Against Intellectual Monopoly

inorganic chemical production in France is noted by Haber (1958, 1971), from
which other details about the history of the chemical industry are also drawn.
The demise of the British coloring industry is also discussed by Penrose (1951),
pp. 102-5.
    16. As confirmed by any of the hundreds Web sites reporting the history of aspirin,
e.g. http://www.medicine.mcgifl.ca/mjm/v02n02/aspirin.html, accessed February
24,2008.
    17. Murmann (2004), p. 3.
    18. Pollack (2001).

    19. Together with its label, the anticommons problem in medical research was pointed
out first in a much-debated article by Heller and Eisenberg (1998). More recent
appraisals are in Scherer (2002) and Epstein and Kuhlik (2004), who argue that
patents on gene fragments are still growing and that patent holders will want to
make money (hence, there should be no anticommons problem at all); Benkler
(2004) and Clark et al. (2000), who argue that patent pools, as in the software
industry, will solve the problem (an oligopoly is better than a monopoly, after all);
and the dozens of references that these articles contain. A conference at the University
of Illinois College of Law, "The Future of the Commons and the Anticommons",
http://home.law.uiuc.edu/iple/conferenceJune06.html, provides a good picture of
where the debate stands as of 2006. Information about the growing number of
scientists and medical or biological research labs willing to share their results can
be found in a variety of journalistic sources, among which are Begley (2006), Leaf
(2005), Maurer, Rai, and Sali (2004).
    20. Information and data about the Italian pharmaceutical industry are mostly from
Campanella (1979), Ferraguto, Lucioni, and Onida (1983), and Paci (1990).
    21. Scherer (2003), p. 122. This is Scherer's study of the welfare impact that worldwide
drug patents may have, the conclusion of which is, in case you are wondering, that
medical patents are bad for our health.
    22. One may wonder why we did not look more carefully at the Swiss pharmaceutical
industry, which also grew without patents in its home country to become more
successful than the Italian, and still is, even if patents were adopted in Switzerland
just one year earlier than in Italy. That would have been more than mildly unfair,
though equally so to both sides of the debate, as the Swiss did exceedingly well both
without and with patents. Although it is quite true, as pointed out in this chapter,
that the Swiss chemical industry was created by French firms running away from
French patents, the size of the internal Swiss market is too small to be relevant.
That the chemical, first, and then pharmaceutical Swiss firms could not use either
process or product patents to protect their home turf is of little relevance, given that
they could use patents, and use them they did, in most other countries the market
size of which dwarfed that of Switzerland. In this sense, and apart for its inception,
the successful Swiss pharmaceutical industry - championed today by Novartis and
Hoffman-La Roche sitting at Nos. 5 and 6 respectively of the world scale, but also
by Alcon (No. 29) and Serono (No. 35) - is neither a pro- nor a counter-patent
story. It is nevertheless significant that from Mr. Alexander Clavel and his fellow
French patent runners there came great firms such as CIBA-Geigy and Hoffman-La
Roche. That until thelate 1960s the leading pharmaceutical countries were Germany,
Switzerland, and Italy (that is, those either without patents or with weak patents) is
recognized even by Wikipedia in its entry "pharmaceutical company."
    23. Readers interested in quickly learning more about the Indian pharmaceutical industry and how it grew without patents may consult the Wikipedia's entry "Pharmaceuticals in India." As of February 24, 2008, it is particularly informative, well
written, and reports abundant references and data sources. The late Jean Lanjouw
was probably the leading world expert on the impact that the adoption of patents
may have on India's drug industry. In her (1997, 2002, 2005) papers, she casts a very
balanced view of the pros and cons faced by low- and middle-income countries adopting pharmaceutical patents. As far as our limited question is concerned,
though, the answer coming from her empirical work is fairly clear, if technically
phrased:

    There is some evidence that high levels of protection might encourage more frequent entry of innovative products in the short