Humanity versus the sordid speculator: patenting ether inhalation

Surgeons of the late Victorian era believed the nineteenth century to have been the ‘surgical century’, and historians have noted that this was a period when the surgical profession underwent an elevation in its social status.Footnote ⁵ Often this change in status has been connected to two specific occurrences: first the introduction of anaesthesia – ether and then chloroform – during the 1840s, and second the rolling out of antiseptic (and subsequently aseptic) measures during the last third of the century. Together, these two innovations have been seen to have vastly reduced the risks of surgery and, as a consequence, led to an expansion in the type of procedure that could be performed. The introduction of anaesthesia in particular has been singled out for the transformative effect it is thought to have had on surgical practice, leading to what historian Stephanie Snow has described as a ‘historical treatment of anaesthesia … disposed towards the celebratory’.Footnote ⁶ In fact, as Martin Pernick has argued in his study of anaesthesia in nineteenth-century America, the number of operations performed was not greatly expanded by the introduction of ether, other than among the most gravely ill patients, while Snow has shown that in Britain ether was speedily replaced by chloroform.Footnote ⁷

Nonetheless both acknowledge the immediate and powerful impact of the introduction of ether into American surgical practice and its rapid diffusion across the Atlantic. On 26 December 1846 The Lancet published a brief report of a speech given by Henry Jacob Bigelow, surgeon at the Massachusetts General hospital, detailing a set of operations that had taken place at the institution during which a method of procuring insensibility had been used. This method was the inhalation of sulphuric ether, already well known as a recreational drug that could cause unconsciousness. It had been administered by a dentist, William T.G. Morton, who claimed to have discovered the effects of ether in eradicating pain during dental extractions. Reports of Morton's experimental dentistry sufficiently impressed the hospital's surgical staff that he was invited to perform the procedure in conjunction with two operations at the hospital in October 1846. The first procedure, on a man requiring a jaw operation, was partially successful in mitigating the patient's pain. The second, on a woman with a large tumour on her arm, saw the patient profess to have been entirely pain-free and wholly insensible of her surroundings during the procedure.Footnote ⁸ Together, the two operations were enough to convince Bigelow that he had witnessed a significant new discovery.Footnote ⁹ By the time The Lancet had published his speech, news of the development had already spread among the British medical community.Footnote ¹⁰ On 19 December the London-based dentist James Robinson extracted a tooth from a young woman made insensible by ether. Two days later Robert Liston, a surgeon at University College Hospital, successfully performed a thigh amputation under similar circumstances.

From its inception in Britain, ether inhalation was tightly bound up with questions of priority. The Lancet’s initial publication on the operations in Boston saw news of ether's wondrous effects somewhat checked by the rather earthlier matter of patenting which was already threatening to overshadow it. Taking up almost as much space as the description of the procedure itself, came the news that

The Lancet had not interpreted Bigelow's speech quite correctly. His original report, published in the Boston Medical and Surgical Journal, in fact alluded to a patent taken out by Morton in partnership with Charles T. Jackson for the use of ether inhalation during operations. Jackson was a chemistry lecturer who had formerly taught Morton at medical school, where the two men had often discussed the possibility that sulphuric ether could procure a state of insensibility. Jackson had self-experimented with the substance a number of times, before Morton subsequently carried out a dental procedure on a patient under its influence in September 1846. The naming of Jackson as co-inventor had been the result of negotiations between the two men, and saw Jackson transfer his rights to Morton in exchange for the latter paying him a fixed percentage of any profits he might accrue. However, the two men would later enter into a disagreement, with Jackson claiming to be the sole ‘inventor’ of ether inhalation.Footnote ¹² Morton would also become embroiled in further disputes as other practitioners emerged to stake their claim, the highest-profile of whom was Horace Wells, Morton's former partner in dental practice, who claimed to have discovered a mode of insensibility for operations prior to Morton. The bitterness of the dispute and Wells's fate – he committed suicide in 1848, penniless and imprisoned, while under the influence of chloroform – served as a cautionary tale of the emotional investment of practitioners in their inventions, and the disappointment of those whose innovations failed to be recognized by their peers.Footnote ¹³

The British journals played on the dichotomy apparent in the ether debate, pitching the moral qualities of the invention itself against the attempt to patent it. The humane objective of ether inhalation, to relieve the misery of pain, only served to highlight the unsavoury nature of claims to its personal ownership; and the idea of patenting within surgery, an arena of medicine fraught with physical torment, smacked of cruelty. Resistance against the patent was, the Medical Times decreed, the ‘forcible protest of humanity against the sordid speculator’, and the journal claimed that each operation on British soil was a victory against the mercantile quacks behind the patent.Footnote ¹⁴ The controversy also provided an opportunity for British journals to remind their readers of the distinctly American nature of the scramble to patent, and the commercialism especial to American medical culture.Footnote ¹⁵ American commentators would no doubt have disagreed with such a judgement: despite high-profile support of Morton from Bigelow, his early champion, the majority of practitioners made no bones about their distaste for the patent. As Joseph Gabriel has argued, in mid-century America, medical patents were roundly disapproved of by the profession as strongly as they were in Britain.Footnote ¹⁶

Nonetheless it was quickly apparent that Morton was intent on having his rights upheld internationally, and a patent agent, James A. Dorr, was duly hired to represent his interests in London. In January 1847 Dorr wrote to the medical weeklies, using the correspondence columns of The Lancet and the Medical Times to announce that the use of ether inhalation in England and the colonies was patented and that those practitioners who used it would be liable to charges of infringement if they administered the substance without permission. Predicting in his letter that he would find an unfavourable response, Dorr was perhaps not surprised when his announcement was quickly brushed off on the grounds of impropriety.Footnote ¹⁷ Patents of all kinds, whether they were for instruments, medicines or procedures, were seen as incompatible with the moral mission of the medical profession; they indicated a practitioners’ direct engagement with commercial activity, and thus a prioritization of self-interest over scientific progress and patient care. But it was also the impracticable nature of Morton and Jackson's patent that was singled out for criticism. This impracticability was bound up in the fact that Morton was attempting to patent the administration of ether rather than the drug itself. Although Morton had initially claimed the compound he used was not ether but an original composition called ‘Letheon’, it was widely known that they were one and the same. Thus the claim to novelty which the patent hinged upon was the use of ether as a method of procuring insensibility in surgical operations rather than the substance itself.Footnote ¹⁸ The British press reacted with incredulity. To do so, the Medical Times commented, was like attempting to ‘bind the winds, not less absurd but improper’.Footnote ¹⁹ Francis Boott, a London-based American physician whose house had been the location for Robinson's dental extraction under ether, drafted in a lawyer to comment on the patent and sent the ensuing correspondence to The Lancet. ‘An inventor may have a patent for the manufacture of particular medicinal preparations’, wrote the anonymous QC, ‘but who ever heard of a patent for the performance of a new operation in surgery (as, for example, that by which squinting is cured)? I can see no distinction in principle between such a patent and the patent supposed to be claimed for the administration of ether’.Footnote ²⁰

Thus, while both were morally dubious, the lawyer drew a legal distinction between patenting medicinal compounds and patenting the ether inhalation procedure, the latter of which he judged to be no different from attempting to patent the operation itself. His thoughts echoed the sentiments of many in the profession. If it was well known that Letheon was simply ether, then what was to stop a patient turning up with a bottle of it and administering it to themselves? Would a surgeon still then be liable to pay a fee for its use in the operation? How could any patent be enforced when, for those surgeons working charitably among the poor, fees were so scant anyway? British medical journals speculated upon the myriad difficulties that would lie ahead.Footnote ²¹ They also repeated verbatim American dental surgeon Josiah Flagg's rallying call against Morton's patent: that patented ether was like ‘patent sun-light or patent moon-shine’.Footnote ²² Flagg's turn of phrase has been interpreted as alluding to Morton's attempt to gain ownership of something that was construed by most as a universal right: freedom from pain.Footnote ²³ But his choice of words also suggested the slipperiness, the intangibility, of trying to establish ownership of an immaterial process; ‘what is patented?’ asked Flagg, in relation to Morton's claim, ‘A power? A principle? A natural effect? The operation of a well-known medicinal effect?’Footnote ²⁴ To most in the medical community it was simply unclear.

In America Morton would go on to try several more times to enforce his patent, culminating in an attempt in 1862 to recover infringement damages from the New York Eye Infirmary for their use of ether inhalation. But the case merely clarified the weakness of Morton's claim, which was subsequently voided on account of its lack of novelty.Footnote ²⁵ Nonetheless it was the distinction that the patent clarified between product and method which would be its lasting legacy: the ‘Morton doctrine’ continued to govern the non-applicability of medical method patents in the USA until relatively recently.Footnote ²⁶ Morton's claim soon disappeared from the British press too, and the patent does not appear to have been finalized in the United Kingdom.Footnote ²⁷ Nonetheless Morton, by means of Dorr, had opened up a significant point of debate. In April 1847 Dorr sent a long and impassioned letter to The Lancet. In what was one of the most open discussions of the topic to grace the journal's pages in the nineteenth century, Dorr implored the medical profession to reconsider their disapproval of patenting, or, at the very least, to look to an alternative system which made pecuniary rewards available to medical men. For Dorr, who had clearly detected the ambiguous, complex system of indirect credit and reward at the heart of the profession, rank and honour were hardly a replacement for financial compensation. After all, Dorr asked, ‘what is honour without the means of subsistence?’Footnote ²⁸ No reply was ever published.

Surgery and cultures of credit

That patenting was, for both moral and practical reasons, seen as inapplicable to medicine and surgery did not quell the subject of reward for practitioners. On the contrary, it likely exacerbated the issue. After all, doctors had only to look beyond their profession to notice the disparity between rewards for medical inventions and those for other forms of innovation. As Dorr put it in his plea to the profession, why should not Morton have been ‘entitled to compensation as he who makes an improvement in the manufacture of woollen or other fabrics’?Footnote ²⁹ Dorr may have had a vested interest in the matter but, as the century progressed, the lack of pecuniary rewards for surgeons appeared increasingly discordant with trends in both surgery and in innovation more generally. In the middle decades there was growing recognition in Britain of the contributions made to society by inventors, embodied especially in engineers like Isambard Kingdom Brunel, George Stephenson and James Watt. This resulted in growing calls for inventions to be better recognized, legally and financially, and reinvigorated a lengthy campaign by manufacturers, inventors and other interested parties for wide-scale amendment to patent law, principally to increase the year-long tenure that patents could be held for, and also to reduce their initial price. The Patent Amendment Act, which fulfilled both these criteria, was passed in 1852.Footnote ³⁰ Meanwhile, in surgery, visible and dramatic innovations were taking place that were changing the landscape of practice.Footnote ³¹ The introduction of abdominal surgery was heralded as a striking innovation, and was most clearly embodied in ovariotomy, a procedure to remove large non-malignant ovarian tumours, that had begun to be performed in Britain in the early nineteenth century and had become part of established practice by the 1860s.Footnote ³²

Although borne of innovations from a range of countries, ovariotomy was cherished as a British invention.Footnote ³³ Indeed, retaining British ownership of the operation became increasingly important in the face of French surgeons beginning to take up the operation in the 1860s. Looking to France exacerbated concerns in Britain about the relative paucity of rewards for surgeons. In France there was a long tradition of incentivising contributions to medicine and surgery through prizes and both the French Academy of Science and the French Academy of Medicine offered rewards for innovation. This included the prestigious Prix Barbier which had been established in 1846 with three sub-categories, one of which was specifically for the invention of instruments, operative techniques and surgical sundries, such as bandages.Footnote ³⁴ In 1863 Eugene Koeberlé, at that point one of very few surgeons who performed ovariotomy in France, was awarded the prize, worth two thousand francs, by the Academy of Medicine for having performed two successful ovariotomies; this despite Koeberlé being, in the view of the British Medical Journal, ‘merely a copyist of the English in the matter of ovariotomy’.Footnote ³⁵ While some medical prizes did exist in Britain, dispensed through institutions like the Royal College of Surgeons of England, they were sparse, and their pecuniary value was considered paltry in comparison to those given out by institutions across the channel.Footnote ³⁶ The prospect of state reward was also unlikely. While there had been a relatively well-established system of parliamentary reward for scientific and technical innovation in Britain during the eighteenth and early nineteenth centuries, the best-known medical recipient of which had been Edward Jenner, the system had all but disappeared by the middle decades.Footnote ³⁷ In 1872 the physician and journalist Andrew Wynter, in an essay for the Edinburgh Review on the progress of medicine and surgery during the last fifty years, reflected on the medical profession's thankless pursuit of innovation. Singling out chloroform anaesthetic and ovariotomy as key examples of British industry, Wynter protested that ‘some tangible evidence should be given that the nation appreciates the sacrifices daily and hourly made by those who devote their energies and their talents to the promotion of its physical well-being’.Footnote ³⁸ Wynter's protestations, like Dorr's, appear to have fallen on deaf ears.

In 1867 the Birmingham surgeon Sampson Gamgee set off on a two-week holiday to Paris in which he took in both the World Fair and the state of surgery in the city. Gamgee wrote to The Lancet about the trip; ‘many are crowding to Paris, and wondering at the progress made by the French nation in a variety of manufacturing and industrial departments, in which, not many years ago, we enjoyed a clear, and scarcely questioned, supremacy’, he observed.Footnote ³⁹ His investigation of French surgery was likewise infused with the language of comparison as he diplomatically negotiated his way through similar and contrasting aspects of French and British surgical practice. Gamgee depicted French surgeons as organized and well educated – indeed perhaps too well educated – at the cost of their practical abilities. British surgeons, on the other hand, he viewed as practically minded doers, who were more fearless as operators. Gamgee stretched out this analogy to British industry as a whole:

It was these uniquely British characteristics of courage, practicality, persistence and boldness that for Gamgee both defined British surgeons and engineers and enabled them to retain their standing even in the face of national competition. And yet, while it became increasingly acceptable for engineers to patent their inventions, relatively free of accusations of moral impropriety, surgeons were bereft of official channels through which to make similar claims. For the surgical community it meant that claims to ownership had to be legitimated through other means of authority, of a specifically medical kind.

Different modes, different plans: publishing and priority disputes

In 1837 The Lancet ran an editorial about doctors’ excessive interest in credit and priority. The journal complained,

There was an irony to The Lancet’s words: the emergence of the weekly medical press, with the significant space it set out for correspondence and subsequent speedy responses, made it fertile ground for disputes that had no means of being satisfied through other channels like patenting. While, ostensibly, editors like The Lancet’s Thomas Wakley did not approve of this trend, this certainly did not preclude them from publishing such disputes and, at times, seemingly encouraging them. Nor did possible associations with unsavoury self-interest stop practitioners airing their grievances publicly. As we have seen with the example of ether, it was through journals that these claims and disagreements were actively shaped and mediated. The growing importance of the medical periodical as a tool of professional cohesiveness meant that not only did they facilitate debates but, as self-declared upholders of professional ethics, they often acted as judges when claims were disputed.Footnote ⁴² In the following I show how claims to surgical innovation functioned through channels alternative to patenting: through interwoven strategies of eponymy, publishing and publicized disputes in the correspondence columns of medical journals. I purposely employ the term ‘credit’ to consider them. This is not only because that was the term frequently used during discussions of priority, but also because it conveys the somewhat obscure relationship between honour, attribution and financial profit underpinning them.

Attributing credit to surgeons, both past and present, can be complicated. Medical sociologists Judith P. Swazey and Renée C. Fox have argued that this is because multiple types of priority hover around surgical innovation. Priority for performing a new operation for the first time may differentiate from priority for performing a new operation successfully for the first time, or priority for being the first to publish on it.Footnote ⁴³ Building on Swazey and Fox's argument, a close examination of the way surgical priority played out in the nineteenth century suggests that credit claims could in fact be even more multifaceted than they suggest. Surgeons frequently wrote in not only to claim the first performance of a new operation, but also to claim new modifications on an existing procedure or for an instrument designed to complement a new operation.Footnote ⁴⁴

Indeed, it was the constant modification and lack of standardization in surgery that could make disputes over credit particularly perplexing, as surgeons developed and changed procedures, often while in the middle of surgery.Footnote ⁴⁵ This was frequently followed by an eager letter to a journal describing a new ‘mode’ or ‘plan’ for operating. That was certainly the case with one of the oldest procedures in surgery, the removal of cataracts. Cataract surgery in its modern form had originated from France in the mid-1700s, but over the nineteenth century it was subject to numerous modifications by surgeons across Europe, with flurries of activity and innovation occurring periodically. ‘Perhaps no operative procedure in the whole range of surgery offers such an embarras de richesse as that of removing a cataract’, commented Newcastle surgeon Christopher Jeaffreson in 1886. He went on, ‘the names and inventors of cataract operations and cataract instruments would, I verily believe, fill a column of The Times newspaper, and some of these inventors, I am uncharitable enough to think, would be well pleased to see such a list in print’.Footnote ⁴⁶ Jeaffreson's observation appeared to allude to a yearning among ophthalmic surgeons to have their contributions publicly recognized in what was a crowded market for innovation. Jeaffreson counted no less than fourteen modes to the operation, each using a different type of incision, which he grouped together in an accompanying illustration (see Figure 1).

Figure 1. C.S. Jeaffreson's illustration of fourteen plans for operating in cataract surgery. C.S. Jeaffreson, ‘Clinical lecture on cataract’, The Lancet (1886) 127(3262), pp. 434–437, 436.

As the image conveyed, connecting one's name to a particular technique was one obvious route through which to ensure a close degree of association with a new procedure, and eponymy was often employed in relation to both operations and instruments, although probably more so with the latter. As Claire L. Jones has shown, in the case of instruments and devices, eponymy was viewed as a legitimate, morally acceptable way to claim ownership. Most surgeons who invented or modified devices freely gave their designs to manufacturers and received no direct financial compensation. But as Jones highlights, eponymous instruments could enhance the reputation of both manufacturers and medical men. In surgical trade catalogues, the close associations between individual surgeons and their instruments could be an important promotional technique.Footnote ⁴⁷ This speaks to the broader symbiotic relationship between surgeons and ‘their’ instruments: the most popular instruments tended to be those made by high-status surgeons, whose names suggested the trustworthiness of the tool. In ovariotomy, for example, the instruments devised by the most famous practitioner of the operation, Thomas Spencer Wells, were the most highly regarded, and Wells was particularly good at maintaining his profile in the field with numerous instruments of his design.Footnote ⁴⁸ The popularity of such instruments could then work to further reinforce a surgeon's name and reputation, which in turn likely increased the possibilities for lucrative private practice. However, because financial reward and eponymous recognition remained indirectly connected, this enabled surgeons to frame their use of eponymy over patenting as a matter of pure altruism. A retrospective article from the lay press in 1949, on the prolific American surgeon James Marion Sims, who had numerous instruments named for him (such as Sims's speculum, and the Sims catheter) recalled, ‘Another distinguishing feature in his life was his utter unselfishness. Millions of dollars would have flowed simply by his retaining rights on his numerous inventions of surgical instruments. He refused all monetary returns; he gave them freely, he took out no patents.’Footnote ⁴⁹ Sims would, however, build up a large private practice of wealthy patients across Europe and America during the middle decades of the century.

Nonetheless eponymy alone could not be counted upon for ensuring and maintaining credit. For surgeons, publishing was also becoming essential to establishing claims. Turning back to ovariotomy, the operation provides an interesting example of how this could play out. As has been described above, the operation had been in practice in Britain since the late 1830s, although only accepted by the majority of the profession during the 1860s. One of the most prolific performers of the operation in its early days had been Manchester obstetrician Charles Clay, who had performed his first ovariotomy in 1842 and who had also been the first surgeon to enlarge the abdominal opening from a ‘minor’ incision of a few inches to a ‘major’ one of around twelve. Clay, along with other early practitioners of the procedure, had been subject to many derogatory comments in the early days of the operation, those opposing ovariotomy declaring Clay and his contemporaries ‘belly-rippers’ for venturing into the abdomen. Although a successful operation could result in a complete cure, it was also a dangerous procedure and around a third of patients died during it or soon after. Thus by no means all were convinced that the risk of the operation was worth taking.

When the operation did begin to garner widespread support it would not, however, be Clay's name most closely associated with its transition in status, but another man's, the aforementioned Thomas Spencer Wells. In the 1860s Wells had also become a regular practitioner of the operation some twenty years after Clay had begun, and in 1865 had published a book, Diseases of the Ovaries: Their Diagnosis and Treatment. The book was quickly regarded as influential. But Wells's success was less to do with his mortality rate – which at around one-third was about the same as Clay's – but rather with the way he represented his cases. Clear, concise statistics recounting the hundreds of patients who had come under his care, as well as detailed notes for each, the book was an unprecedented collection of published material on the operation. Seventeen years younger than Clay, Wells's understanding of the necessity of publishing to secure credit had been shaped by a rapidly expanding world of medical print culture. Clay, on the other hand, had never seen fit to publish all of his operations. The result was a bitter dispute between the two men that began around the time Wells published his book. Wells wrote,

For Wells, then, despite Clay's assertion that he had performed the operation 111 times, only his twenty-seven published case reports counted. The onus was increasingly upon surgeons to publish to ensure that the rest of the surgical community could also, in a sense, witness their operations. This was viewed as particularly important in the field of ovariotomy, where fears had long abounded that failed cases were going unreported.Footnote ⁵¹ Wells's refusal to adequately acknowledge Clay led to the two practitioners offering very different interpretations of how credit should be defined. Wells indicated that cases had to be connected together in a series, preferably as a monograph, to bring clarity to one's results, and thus ascertain credit. But for Clay, credit was constructed differently and more closely bound to originality and priority.Footnote ⁵² For him, the fact that he performed the first successful ovariotomy by major incision in England, and then performed it consistently, was enough to define him as the first credible ovariotomist in England. ‘If I had not been the pioneer for this operation in 1842, and for years after that, alone and unsupported,’ Clay would later claim, ‘neither ovariotomy as an operation, nor Mr. Wells as an ovariotomist, would most probably be heard of at this time.’Footnote ⁵³ His words evoked a romantic image of the isolated inventor who had risked his reputation in the name of progress.Footnote ⁵⁴ Clay also emphasized the idiosyncratic nature of surgery, at times suggesting a polarity in his and Wells's methods, and thus intimating that their operations were entirely different from one another.Footnote ⁵⁵

Ultimately Wells's claim to ovariotomy won out, buttressed by his impressive publication record. Clay's reputation, on the other hand, was severely damaged when he accused Wells of performing unnecessary and risky operations in pursuit of large fees, the Manchester practitioner having made the mistake of crossing the highly policed, albeit paper-thin, line between questions of credit and questions of commerce.Footnote ⁵⁶ In 1880 the controversy had been once more revived when the British Medical Journal published an editorial celebrating Wells's thousandth ovariotomy and commending the surgeon for establishing the operation. Clay wrote furious letters to the journal, demanding that, as it seemed to view itself ‘a judge of equity in professional matters … you ought to be the better able to act fairly in this matter’, thus positing the journal itself as arbiter.Footnote ⁵⁷ The journal nonetheless maintained that credit for ovariotomy was rightfully Wells's, who would reap the rewards in real terms, and become a substantially richer man than his rival. In what could only have been an allusion to Wells, who had become a surgeon to the Royal Household in 1863 and was created a baronet in 1883, Clay was in the habit of telling friends near the end of his life that ‘some men have got baronetcies, some wealth, some positions at Court, but I have got peace of mind’.Footnote ⁵⁸

The road to credit and priority could be difficult for surgeons of the nineteenth century. Claims to credit had to be negotiated with care, and within the closely policed boundaries of medical etiquette. The benefits of establishing a personal connection with a successful innovation were clear: intellectual credit could transform into social and financial credit. Nonetheless, as the case of Charles Clay demonstrates, such claims were rarely fully secure. Rather, they had to be constantly maintained in the face of subsequent competitors who could potentially overshadow earlier contributions.