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Déjà Vu for Bayer

Threatened loss of Cipro's patent nothing new to drug giant

WEDNESDAY, Nov. 7, 2001 (HealthDayNews) -- Although it probably won't happen, the recent talk about suspending the patent for the anti-anthrax drug Cipro had the drug's maker, Bayer A.G., on the verge of reliving its worst corporate nightmare.

At the end of World War I, the German company ran into similar problems with the patent it held on another drug in high demand: aspirin.

"Bayer has a long history of protecting its property," says Jan McTavish, a medical historian and professor of history at Alcorn State University in Mississippi. "They understand the value of patents and trade names."

In 1899, Bayer became the first company to make and sell the world's first pain-relieving medication, acetylsalicylic acid. "It was a big deal," says Charles C. Mann, a correspondent for Science and co-author of "The Aspirin Wars: Money, Medicine and 100 Years of Rampant Competition." "At that time, the whole idea that medicine could take away your pain was completely unheard of. Aspirin was hugely popular and a major profit source."

At a time when both patenting and trademarking were frowned upon by members of the pharmaceutical industry, Bayer did both, patenting the drug in the United States and trademarking it worldwide under the brand name Aspirin. "Drugs were considered public property," says McTavish. "Bayer said 'no' and, wherever it could, got patents on its products."

The patent on Bayer Aspirin lasted 17 years (the maximum allowable by law) and expired in February 1917, almost exactly the moment that the United States entered World War I. The trademark, though, was still the property of Bayer and the company fought tooth and nail to keep it -- ultimately, to no avail.

The Alien Property Custodian, a wartime office charged with seizing enemy-owned assets on U.S. territory, was entitled to confiscate all German property -- intellectual and physical -- and that included the Bayer and Aspirin names. On Dec. 12, 1918, when the war had ended, all of Bayer's assets, including the names, were auctioned off to an American company, Sterling Drug.

In the 1920s, American courts dealt a huge blow to Sterling when it allowed Aspirin to be used as a generic term at the retail level. Other companies began selling the compound under that name, capitalizing on Bayer's huge advertising campaign initiated before the Great War. In Germany, Canada and many other countries, Aspirin is still a trademark (hence the capital A) and if you ask a pharmacist for aspirin, you will get Bayer Aspirin.

Sterling was sold in 1988 and, in 1996, Bayer A.G. of Germany succeeded in buying back the Bayer name.

Last month, the battleground shifted to Cipro (Bayer's brand name for the antibiotic ciprofloxacin) and whether that patent should be revoked so other companies could start producing the drug, which is approved to treat anthrax.

On Oct. 24, however, Bayer came to an agreement with the U.S. Department of Health and Human Services to sell Cipro to the government at a vastly reduced price. The patent for Cipro is currently set to expire in December 2003, but it may actually be extended if Congress votes to pass legislation granting a six-month patent extension to companies that agree to participate in pediatric clinical trials.

Even when Bayer loses the patent for Cipro, it retains the trademark -- others can make the drug, but not under the same name. And in recent weeks, that name has increased immeasurably in value. "Every American has now heard of their drug," says Mann.

In fact, it's about as well-known as that other drug that works wonders.

What To Do

Click on Bayer for the official site celebrating 100 years of aspirin.

Read this release from the Department of Health and Human Services signaling why, in the case of Cipro, history isn't likely to repeat itself for Bayer.

SOURCES: Interviews with Jan McTavish, Ph.D., assistant professor of history, Alcorn State University, Lorman, Miss.; Charles C. Mann, correspondent, Science magazine, and co-author (with Mark L. Plummer), "The Aspirin Wars: Money, Medicine and 100 Years of Rampant Competition"; The Trademark Reporter and Dictionary of Trade Names, both courtesy of the International Trademark Association, New York
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