File No. 300.115/5930a
The Secretary of State to the Ambassador in Great Britain ( Page )1
2402. Your No. 3066, October 21. Before giving suggested instruction, Department desired accumulate tangible evidence of conditions which were stated to make request to British and French Governments desirable and urgent. Department now has in its possession copies of letters patent, Nos. 986,148 and 1,053,300, issued by United States Patent Office March 7, 1911, and February 18, 1913, respectively, covering drug compositions salvarsan and neosalvarsan. Under provisions Section 4884, Revised Statutes, United States, patentee, his heirs or assigns acquire by such letters patent exclusive right make, use and vend invention or discovery throughout United States and its territories for period seventeen years.
American representative of assignee of these patents has furnished Department with following documents:
- 1.
- Sworn statement that there are still unshipped on orders placed by him with German manufacturers on November 16, 1914, 85,000 ampoules these drugs.
- 2.
- Sworn list orders placed with him by hospitals and other similar institutions during thirty-eight days September 16 to October 23 last, both inclusive, showing 313 such orders for total 3,642 ampoules these drugs.
- 3.
- Sworn statement that in addition these hospital orders he has received similar orders from 3,164 individual physicians for aggregate 31,000 ampoules.
- 4.
- Sworn extracts from letters from forty-one physicians located in twenty different states, each requesting shipment these drugs for use in urgent cases, in some of which saving of life is said to depend on ability obtain drug.
- 5.
- Sworn copy of letter addressed, on October 8, last, by
Poulenc Frères, Paris, to Parmele Pharmacal Company, New
York, the writer being same company which, according your
number 2975, October 9, French Government states is prepared
supply drug identical with neosalvarsan in form neoarseno
benzol, which letter states in part:
In order make introduction our products possible in United States American Government would have to take steps similar to those taken by English Government.... They would have to grant licenses manufacture all patent German products unobtainable in American market as result prevailing conditions.... In case such license should be granted we could not consider sale our products in United States only as long as the war lasts in fact, we would have to increase our output considerably in order fill numerous orders we would receive. As this would require very extensive equipment we would not consider matter in case we would only have access to American market for a few months....
- 6.
- Sworn copy judgment District Court United States, Eastern District of Michigan, dated January 12, last, upholding validity letters patent, No. 986,148, perpetually enjoining one Albert C. Smith [Page 259] and his agents from selling or using in the United States the drug which he had offered as substitute for salvarsan. Judgment also required payment to plaintiff all profits derived by defendant from sale of infringing article, damages sustained by defendant from infringement and costs litigation.
- 7.
- Sworn statement showing deposits by American representative with manufacturers on April 19 and May 21 last of marks 981,927 and present balance remaining for payment pending orders, marks 902,346.
Department is receiving petitions from physicians and medical organizations explaining urgent need for salvarsan and neosalvarsan and soliciting Department’s aid in obtaining these drugs although it appears writing of such petitions has been discouraged by American distributor.
It appears evident from above-mentioned documents there is large and urgent demand in United States for these drugs and that much suffering is resulting from lack thereof.
If, as stated by French Government, product of Poulenc and Company is identical with neosalvaran, its sale in the United States would doubtless constitute infringement of patents granted by United States Patent Office. Furthermore, even though Poulenc Company, contrary to statement in its above-quoted letter, were willing sell its products in United States under present conditions, it would admittedly be unable supply present demand, and it seems improbable any one would undertake responsibility selling such presumably infringing article. Moreover, it is represented to Department that use of substitutes for salvarsan and neosalvarsan has in some cases resulted unfavorably and that use such untried substitutes, if obtainable, would be experimental and not generally adopted.
You will bring foregoing facts to attention Foreign Office and unofficially request that, in view existing legal situation, the insignificant benefit that would result to enemies Great Britain and France, and out of consideration for the numerous unfortunates whose suffering is apparently being aggravated by lack these drugs, British and French Governments agree to permit shipments from Germany of such quantities thereof as will supply urgent needs medical profession in United States.
Department instructing Ambassador, Paris, make similar representations French Government.
- The same, in substance, to the Ambassador in France, No. 1180, November 3.↩