Cover Image: Owning the Sun

Owning the Sun

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This was not an OMG amazing read for me, I couldn’t really get into it with the mood I’m currently in
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It is not bad enough that meds cost a lot. Or that they mysteriously cost more in the USA than anywhere else, despite being Proudly Made in USA. Drugmakers have managed to turn laws, justice, healthcare, trade agreements and even foreign policy upside down for their own benefit. The constitution, free trade, IP law, patents, the FDA, the FTC, the WTO and even the COVID-19 pandemic are being co-opted and abused to raise Big Pharma above the law and make it invulnerable. In Owning The Sun, Alexander Zaitchik pulls together the absolutely astonishing history of how US drugmakers bullied and lied their way to overturning anything and anyone who stood in their way. By hammering at it ceaselessly, they have convinced every administration that they could not survive unless they operated absolute monopolies in their products. And so their monopolies are sanctified. And continually reinforced and improved with new laws. It is never enough.

The result is drug prices that bear no connection whatsoever to their cost, their sales volumes, or even their effectiveness. Pills that cost nineteen cents apiece can be priced at hundreds of dollars per pill, and there is no one anywhere who can say no. They can ignore entire countries because they would not be profitable enough, and no substitutes are allowed. They are in effect, killing people at will. And again, there is no one who can say no. Put this book down at your peril; it is critical to know how this came to be.

Here's how it used to be. The Founders were against patents. Period. The USA was renown for ignoring patents, trademarks and copyrights from other countries. The attitude in America was to be open, to share. For example, Benjamin Franklin patented none of his inventions, not even the ubiquitous Franklin stove. He fully expected someone to improve on it. Chemists couldn't wait to publish test results, so that others might be inspired to find the next step. For anyone to claim the ultimate product as their exclusive own simply because they added the latest touch was unheard of, unacceptable and immoral.

Zaitchik cites Joseph M. Gabriel, "the preeminent historian of nineteenth-century American medical ethics and mores:" “For most physicians, there was little difference between patenting and secrecy when it came to drugs. Both were considered unethical forms of selfish monopoly. Indeed, it was generally assumed that patented remedies and quack nostrums were the same thing.” 

Patent medicines were a joke. Anyone who patented a pill or a syrup was up to no good. Zaitchik says they were products offered "by P. T. Barnum and other fraudsters of bright plumage and no scientific training."  Some patent medicines could kill, most were worthless, and makers settled on the cheapest ingredients available.

American drugmakers were not only against patent medicines, they used to be solidly behind full disclosure. Zaitchik says Francis Stewart, CEO of Parke-Davis in 1909 "argued that patents blocked competition, suppressed innovation, and incentivized companies to delay publication and otherwise obstruct the free flow of information that is central to the scientific enterprise. Monopolies, Stewart concluded, 'make the existence of professional pharmacy impossible.'” 

Drugs in particular needed this kind of scientific openness to generate their value. There could be no progress without sharing. Patents would cut off access and raise prices, the Founders said, before the fact. This could never be allowed in the new United States of America. The American government was only too pleased to help. It generously funded research and whole laboratories in the frenzied search for healthcare solutions. Without government largesse, meds would be precisely nowhere today.

And yet. Over the decades, the drugmakers nibbled at government, obtaining seemingly minor changes here and there, that appeared mostly harmless at the time. Brand names were permitted alongside chemical names. Patents were allowed. Patents were extended. Generics were driven out. Patents were granted even without novel molecules. Patents were allowed for a change in packaging or delivery. Patents were allowed for every process of every component within a product. Big Pharma forced its model on the rest of the world, still stuck in the silly sharing mode. And finally, everything became a trade secret.

When they grew big and arrogant enough, drugmakers expanded their pressure outwards. Switzerland did not allow drug patents until 1977. Italy and Sweden began allowing them only in 1978, and Spain in 1992. And that was before the real pressure was applied to give it total monopoly globally. 

Back in the USA, the drugmakers scored victory after victory. The government itself was cut out of the profits from its own funding grants. One might think that the group providing the money, the facilities and even the scientists would retain an ownership stake in the final product. But in the USA, that would be incorrect. Idiotic fights broke out in Congress over government ownership of its own discoveries by government scientists. It was nailed down during the Reagan administration; government was the problem, not the solution. Government could spend, but not take part in the fruits, only the failures. Some in Congress could not believe anyone would think government was entitled to participate in the success of its investments. They spoke loudest, fueled by the industry. They turned the world upside down.

To understand just how perverse this is, imagine it wasn't pills but nuclear weapons, and (say) Raytheon claimed total ownership of the resulting atomic bomb, and the government had no say in where it was sold, to whom it was sold, or the price. That's America's Big Pharma model.

Zaitchik says after the FDR New Deal era of regulation, Harry Truman was forever vetoing bills to give the government less privilege than the employers it regulated. Because (as George Carlin said) Democrats were all about people, and  Republicans were all about property. They kept coming back for more property rights. Pushed by drug cash, their absurd claims have led to ever longer intellectual property rights as trademarks, copyrights and patents, and unassailable monopoly status for the corporations owning them. Not even Donald Trump could get them to lower a price. They've locked it in and bow to no one. 

Meanwhile, sane people on the outside pointed to how absurd it was, throughout this whole slide to oblivion. "If a self-respecting government patent policy were to result 'in hesitation on the part of large industrial concerns to participate in the work,' declared Phillip White, of the Rockefeller Institute, 'this will be all to the good, since such concerns do not need Government support, and small businesses and the general public stand only to gain from a rigorous patent policy.'” 

But the whole game was precisely to cut out small business. Keep everything possible out of the hands of competitors, and enjoy the resulting monopoly, milking consumers for all they were worth. And if consumers could not pay, they might as well die, because they were of no possible use to drugmakers.

The one big reversal came in October of 1963, when President Kennedy issued an executive order saying: "the government shall normally acquire or reserve the right to acquire the principal or exclusive rights to any inventions made in the course of or under the contract." Sanity at last, but not for long. 

In 1980, the Bayh-Dole bill would force the government to prove the  drug produced from its investment would perform better in its hands. Then Reagan applied it to all products from all corporations. Things just got crazier and crazier, and the drugmakers lapped it up. By the time Reagan signed his executive order, “The stage has perhaps been reached at which almost every biological advance discovered in American universities is made by, or made known before publication to, someone who has a possible commercial interest in keeping it secret," Zaitchik says. The exact opposite of the Founders' intentions.

Today, universities are as bad as as the drugmakers, racing to file patents, building up patent portfolios at all costs, and defending them from anyone seeking to improve on them or just use them.  Again, thanks to massive government subsidies. Big Pharma disease has infected the most sharing sector of society, higher education.

At the same time, the drugmakers attacked the generics, usually manufactured by small independent outfits. The idea of the patent was to protect the inventor for a short period of time. It was always meant to expire. Once off patent, anyone could make the chemically identical drug, using the description in the patent. But that would interfere with the monopoly. So Big Pharma campaigned to poison generics in everyone's mind. They called them unethical (!) fraudulent and a threat to public health. Only recognized brands could be trusted. By 1970, they had convinced all 50 states to ban generic drugs.

Zaitchik says: "What kind of industry can weather the rise of competition that undercuts its prices by 65 percent, on products accounting for 40 percent of its market, and not only maintain its profit margins, but actually increase them? An industry with monopoly control of the remaining 60 percent." 

When meds got so expensive that the states had to allow generics again, Big Pharma found ways to stop them anyway. They would make a small change in the drug or the package and obtain a new patent, starting the clock all over again. Or they would simply pay the generic maker to delay production for a few years. The generic maker would receive a large payment for doing nothing at all, and the payment hardly made a dent in the profits that continued to pour in for the branded version. This gave drugmaker time to make a patentable change in the formulation. In the drug biz, this is known as evergreening. They're not even the least bit ashamed of it.

The big drugmakers got it down to the point where 10% of branded drugs (with extended patents) accounted for 80% of drug sales. This means that even if generics were available on 90% of drugs, their share would be tiny. Some drugs show 100 attempts to extend patents. No other developed nations allows this price gouging.

But that wasn't enough. Big Pharma went after generics where they lived, like India, whose generic industry got a big boost from the UN itself. A (rare) genuine success story. It was a healthy industry, producing inexpensive generic drugs for a poor nation. American drugmaker Pfizer called it "an outrage that constituted an attack on 'the principle underlying the international economic system.'”

"In fact, no such principle underlay the international economic system," Zaitchik says, in his lovely, direct and hard-hitting way. "The deepest patent traditions were territorial. Drug patents, as the Pfizer executive well knew, had extremely shallow roots even in the richest countries of the north, where they cut against centuries of moral, ethical, legal, and scientific norms. It was not the 'pirate nations' of the global south and Far East who were waging war on norms and principles. It was Pfizer." 

But it still wasn't enough. Bill Clinton sent the sainted Al Gore to third world countries to threaten them with loss of aid and massive economic sanctions unless they made their patent systems match America's.  The immediate result was a multiplying of the cost of meds in those countries, and the poor, ie. most of the people, had to go without as no non-branded choices were permitted any longer.

Clinton's actions had just as big ramifications back home. The Economic Espionage Act of 1996 enshrined Trade Secrets. Any kind of “undisclosed information” was eligible to be a trade secret. "Unlike patents," Zaitchik says. "claims on 'undisclosed information' have no term limit. This voids the original patent bargain not once, but twice. It keeps knowledge central to the invention from entering the public domain, and in doing so unnaturally extends its control of the market. Instead of providing society with meaningful collateral in exchange for a temporary monopoly, companies hand off partial maps to technologies they have no intention of revealing in full— fragments intended to frustrate, obfuscate, and occlude, providing knowledge that’s necessary but not sufficient to actually make the thing." Everything, but absolutely everything became a trade secret. User directions, marketing materials, everything. Big pharma closed the loop, making itself completely untouchable, forever. It made once precious patents a meaningless waste of time. Now everything was protected.

The nonsense became clearly visible with COVID-19 vaccines, as Big Pharma flat out refused to share anything at all, then complained about China, which had been totally open and sharing. Working with Australia, China immediately published the initial genomic footprint of the virus, so that vaccines might be developed all over the world. But manufacturing facilities with spare capacity remained empty as Big Pharma kept everything a trade secret. Bottlenecks in supply and playing one country off against another in pricing ran rampant and kept third world nations vaccine-free. This is the benefit of monopoly. Millions die in the name of trade secrets.

One person who bought into the lies big time was Bill Gates. He spouted the drugmakers' monopoly credo unreservedly. The COVID-19 pandemic could only be handled with branded vaccines in private hands. Price, availability and distribution would utterly fail if public entities were allowed in on the deployment. The Bill and Melinda Gates Foundation, which has been accumulating power for decades, dictated how vaccinations were to work outside the global North. The result has been an acknowledged total disaster, with vaccines essentially unavailable throughout the South, thanks to Bill Gates. The new, kinder, gentler and more generous Bill Gates is the same old greedy, vicious Bill Gates, posing as an elder statesman. 

I will never forget in the early years of the web, when Microsoft engineers produced a graphics-capable browser to be used in Windows for accessing the internet. At the internal presentation, Gates wanted to know what its price would be. When told it was meant to be free with Windows, Gates screamed at them "That's Communism!" So with medicine. Gates gets his own whole chapter in Owning The Sun, the only individual so honored.

The examples are endless. Big Pharma is damned by its own words and actions. Continuously. There is an entire chapter on AIDS, where Big Pharma decided that AZT would cost ten thousand dollars a year, for life. A nice annuity from each Northern customer. But South Africans couldn't afford it, so the country quickly became the black hole of AIDS deaths. Big Pharma never even blinked. 

Zaitchik doesn't even mention it, but this immediately reminded me of the more recent campaign to block drug imports - of their own drugs - from other countries. In Canada, a major, close and safe source for these imports, prices are typically nothing like American prices. I clearly remember one annoyance - antihistamines. Claritin and Zyrtec were actually prescription drugs in the USA, and cost $120 a bottle. In Canada, they were off the shelf antihistamines, costing $20 a bottle, and if you pulled the $2 manufacturer's coupon out of the dispenser, even less. 

The nerve of some Americans to buy Canadian infuriated the drugmakers. They developed a paranoic campaign lambasting the Canadian import as counterfeit, fraudulent, ineffective and potentially dangerous for Americans to take - even though they were the same drugs made by the same company. They hammered at it until it became illegal - a crime involving sending foreign-sourced drugs through the mails. Anything for a buck.

There were some brave people in government who tried their best to push back. People like Thurman Arnold and Estes Kefauver are thoroughly profiled, and their efforts thoroughly recounted. But money talked louder than they could as Big Pharma simply rode out the storms while working behind the scenes to grab even more power. It is all documented here in direct and incriminating detail, told dramatically by Alexander Zaitchik.

The unstinting selfishness of Big Pharma still knows no bounds: "'We did not develop this product for the Indian market, let’s be honest,' said Bayer CEO Marijn Dekkers when asked by a Bloomberg reporter why his company didn’t license production of its cancer drug Nexavar in India. 'We developed this product for Western patients who can afford this product.'"

If the powerful and fast-paced Owning The Sun doesn't cause headlines and create a major scandal, nothing will. 

The Founders would be aghast.

David Wineberg
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Owning the Sun is probably more of a 4-star book in most respects but the importance and timeliness of it bumps it up to a 5 for me. This is not a book of ranting and raving, or even just a book about the moral bankruptcy of monopoly medicine and big pharma. This is a detailed history with the dots being connected.

This is a far more nuanced problem than most of us realize. I can come up with a couple of valid and pithy comments to sum up my feelings against monopoly medicine, just as those supporting it can likely do so as well. The problem is that those simplified talking points will emphasize one r two aspects of the issue that suits our respective positions. This book, while more in line with my thinking than those supporting capitalism over human lives, lays out the subtle changes that developed over the years so that intellectual property has become the sledgehammer with which the rich and powerful can pound most of the world into poverty and poor health, all in one monstrous blow.

I would recommend this book to everyone concerned about the ways in which the claim of intellectual property, even when funded in large part by government, serve only to line the pockets of those who actually had little or nothing to do with the initial discovery (think Shkreli for example). There are ways to combat this and make medicine about, oh, I don't know, maybe helping people live healthy lives rather than bankrupt them to pay for C-level yachts. This book arms us with the knowledge of how we got here so we can change course.

Reviewed from a copy made available by the publisher via NetGalley.
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