Inventors were being re-imagined as heroic Britons who fulfilled a productive role in society, while the term ‘innovation’ began to be understood more positively, rather than signifying radicalism or instability as it previously had. Patent law began to be reformed to ensure inventors’ rights were acknowledged and the elevated place of patents in the cultural milieu reflected the issues of competition, profit and plagiarism that industrialisation brought. In a professional culture where profit-making and proprietary gestures had to be negotiated with extreme care, the place of patenting in medicine was rather more complex. In the sphere of surgery this would be exemplified by the ‘Letheon’ controversy. In 1846 two American practitioners, physician Charles T. Jackson and dentist William T.G Morton, had discovered the effects of ether in eradicating pain during operations, and had attempted to patent the substance under the name ‘Letheon’, even claiming infringement when London surgeon Robert Liston had used the method to anaesthetise his patients soon after. The British medical press emphatically condemned such use of patenting, and in an editorial of that year, the Provincial Medical and Surgical Journal  advocated a division between (patentable) surgical instruments and (unpatentable) surgical methods and modes of practice, not dissimilar to that which exists today. In reference to anaesthesia, the journal remarked that any ‘attempt to place restrictions on the mode of using a known medical agent by qualified medical practitioners, is as absurd, as its success would be mischievous.’[2] Despite this, the question of how one rewarded credit in operative surgery did not go away. In my paper for Rethinking Patent Cultures, I’ll be exploring how Victorian surgeons sought recognition for their unpatentable operations, while working within an increasingly patent-orientated culture. Should surgeons simply be satisfied with the reward of improving the lot of humanity? Or should they, as some argued, be rewarded financially for their innovations? Was it even possible to define intellectual ‘ownership’ of an operation, when procedures rapidly deviated and changed? Additionally, I’ll also be investigating how this played out on the international stage. In the second half of the nineteenth century, surgery was one of Britain’s most important and successful exports; operations like ovariotomy – thought of by British surgeons as ‘their’ invention – paved the way for abdominal surgery and the success of the operation was considered a fundamental milestone in surgical practice. As such, it was an important asset in asserting British dominance in the realm of scientific invention, particularly in relation to France. Ultimately what I hope to show is that while at first glance there may seem little to connect operative surgery with patenting at this time, it was connected to a broader patenting culture. In an atmosphere of heightened awareness about the role of the inventor in society, and while striking innovations were occurring in surgery, the question of how surgeons should be recognised and rewarded for those inventions was of paramount importance.   [1] European patent Office; 4.2 Surgery, therapy and diagnostic methods http://www.epo.org/law-practice/legal-texts/html/guidelines/e/g_ii_4_2.htm (accessed 17th June 2014). [2] ‘Inhalation of Aether in Surgical Operations’  Provincial Medical and Surgical Journal, 2 (27th January 1847) 55.

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