The Proprietary System. 
AND ITS REMEDY. 
BY F. E. STEWART, M. D., PH. G.—Second edition with Comments. 
I. 
The Proprietary System. 
For the purpose of promoting progress in 
science and the useful arts the Constitution of 
the United States gives Congress the power to 
grant to authors and inventors for limited 
times the exclusive use of their respective 
writings and discoveries. Hence our copy- 
right and patent laws. 
A patent is a contract between the govern- 
ment, representing the public at large, and 
the inventor. The consideration moving from 
the government is the granting of the ex- 
clusive use of the invention for a limited 
time. The consideration moving from the 
inventor is the invention of a new and useful 
article, and the giving to the public full 
knowledge of it by a proper application for a 
patent, so that, when the patent expires, the 
public may manufacture the invention. The 
wisdom of such a law seems apparent, for by 
it inventors are stimulated to produce new 
and useful articles, capital is protected dur- 
ing the working and marketing of the inven- 
tion until the investment becomes remunera- 
tive, knowledge is increased, and the arch- 
ives of the patent office become a great public 
library and industrial exhibit, free to the use 
of the public, and commerce is promoted by 
valuable additions to the list of marketable 
commodities. 
A trademark is a “commercial signature” 
employed to distinguish one brand of an 
article from another brand of the same article 
on the market. Its use doe3 not confer on the 
user any exclusive right to the manufacture 
and sale of the article upon which the trade- 
mark is branded. In law the trademark has 
two uses. One is to designate ownership, 
illustrated by the common method of brand- 
ing horses and cattle so often seen on the 
ranches of the great West. Another use is to 
designate source of emanation or of manufac- 
ture. For this reason the lumberman brands 
his logs with a trademark, or the manufac- 
turer of potterjr stamps his wares with 
peculiar marks or signs Tn the same way 
the manufacturers of silk, linen and other 
fabrics use the words “Lyon,” “York Mills,” 
etc., as trademarks, to distinguish their 
various brands of goods from other brands of 
the same articles on the market. But these 
uses of the trademark do not vest in the users 
the right to the exclusive handling, or manu- 
facture and sale of the articles upon which the 
trademarks are branded. The man who 
brands his cattle with a trademark does not 
acquire thereby a monopoly in cattle; neither 
does the use of trademarks by potteries, silk 
manufacturers, makers of linen and other 
fabrics, vest in the users the right to exclude 
others from making and selling the same 
commodities. 
Another use of the trademark has sprung 
into being as a development of modern times 
—a use not contemplated by law. The 
method to which I refer is the registering at 
the Patent Office of the only name by which 
an article is known as a trademark on said 
Comments. 
Dr. Henry D. Holton, of Brattleboro, Vt., Treas- 
urer of the American Public Health Association, in 
his letter of Sept. 6, 1894, says: “Your paper on 
Proprietary System has been carefully considered. 
I cannot add to it anything that would improve it. 
It strikes me as a correct solution of a difficult 
question.” 
Henry C. Blair, Ph. G., of 800 Walnut street, Phila- 
delphia, one of the leading pharmacists in that 
city, says in his letter of Sept. 4, 1894: “I think 
your idea on Proprietary Remedies as stated in 
circular sent are thoroughly professional and prac- 
tical, and I hope you will succeed in your work.” 
Dr. Boardman Reed, of Atlantic City, in his 
letter of Aug. 87, says: “I have read your paper 
with interest and profit, and am prepared to assent 
to much that you say therein. The Proprietary 
System is clearly objectionable and ought to be re - 
formed, but I cannot yet see my way to favoring 
the remedy which you propose. It might be less 
objectionable than the evil now existing, but would 
of itself be liable to abuse.” 
Prof. Frank Woodbury, M. D„ of Philadelphia, 
a well known authority, Chairman Section on 
Materia Medica and Pharmacy, American Medi- 
cal Association, writes from Glen Summit, Pa., 
Aug. 3, and says: “I have just read your ar- 
ticle on the Proprietary System and Its Remedy, 
and circular to members of the American Medical 
Association. I think that your argument is sound 
and ought to be convincing to any reasonable 
mind. The remedy suggested should be tried, but 
I think that it is not the only possible one, though 
perhaps the only practicable one at present. 1 
think that the best solution of the problem would 
be to secure a ‘Commissioner or Secretary of Sani 
tation,’ with similar responsibilities as other Cabi- 
net officers. When a department of the Public 
Health has been established at Washington with 
chemical and bacteriological laboratories, it would 
be possible for any citizen, physician or layman, to 
have an authoritative analysis made of any secret 
medicine at any time, and so reports would find 
their way into the newspapers. It would also be 
come the duty of the Secretary to limit or forbid 
the sale of injurious preparations containing mor- 
phine, digitalis, arsenic, etc., as is done by the 
Japanese Government. Ownership in processes 
and methods, as you suggest, should be" made to 
conform to the general patent laws.” 
Prof. J. U. Lloyd, of Cincinnati, says: “I have 
read your paper over and over, and when I take 
the subject into consideration I tjelieve that what 
I have already said as President of the American 
Pharmaceutical Association applies still to the 
problem. I think that you will find that my re- 
marks therein agree quite well with those you 
voice.” 
Dr. George M. Sternberg, Surgeon General United 
States Army, in his comments received Sept. 10, 
1894, says, in relation to the proposed committee 
(see last two paragraphs of this paper): “lap 
prove.” 
Dr. Charles S. Rodman, Waterbury, Ct., in his 
letter of Sept. 17, 1894, says: “The cure for the 
Proprietary System is the higher education of the 
medical profession. 4 he remedy proposed if se- 
cured by law will, like many elixirs, be pleasant- 
more, it will be educational. But so long as medi- 
cine is so nearly free to all, and its dispensation 
the avocation of thousands almost as credulous as 
its recipients, so long will preparations of which 
the prescriber knows little be sold and used. With 
increase of knowledge there will be few cases to 
be cured by drugs. Eliminate the incurable, the 
self-limited and the disorders of functions by 
which the cause can be recognized and avoided, 
and there will be little need of a complex, a mys- 
terious or even an elegant pharmacy.” article. This use of the trademark has cre- 
ated what is known as the Proprietary 
System. This system should not be con- 
founded with the patent system, as it is, in 
principle and practice, directly opposed to it, 
as a further consideration of the subject will 
show. 
The monopoly created by registering the 
only name by which an article is known as a 
trademark upon such article is unconstitu- 
tional, illegal and unscientific. These charges 
I now proceed to prove. 
The monopoly is unconstitutional because 
unlimited in nature. Congress has no power 
to grant perpetual monopolies. I grant that 
the right to use a trademark cannot be limited 
by law. But, as I said before, when one puts 
his commercial signature on his goods he ac- 
quires thereby no exclusive right to the man- 
ufacture and sale of articles so marked. No 
monopoly whatever can result from the 
proper use of a trademark. Only its misuse 
or abuse creates the so-called Proprietary 
System. 
The monoply is illegal, for there is no law 
in the statute books of the United States de- 
signed to protect the new use of the trade- 
mark. On the contrary the courts have decided 
that when a new article of commerce is born 
it must be provided with a name; and that 
any one has a perfect right to manufacture 
and sell the article under the name by which 
it is known to the public provided the article 
is not patented*. In case the article is patented 
no one has a right to make and sell it under 
that name or any other name until the patent 
expires. Furthermore, the name, by use be- 
comes descriptive. A name is descriptive if 
commonly used by the public in designating 
the article when purchasing itf. And it is an 
axiom of law that a descriptive name cannot 
be a trademark. An absurdity that might 
occur by misusing a trademark in this way 
illustrates the subject very well. The trade- 
mark law permits the employment of the same 
trademark as many times as there are classes 
of articles. The word l-Lyon,” for example, 
can legally be used as a trademark on logs, 
silk or tin-plate. In the same manner the 
word “Lactopeptine” may be branded on a 
cow with just as much propriety as upon a 
medicine. The very impossibility of such a 
thing occurring demonstrates most clearly 
that the name Lactopeptine is not a trade- 
mark when applied to the well known article 
so called, but its proper or descriptive ap- 
pellation, the present manufacturer to the 
contrary notwithstanding. 
The monopoly is unscientific because it is 
protective of secrecy. While in many in- 
stances the ingredients of proprietary medi- 
cines advertised to the medical profession are 
given, their true, or working formulas, where- 
by the public (pharmacist) may manufacture 
them are rarely published. The disadvantage 
of this to pharmacy must be apparent to any 
thoughtful mind. Pharmacy is the science of 
preparing medicine. Therapy is the science 
of applying medicine to the cure of disease. 
Materia Medica is the name given to the col- 
lection of substances used as medicine. These 
three were formerly classed under the general 
term Pharmacology, or the science of drugs. 
Pharmacy, then, is a branch of medical 
science, and should be represented in scientific 
medical literature alongside of Therapeutics 
and Materia Medica, as a part of that science. 
But the proprietary system stands directly in 
the way of it. How can Pharmacy have its 
Comments. 
*Brown on Trade Marks, 
tlbid. place in medical science when the knowledge 
of it is locked up in trade secrecy ? How can 
we have a scientific nomenclature to Pharmacy 
when many of the new medicinal compounds 
are introduced under “proprietary” names 
which can have no place in science. The 
Proprietary System more than any one thing 
prevents Pharmacy being recognized as a 
science, and its practice as a profession. 
Finally, the patent law was designed to 
promote progress in science and the useful 
arts by encouraging inventors to invent new 
and useful things, and to “publish full 
knowledge thereof whereby the public may 
manufacture the invention when the patent 
expires.” The Proprietary System, on the 
contrary, hinders progress in science and the 
useful arts by putting in its place a system of 
secrecy and perpetual monopoly. Many phy- 
sicians object to the open limited monopoly of 
the patent law as injurious to the welfare of 
sick humanity. Are we to indorse the Pro- 
prietary System ichich is far worset both in 
principle and practice. 
II. 
The Remedy. 
□ The main objections to the Proprietary 
System are its secrecy, the unlimited duration 
of the monopoly, and the unscientific nature 
of its nomenclature. The great thing in its 
favor is that it protects the investment of 
capital better than the patent law. Very few 
manufacturers with whom I am acquainted 
would object to a reasonable time limit being 
set on the monopoly. All manufacturers 
would agree to the adoption of a scientific 
nomenclature as far as I know of. But there 
are very few who would care to throw their 
processes open to unrestricted competition. 
And it seems hardly fair to ask it. Yet, un- 
less some kind of compromise is adopted be- 
tween what might be called equity and ex- 
pediency the objections I have named remain 
in force. 
Nothing can be done in this struggle with 
wealthy nostrum proprietors, unless the legiti- 
mate manufacturing interests will co-operate 
with the medical profession. Therefore, the 
establishment of some basis of co-operation is 
essential to success. Secrecy of composition 
is incompatible with scientific prescribing 
and should be prohibited; there is no special 
objection to allowing processes and methods 
of manipulation to come under the patent or 
copyright laws. 
Now, I have a compromise to suggest 
which, it seems to me, would overcome the 
difficulty. In my recent trip across the con- 
tinent with a large party of medical men for 
the purpose of attending the annual meeting 
of the American Medical Association held in 
San Francisco, I suggested the plan to var- 
ious prominent physicians, who, in the main, 
agreed in regard to its desirability. It is to 
permit an inventor of a new and useful medi- 
cal compound 10 retain the name and secret 
of manufacture of his invention for a limited 
time, provided the true working formula 
thereof be placed in the hands of a national 
committee of physicians and pharmacists, 
and the article marketed only under the sanc- 
tion of the committee. In other words, let 
the system remain as it now is, only with the 
exceptions that a censorship shall be exercised 
over the market by a committee of competent 
physicians and pharmacists, the monopoly to 
be limited in time, and the system to be made 
cientific by providing it with a proper 
Comments, nomenclature and by the final publication of 
every invention whereby all pharmacists may 
manufacture the same when the patents expire. 
I use the term permit advisedly. The pres- 
ent position of the trade is in every respect 
one of assumption, not permission. Phar- 
macy can never rank as a profession until the 
Proprietary System is abolished, or some 
compromise of the kind I have suggested be 
adopted. Either point once gained then it is 
time for the medical journals to recognize 
pharmacy as a prosession and invite the 
pharmacist to contribute the results of his re- 
searches to the medical journals. Pharmacy 
now only appears in the advertising pages of 
the medical journals, which are torn up when 
the journals are bound. Under such a sys- 
tem there is danger of the pharmacy of the 
nineteenth century becoming to a great ex- 
tent a lost art for want of a literature. There 
are pharmacists who are taking the position I 
have mentioned now, and they should be ad- 
mitted as members of county medical so- 
cieties as honorary members, or active, if 
they take the medical degree. 
Then let every manufacturing house open 
a scientific department manned by competent 
physicians and pharmacists, who can be held 
responsible to the profession for their utter- 
ances, and for the representations made by re- 
spective houses in labels, in circulars, in ad- 
vertisements, and in the contributions of these 
houses to scientific literature. It would be 
well if the members of these scientific depart- 
ments were graduates in medicine as well as in 
pharmacy. They could then join the Ameri- 
can Medical Association, become members of 
thesection on Materia Medica and Pharmacy, 
and contribute to the scientific proceedings, 
thus promoting the interests of both pharmac}' 
and therapeutics. 
At the present time there are quite a num- 
ber of medical journals pretending to be in- 
dependent, but really organs of various man- 
ufacturing houses. I can see no reason 
against, and much in favor of a manufactur- 
ing house issuing a journal as its organ; but 
I have nothing but condemnation for the pre- 
tender who sails under false colors as a pure- 
ly scientific journal. Such a jouinal as 
Squibb’s Epfiemeris, for example, issued above 
board as the organ of Squibb’s manufacturing 
establishment, but filled with scientific ar- 
ticles, the work of investigators in his labora- 
tory, or elsewhere, is a valuable addition to 
our list of journals. 
The question of the day at the recent meet- 
ing of the American Medical Association at 
San Francisco was, shall the Journal of 
the American Medical Association ad- 
vertise proprietary medicines? I would have 
the journal draw the line and admit only 
those whose true formulas are placed in the 
hands of a committee and under the restric- 
tions I suggest. However, it must be agreed 
that such endorsement must not be construed 
as a recommendation and used for advertising 
purposes. And I would add another restric- 
tion, and that is, do not advertise any pro- 
prietary medicines which are advertised to 
the public in the newspapers. 
Now, as to the complexion of the commit- 
tee. I would suggest that it consist of one 
member each of the American Medical and 
American Pharmaceutical Associations, and 
one member each from the medical depart- 
ments of the Army, Navy and Marine Hos- 
pital service, to which might be appropriately 
added as Chairman the Commissioner or Sec- 
retary of Public Health, if such an office is 
finally created by Congress. 
Comments.