A Corner on the Market

Early in January 1932 the Research Corporation's lawyer, A.P. Knight, completed a draft application for a patent on the cyclotron, an instrument to produce high-speed ions by successive impulses "in a compact or relatively small apparatus." The ions, according to Knight, might be "utilized in any suitable manner, for example, for application to the disintegration or synthesis of atoms, or for general investigations of atomic structure, or for therapeutic investigations or applications." (Here the lawyer foresaw applications that Lawrence, still mired in machine design, probably had not; lawyers might be useful adjuncts to research teams.) Knight claimed injecting, accelerating, focusing, deflecting, and extracting the ions as patentable. The patent examiner rejected them all, as was the custom, enforced greater precision in language, and allowed the claims in September 1933.^[113] The patent was granted in February 1934.

Shortly after the Research Corporation received Lawrence's assignment of rights in the cyclotron, its leaders visited Berkeley

to see the cyclotron in action and to encourage its inventor to stay alert to patentable material developed in the Laboratory. Lawrence became almost an agent for the Research Corporation. In September 1933 he proposed patenting the water-cooled anode at the tip of the coil in Sloan's x-ray machine; in 1934 he wanted to patent a cheap cloud chamber for lecture use; in 1938 he brought Beams' ultracentrifuge to the Research Corporation; in 1939/40 it was the turn of a new oscillator developed by Sloan and Lauriston Marshall, and in 1941 of an application to industrial radiography by a Berkeley engineer. Lawrence wrote the engineer, for whom he interceded with the Research Corporation, without a hint of the old physicist's ethos: "If you are going after any patents along this line, you have my blessing."^[114]

The apparently fallow years in the preceding recital were, in fact, Lawrence's busiest and most vexatious time with patent affairs. A week after he had identified Na²⁴ , he recommended his discovery to Knight and Poillon as "almost ideal for biological work," a novelty that "might ultimately supersede radium in usefulness." He added that by running fast enough, Knight could get an application to the Patent Office before news of Lawrence's type of radiosodium appeared in print. Poillon was ecstatic: the discovery fulfilled half the prophecy he had made six months earlier to the president of the Chemical Foundation, that Lawrence's results qualified him for a quick Nobel prize and that his further work would help bring about "the production of synthetic radium." Poillon ordered Knight to run.^[115] Knight had the application in hand a week later; it emphasized that in Lawrence's process the radioactive material was chemically identical with the target and, moreover, that the chemical sodium does not harm the human body. The emphasis on the chemical identity of target and

product aimed to elude Fermi's patent on Na²⁴ made by (n,a ) on aluminum. This was perfectly proper, since patent law made a clear distinction between process and product: controlling a product does not mean controlling all ways to make it, and vice versa.^[116]

The patent examiner observed that the novelty claimed was production via (d,p) and that Crane and Lauritsen had priority of publication of results obtained in that manner. "There is no invention in utilizing the well known effects of deuteron bombardment upon any particular light metal," he held, and rejected all Lawrence's claims.^[117] Although Knight insisted that the work of Crane and Lauritsen had nothing to do with Na²⁴ , and although Lawrence declared that excitation by (d,p) was first observed at Berkeley, the examiner held firm. Meanwhile the Laboratory had found that (d,p) could make another important radiosubstance, P³² , which Lawrence urged Knight to try to patent together with the (d,p) process.^[118] To this last proposal the examiner returned a crippling objection: the (d,p) process as described by Lawrence, Lewis, and Livingston in 1933, not the application of the process to sodium in 1934, should be the precedent; and, if Lawrence could not show that at that time he had the idea of activating the substances he bombarded, the game was up.^[119] (A patent application could not then be filed on the strength of the paper of 1933, since filing had to occur within two years of publication.) This objection had at least this merit: it revealed how far the various parties were prepared to go to secure control of Lawrence's artificial radium.

The examiner held that since Na²⁴ and P³² were produced by (d,p) in the experiments of Lawrence, Lewis, and Livington, they had been discovered then even though no one knew it. That construction of the legal mind nonplussed Lawrence. He proposed to

Knight that they drop the attempt to patent radioelements. After all, he said, we have the cyclotron, "which I am sure will always be the apparatus that produces the radioactive substances." Lawrence thus reversed the estimate he had made during the patenting of the cyclotron. Then, while Poillon's Knight duelled with the examiner, Lawrence had doubted that the cyclotron had any commerical possibilities in the near term; and, when the duel concluded happily, he had questioned whether the Research Corporation should go to the additional expense of securing a Canadian patent. "The patent application on the cyclotron is very much of a gamble. It may never be of great worth," he had written Knight. "And yet," he added, "developments may come which would make it of tremendous value."^[120] The developments that revalued the cyclotron were, of course, the discoveries of artificial radioactivity and neutron excitation.

Poillon declined to hide behind the cyclotron. He appealed to Lawrence's patriotism: if the generous Research Corporation were to withdraw, grasping Caltech would rush into the vacuum. "I know how repugnant it is for any right-thinking scientist to become embroiled in a discussion concerning priority of discovery. . . . However, California Technology is quite a 'powerful Katinka' and is out for both intellectual recognition and financial return whenever proper and possible. . . . Under these conditions might it not be possible to straighten up a little bit in your claims for patent priority?" Lawrence could scarcely deny this appeal from his benefactor for help against his rival. "It is entirely proper," he replied, "for us to look out for the commercial aspects of our work, if this can be done in a dignified and proper way." He had not counselled withdrawal from distaste for battling Caltech, but from conviction that the patented cyclotron was protection enough.^[121]

Knight's strategy was to obtain an affidavit from Lawrence that he had had the idea of "irradiation" by deuterons before June 1933. That might allow patenting of (d,p); it might also require

Lawrence to claim discovery of artificial radioactivity. Knight's Washington correspondents arranged a meeting between Lawrence and the examiner, which they judged to be encouraging. Lawrence abandoned his application for radiosodium, substituted a claim for the (d,p) process, and swore that he had ordered the experiments of 1933.^[122] The examiner rejected all claims based on the experiments and the affidavit and found a new objection: Cockcroft and Walton must have had some deuterons among their hydrogen ions; they therefore must have made something radioactive by (d,p); and consequently, by patent logic, they discovered without knowing it what Lawrence claimed as his own. The only way out seemed to be an affidavit from Lawrence's colleagues that he suggested the original bombardments with deuterons in order to search for radioactivity. This Lawrence was reluctant to seek—his colleagues might not like his running away with a patent on their joint work—but he would cooperate if necessary. He supplied a second affidavit, which the examiner again rejected as insufficient, since it did not declare (what would have been perjury) that Lawrence examined the product of the irradiation for radioactivity. Knight's correspondents judged that a sufficiently strong affidavit would win the day, but had the sense to doubt "whether upon the actual facts of the situation a fully satisfactory affidavit can be furnished."^[123]

Lawrence had gone at least as far as he could. He wrote Knight: "The more I think about the matter the less enthusiasm I have for further endeavors to patent the process for producing the artificial radioactive substances." He retreated to his old position, much stronger in 1939 than it had been in 1935: "I feel that the cyclotron affords the only means of producing the radioactive materials in appreciable quantities; therefore with the cyclotron protected we have essential control of the matter." This time Poillon concurred, observing that the Research Corporation controlled

not only the cyclotron, but essential features of the Van de Graaff generator too.^[124]

Poillon had hoped to create and control a new industry of radio pharmaceuticals. Hence in the mid 1930s the Research Corporation invested redundantly in cyclotrons on the same principle that had built its cartel in the precipitation business: by expecting or requiring its grantees to assign improvements in the art to the Corporation. The theory is clear from the justification of a grant to Columbia to "enlarge the cyclotron . . . so that its field of application may be extended, and the equipment thus be made more effective for the preparation of artificial radioactive elements." In service of the same program, the Research Corporation supported work on the separation and application of biologically interesting stable isotopes, like C¹³ and O¹⁷ , at Columbia, and the ultracentrifuges of Jesse Beams at Virginia and of J.W. McBain at Stanford.^[125] The purpose was highminded. As Poillon put it, "we do not in any way want to prevent scientists from having the free use of any discoveries that are made but if we can assess industry a reasonable sum, we will have just that much more to give to scientific research."^[126] The methods, however, were those of the entrepreneur and the patent lawyer.

In 1940 it appeared likely that the Research Corporation would enjoy large royalties from its cyclotron patent. Several corporations, notably Westinghouse and American Cyanimid, deliberated building production cyclotrons for profit.^[127] Radiophosphorus had shown promise in the treatment of certain sorts of leukemia. The annual cost of treating all Americans so afflicted was reckoned at between $200,000 and $500,000. Since the university cyclotrons in operation in 1940 could not supply the demand, let alone the requirements for other therapies and applications, commercial

production of radioisotopes under patents held by the Research Corporation seemed imminent and humanitarian. American Cyanimid hesitated only over the worry that universities might undersell commercial radioelements if they started to charge for the products of their cyclotrons. Both Poillon and Lawrence reassured Cyanimid that the demand would be so large, and the output of university cyclotrons available for therapy so small, that the commercial market would not be affected by the policies of university laboratories. In preparation for a windfall, the Research Corporation pushed Lawrence to patent certain cyclotron improvements.^[128] The war ended these initiatives in two ways: by providing other lines of work for the interested parties and by creating, in the atomic pile, a much more efficient engine for the production of radioisotopes than the cyclotron. After the war, the Research Corporation wrote to all cyclotron laboratories to grant royalty-free licenses "for educational, scientific, experimental and research purposes." That amazed many. As the director of the Biochemical Research Foundation (Bartol) wrote in acknowledgement of this largesse: "I never knew there was such a patent."^[129]

The Research Corporation had not cared to exercise its rights when the primary consumers of artificial radioelements were research teams in universities and hospitals. And, as Lewis had done with heavy water, Lawrence distributed the fruits of the cyclotron gratis throughout the world. To be sure, the product spread the fame of the machine that produced it; but the Laboratory made its gift in a true spirit of scientific cooperation. Lawrence had several reasons for not charging even the cost of production: he thereby retained the right to support only projects he thought worthwhile; he had to avoid giving the men in the Laboratory the impression that they were cogs in a business; and he wanted to repay in some measure the support he had received

from charitable foundations and public bodies.^[130] The industry Poillon had envisaged did develop, after his patent expired. The first commercial cyclotrons for radioisotope production were made by the Collins Radio Company in the 1950s. In 1957 the former chief engineer at the Laboratory, William Brobeck, marketed cyclotrons for neutron therapy. By 1970 the annual sales of cyclotron-produced radioisotopes exceeded $3 million. It was but a small part of a big business—some $50 million a year—in radioisotopes for research, diagnosis, and therapy.^[131] Poillon had the right idea but the wrong machine.