RECENT DISCUSSIONS
ON THE
ABOLITION OF PATENTS FOR INVENTIONS
IN THE
UNITED KINGDOM, FRANCE, GERMANY, AND THE NETHERLANDS.
Evidence, Speeches, and Papers in its Favour
BY
Sir WILLIAM ARMSTRONG, C.B.; M. BENARD, Editor of the
“_Siècle_” and “_Journal des Economistes_;” Count Von BISMARCK;
M. CHEVALIER, Senator and Member of the Institute of France; M.
FOCK; M. GODEFROI; Mr. MACFIE, M.P., Director, or Member, of
the Liverpool, Edinburgh, and Leith Chambers of Commerce and
Merchants’ House of Glasgow; Sir ROUNDELL PALMER, M.P., late
Attorney-General, &c.; Right Hon. LORD STANLEY, M.P., Chairman
of the late Royal Commission on Patent-Law; JAMES STIRLING,
Esq., Author of “Considerations on Banks and Bank-Management,”
“Letters from the South,” &c.; and others.
WITH SUGGESTIONS AS TO INTERNATIONAL ARRANGEMENTS
REGARDING INVENTIONS AND COPYRIGHT.
LONDON:
LONGMANS, GREEN, READER, AND DYER.
1869.
* * * * *
“La legislation des brevets d’invention peut avoir l’effet
d’entraver notre commerce d’exportation, et de priver
l’industrie nationale de débouches utiles.... Un brevet est
un privilége et un monopole. Pour que le monopole puisse être
reconnu par la loi, il est indispensable qu’il repose sur un
droit certain ou sur une utilité publique parfaitement établie.
Le peu qui précède suffit ce me semble a démontre que l’utilité
publique n’existe pas.... Le brevet d’invention a-t-il pour
base un droit positif? Il semble pourtant que non....
“Telles sont les réflexions qui sont venues à un certain
nombre d’hommes éclairés depuis quelque années et qui ont
l’assentiment d’un bon nombre d’hommes des plus notables
parmi les chefs d’industrie. Elles ont de l’écho dans touts
les pays civilisés, et en Angleterre pour le moins autant
qu’en France—(1) Elles ne tendent à rien moins qu’à renverser
le système même des brevets d’invention, sauf à rémunérer
par une dotation spéciale tout homme ingénieux qui serait
reconnu, après un certain temps d’expérience, avoir rendu à la
société un service signalé par quelque découverte. C’est ainsi
qu’il a été procédé en France à l’égard des inventeurs de la
photographie.”—From the Introduction to the “Rapports du Jury
International de l’Exposition 1862, publies sous la direction
de M. Michel Chevalier, President de la Section Française.”
* * * * *
“Selon moi donc, le char du progres social doit être mu par
l’industrie et dirigé par l’esprit chrétien. Il s’arrête à
défaut de travail, il déraille à défaut de charité.... Et
s’il est prouvé que c’est industrie qui nourrit l’humanité,
que c’est elle qui la chauffe et la préserve contre toutes
les intemperies, n’est il pas juste de dire que pousser au
développement du travail, comme nous nous proposons, répandre
dans l’esprit des travailleurs des idées qu’ils peuvent
féconder pour arriver à une invention, a un perfectionment,
a un nouveau procédé quelconque diminuant le prix de ce qui
entretient la vie, que c’est là, messieurs, de la bienfaisance
par excellence.”—President’s Opening Address of the Industrial
and Scientific Society of St. Nicolas, 1866.
CONTENTS.
PAGE
Prefatory Note v
Letter from Professor J. C. THOROLD ROGERS viii
Remarks on an Article in the WESTMINSTER REVIEW 1
Petition of the NEWCASTLE CHAMBER OF COMMERCE 8
Notes of Mr. MACFIE, M.P., for Speech upon Motion, 28th May, 1868 9
Speech of Sir ROUNDELL PALMER, M.P., on that Occasion 93
Speech of Lord STANLEY, M.P., on same Occasion 109
Paper by JAMES STIRLING, Esq. 116
Papers by M. BENARD, “_Are Inventions Property?_” 124-150
Speeches of M. CHEVALIER and M. PAUL COQ 164
Papers by M. BENARD, “_Results of a Bad Law_” 175-180
Message of Count VON BISMARCK to NORTH GERMAN PARLIAMENT 185
Debate in the Netherlands Second Chamber 197-204
Extracts from a Memorial of the Dutch Government 225
Other Extracts regarding Abolition in Holland 226-229
Speech of E. K. MUSPRATT, Esq., in LIVERPOOL CHAMBER OF COMMERCE 231
Letter of Sir WILLIAM ARMSTRONG, C.B. 237
Letter of JOHN THOMSON, Esq. 238
Letter of ANDREW JOHNSON, Esq., M.P. 239
On the Distinction between Copyright and Patent-right, by Mr.
MACFIE, M.P. 241
On Patent Monopoly, by Mr. MACFIE, M.P. 243
A Scheme for International Patents, by Mr. MACFIE, M.P. 250
Article from the TIMES on the Debate in Parliament 251
” ” ECONOMIST ” ” 255
” ” SPECTATOR ” ” 259
” ” SATURDAY REVIEW ” ” 263
Extracts from Recent Periodicals 268
Report of the COLOGNE CHAMBER OF COMMERCE 272
Extract from M. BASTIAT’S “_Harmonies Economiques_” 276
Extract from a Letter of M. PAILLOTTET, his Editor 277
Extract from M. VERMEIRE’S “_Le Libre Travail_” 277
Extracts showing Movements in BELGIUM, GERMANY, and HOLLAND 278
Extract on Perpetuity of Patent-right, by M. BOUDRON 281
Extracts on American and British Patent-Law 282
Classification of Patents 283
Illustrations Drawn from the Copper and Iron Trades 284
Note on Working Men as Inventors 286
Note on the Inventors’ Institute 287
Note on State Rewards 288
Note on the Patent-office 289
COPYRIGHT.
Observations on Remunerating Authors by Royalties 293
Suggestions How to Give Effect to this Mode 296
Extracts Showing Mr. WATTS’ Opinions on this Mode 297
Chapter from M. RENOUARD’S “_Traité des Droits d’Auteurs_” in
Favour of it 301
Extract from Dr. LEAVITT’S Cobden Club Essay on International
Copyright 305
Extracts on the State of the Question of Copyright in the UNITED
STATES and CANADA 307
Statement of Mr. PURDAY on Same Subject 313
Letter from the Same on International Copyright in Musical Works 314
Extracts from Papers laid before the CANADIAN PARLIAMENT 316
Tendencies of Copyright Legislation, and Extracts from Recent
Bill regarding Copyright in Works of Art, with Remarks on it 320
Duties on Books in Several Colonies on Behalf of Authors 326
On Trade-Marks and the CUSTOMS ESTABLISHMENT 328
The Export Book Trade of Various Countries Exhibited 330-331
Extract from the “BEEHIVE” 332
To all who are serving their generation as employers and employed,
in the Arts, Manufactures, and Trades, of Leith, Musselburgh, and
Portobello, and have seen and felt the evils inherent in the present
State method of dealing with Inventions, these pages are inscribed,—with
congratulations that in the front rank of statesmen, as well within the
Cabinet as beyond it, there are earnest advocates of that emancipation
of British productive industry from artificial restraints which is the
needful accompaniment and the complement of free trade;—and in hope that
public attention will now at length be turned towards procuring such a
solution as will satisfy at same time all just pretensions of meritorious
inventors and men of science.
My own bulky contribution to the attack on the last stronghold of
monopoly is to be regarded as but a rough-and-ready earthwork thrown
up by a pair of willing hands in front of powerful artillery whose
every shot is telling. It comprises the jottings and materials which
I collected for a speech intended to be delivered on 28th May, when
proposing a motion in favour of abolishing Patents for Inventions.
Notwithstanding imperfections in execution, the present compilation
may acceptably supply a _desideratum_ and prepare the way for further
discussions, and especially for the Committee which Her Majesty’s
Government continue to view with favour and will heartily support.
R. A. M.
_June 9, 1869._
While in the hands of the printer, fresh matter has, through the kindness
of honoured fellow-workers in the cause, reached me almost daily, part of
which is added. The reader will find in this accession to the testimonies
on behalf of freedom of industry, besides some new arguments, such a
striking concurrence and oneness in the principles enunciated, and even
in the illustrations made use of, as, coming from various quarters
independently, may fairly be regarded as presumptive proof of their
accuracy.
The Government has been so good as agree to produce, in conformity
with a request from Parliament, any documents in possession of the
Foreign-office which show the reasons or motives of the Prussian and
Dutch Governments for proposing the abolition of Patents in Germany and
the Netherlands. The adoption in the latter country of abolition pure
and simple, without (so far as I can see) the slightest indication of a
substitute, may well reconcile professional inventors and all who unite
with them to the propositions with which I close my “speech.” Now that
the continental stones are dropping out of the arch which forms the
System of Patents, the rest cannot long keep their place. The antiquated
fabric may be expected to tumble. For public safety, the sooner
Parliament and all concerned set themselves to take it down, the better.
A communication from Professor Thorold Rogers, and remarks on a recent
Review, are given herewith, the former on account of its value as
a vindication of economic truth and justice, the latter by way of
correcting the reviewer’s accidental mistakes.
The _Daily News_, in a leading article on the 27th July, having attached
importance altogether undue to a small meeting called under peculiar
circumstances on the 24th, which was supposed to express opinions and
wishes of artisans and operatives,[1] I addressed letters to that
influential paper, which will be found in its issues of the 29th, 30th,
and 31st. Of course Sir Roundell Palmer, who did the promoter of the
meeting the honour to take the chair, had not, any more than myself, the
smallest connexion with its origination and arrangements.
Appended are suggestions and information regarding Copyright, which came
in my way while in the press about Patent-right, and which may be useful
if international negotiations are contemplated for one or other or both
of these kindred subjects.
I hope imperfections of translation, which I regret, and errors of
the press, for which I take blame without correcting them, will
be indulgently pardoned, as well as faults entirely my own in the
unaccustomed part of advocate and compiler.
_July 31._
⁂ No rights are reserved. Mr. Macfie will be glad to be favoured, at
Ashfield Hall, Neston, Chester, with a copy of any transcripts made or
any printed matter illustrating the question of Patents.
[1] When members of “Inventors’ Associations” ask mechanics to join
a crusade against freedom of industry, the best rejoinder is to ask
a statement in writing to show how it can be for the interest of the
millions to perpetuate fetters for the sake of investing a few hundred
individuals with a chance of obtaining personal advantage by means of the
power of fettering.
LETTER FROM PROFESSOR THOROLD ROGERS.
My dear Sir,—.... The fact is, no one, I presume, wishes to say that an
inventor is undeserving and should go unrewarded. All that the opponents
of the Patent system do say is, that the present machinery gives the
minimum advantage to the inventor, and inflicts the maximum disadvantage
on the public. Besides, in ninety-nine cases out of a hundred, the
patentee is only a simultaneous inventor with a number of others, who
lose their labour and ingenuity because one man happens to get in
first....
It has always seemed to me that the weakness of the inventor’s case lies
in the fact already alluded to, that he rarely is the sole inventor.
Hence the fundamental distinction between Invention and Copyright, though
I am no fanatical admirer of the latter privilege.
Now, if a law can confer a right on one person only by inflicting a wrong
on a number of other persons, it is intrinsically vicious, and cannot be
defended on the ground of its intentional goodness.
Yours faithfully,
JAMES C. THOROLD ROGERS.
July 29.
REMARKS ON A RECENT ARTICLE.
The _Westminster Review_ for July contains an article on Patents. Its
proofs should have been corrected with more care. In my answer to
question 1947 in the Royal Commission’s Report, the word “patented” in
the following the _Review_ misprints “neglected:”—
As a matter of fact, patentees have patented things of so
little value.
And in question 1954 a worse mistake is made by substituting “_some_” for
“none” in the following:—
There being 400 Patents now in existence affecting your trade,
none of which are made use of by you.
I have right also to complain of mistakes which do not originate with the
printer. The following opinions and arguments imputed to me I disclaim:—
Had Mr. Macfie said this, we should not have been surprised.
It closely resembles his contention that a book should be
protected because it is something tangible, whereas an
invention is something which, if not invisible, is in the
nebulous condition of an idea.
What I wrote will be found below, page 241. My argument is, that the
subjects of Copyright being tangible _can_ be identified as the author’s
production, and nobody else’s; and that the subjects of Patent-right
being modes or plans, belong to the region of ideas which may easily
occur to anybody besides the first inventor.
Again: the reviewer says of Lord Stanley:—
The latter, while supporting Mr. Macfie on the main issue
distinctly repudiated his leading arguments.
This would be strange if true, seeing I coincide in all his Lordship’s
arguments. How, then, can he, twelve pages further on, say again:—
As for Lord Stanley, he did not hesitate to dissent from Mr.
Macfie’s arguments, while giving a qualified support to his
motion.
Perhaps I should object to the following representation:—
It has been proposed to replace Letters Patent by grants from
the national purse. This is to revert to an obsolete custom.
During the eighteenth century it was fairly tried, and the
result should serve as a warning now. Seventy thousand pounds
were distributed among plausible inventors in the course
of fifty years. The advantage to the public was _nil_. The
encouragement given to impostors was the only tangible result.
Johanna Stephens obtained 5,000_l._ for disclosing the secret
of her cure for the stone. A Mr. Blake got 2,500_l._ to assist
him in perfecting his scheme for transporting fish to London by
land, while a Mr. Foden was greatly overpaid with 500_l._, “to
enable him to prosecute a discovery made by him of a paste as a
substitute for wheat-flour.” Give a man a sum of money for his
invention, and you run the risk of paying him either too much
or too little. Give him a Patent, and you secure the invention
for the public, while his remuneration in money is absolutely
determined according to its value.
The _system_ of State-rewards has _not_ been tried. The reviewer’s
cases do not apply. The scheme that I submit could never be abused so
as to sanction such follies. It may not be a generous and royal way of
dealing with inventions, but it is equitable and safe; whereas, _pace_
the reviewer, the remuneration from a Patent is not at all “determined
according to its value” (that of the invention).
This interesting article is remarkable for what it omits rather than
what it contains. Like almost every, if not every, defence of Patents
which I have seen, it ignores the grand objection to Patents—their
incompatibility with free-trade. From the beginning to the end there is
not in the article the slightest allusion to the hardship they inflict on
British manufacturers in competing with rivals in home, and especially
in foreign, markets. Reformers of the Patent system fail to realise
this—that no conceivable mere _improvement_, even, though it should clear
away the present encumbrance of a multiplicity of trifling Patents, can
be more than an _alleviation_ of the mischief now done. The remaining
few would be the most important and valuable ones, and therefore the
most burdensome, because those which, on account of the heavy royalties
that will be legally claimed, must subject British manufacturers to the
largest pecuniary exactions—exactions that they cannot, but their rivals
often would, escape.
The writer of the article has a way of pooh-poohing adverse arguments,
even when he mentions them.
That no two men produce the same book is true. It is almost
as difficult for two men to give to the world two inventions
identical in every detail, and equally well-fitted to subserve
the same end. Much has been said about the ease with which this
may be done, but authentic proofs are lacking of this having
been done on a large scale.
And
Again, then, we ask for proofs of the allegation that six men
are often on the track of the self-same invention.
Why, the simultaneousness, or rapid succession, of identical inventions
is notorious.
He goes in the face of the strongest evidence when he says—
It is doubtful even if these objectionable Patents do any real
harm. An invention which will answer no purpose is simply
useless, whether it be patented or not.
And, elsewhere,
The truth must not be blinked that, if a multiplicity of
worthless Patents be an evil, if the profits of manufacturers
are diminished owing to the battle they have to fight with
patentees, if the bestowal of Patent-right be the source of
mischief and the occasion of pecuniary loss, the like complaint
may be laid at the door of Copyright, and its abolition might
be demanded with as great a show of fairness.
How lightly he can regard arguments of his opponents is also seen in the
following passage:—
Another of Lord Stanley’s objections is that the right man
hardly ever gets the reward. As he puts it, litigation being
costly, and the grant of Patent-right merely amounting to
permission to take legal proceedings against infringers, the
poor man has no chance of asserting and defending his rights.
“If a poor inventor took out a Patent, and the Patent promised
to be productive, in nine cases out of ten he was obliged to
sell it to some one who could command capital enough to defend
it in a court of law.” We submit this proves nothing more than
that the poor inventor, in nine cases out of ten, deserves our
pity. But then, if these nine inventors are unfortunate, that
does not justify the ill-treatment of the tenth.
The source of the writer’s idea, that cessation of Patents is
ill-treatment, lies in the assumption which pervades the whole article,
that to inventors belongs property in inventions—_i.e._, _exclusive_
right of property; or, in other words, right to require the State to use
its power to prevent other persons from doing what they do, and what
every other man has a natural and inalienable right to do.
Still further: shutting his eyes to the difficulty of mollifying the
grievance of invention monopoly by means of “_compulsory licences_,”
which the Royal Commission declared they found no way of rendering
practicable—and, I add, if practicable, would be no cure of the evils,
which are radical—he writes—
If to this were added a system of compulsory licences, the
amount of royalty to be determined by a tribunal, in the event
of the parties failing to come to terms, nearly all the really
serious and valid objections to the working of a Patent-Law
would be obviated.
Yet, believing himself the friend of _the public_, in spite of all the
strong arguments _against_ his views and the little he himself adduces
_for_ them, he very complacently tells us—
Speaking on behalf of the public, we maintain that a Patent-Law
is necessary in any uncivilised community, because, without its
protection, industry cannot flourish, and ingenuity can have no
scope for its triumphs.
The reviewer can hardly have consulted any practical man when he
pronounces it—
absurd to plead that a Patent has been infringed in ignorance,
when it is certain that the ignorance, if not wilful, is wholly
inexcusable.
Undoubtedly, infringements often are not acts done blamelessly in
ignorance; still, I would be surprised in most cases if the infringer
knew he was infringing. He is not likely to know it in making trivial
improvements, for how can he know without subjecting himself to no small
trouble and expense, such as ought not to be laid upon him.
There is an important point as to which the reviewer and I perhaps
differ, “the extent to which Letters Patent give a monopoly in ideas.”
The fact is, that the whole breadth of a _principle_ is patentable,
provided any single mode of applying it can be specified.
The reviewer, adverting to the changes which have taken place in the Law
of Patents since the days of Elizabeth, characterises them as “changes
towards greater freedom of action on the part of the State, and greater
liberty of choice on the part of the people.” This, I confess, I do not
understand, except so far as it may mean there has been less and less
control exercised by the State, and more and more advantage taken of this
supineness by all sorts of persons. I am quite prepared to admit that in
my speech I have exhibited rather a popular than a strictly legal and
logical view of the meaning and legitimate applicability of the words
in the statute, “nor mischievous to the State by raising prices.” All
that I maintain is this,—that the spirit of the proviso is opposed to
any individual Patent that keeps prices up at a level below which, if
there were no grant, they might, by the natural progress of industry,
be expected to fall, and to a Patent system that characteristically has
that effect and is also chargeable with “hurt of trade” and “generally
inconvenient.”
SPEECHES AND PAPERS ON THE ABOLITION OF PATENTS.
The following petition, which Mr. Macfie had the honour to present,
contains the motion which gave occasion for the speeches that form the
principal part of this compilation:—
_To the Honourable the Commons of the United Kingdom of Great
Britain and Ireland in Parliament assembled._
THE PETITION OF THE NEWCASTLE AND GATESHEAD CHAMBER OF COMMERCE
Humbly sheweth,—
That your petitioners have had many opportunities of
becoming acquainted with the working of the laws under which
Patent-rights are granted to inventors in the United Kingdom.
That your petitioners are informed that notice has been given
in your honourable House of a motion in the following words:—
“That in the opinion of this House the time has
arrived when the interests of trade and commerce,
and the progress of the arts and sciences in this
country, would be promoted by the abolition of
Patents for inventions.”
That your petitioners, believing the proposed total abolition
of Patent-Laws will be of great benefit to the country, are
most desirous that the above-named resolution should be adopted
by your honourable House.
Your petitioners, therefore, humbly pray that the said motion
may pass your honourable House.
And your petitioners will ever pray, &c.
NOTES OF SPEECH OF MR. MACFIE, M.P.
Mr. Macfie, after apologies founded partly on the circumstance that, so
far as he knew, this was the first occasion when the policy of granting
Patents for Inventions had been discussed in Parliament, proceeded to
say, that manufacturers could not be indifferent to improvements. It is
indeed significant that they do dislike Patents, while they appreciate
and honour inventors, even those inventors who claim from the State
exclusive privileges, some of whom have the glory of being among the
greatest benefactors of mankind.
In considering the important subject which he now brought forward, he
submitted that it is not the interest of inventors, nor even the interest
of manufacturers, of agriculturists, of miners, nor of shipping, that
this House should consult, but those of the nation. The question to be
considered is, do Patents, on the whole, promote our national welfare?
Another principle on which he proceeded is, that there can be no property
in ideas. The Creator has so constituted nature that ideas can be held in
common, which is not the case with things material. Letters Patent for
inventions have been instituted in order to confirm to certain persons,
and deprive every other person of, the common, natural right to act on
the ideas or knowledge there patented. These exclusive privileges, while
they last, are, of course, property.
Further: It is a recognised principle, that the State is not bound to
grant Patents. These are grants dictated by royal favour. In the words of
Stephens’ Commentaries: “The grant of a Patent-right is not _ex debito
justitiæ_, but an act of royal favour.” Every Patent is a voluntary
transference by the State to an individual of power for fourteen years
to tax at pleasure other persons for making or doing the thing patented;
aye, if he likes, to prohibit or withhold the thing altogether.
Patent-right must not be confounded with Copyright. The latter stands
on perfectly different grounds, and can be advocated and upheld, as
he (Mr. Macfie) himself does, in perfect consistency with disfavour
for the former. There can be no rival claimant to the authorship of
any particular book; many persons may honestly and indisputably claim
originality in an invention. The true similarity between these two
subjects of privilege is not between the book and the invention or
machine, but the book and the specification of the invention. When you
buy a Murray’s handbook, a book on medicine, or a commercial guide, you
are at liberty to act on information you find in it, and to travel,
trade, or prescribe, according to the directions you find there. But mark
the contrast in what Patent-Law creates. When you buy a specification,
you know it tells only of certain things that you are not at liberty to
do.
Lastly: I acknowledge that it is legitimate to legislate with a view to
promote or protect trade. The interference, however, which is now wanted
is not a return to the old protective system of discriminative duties,
but the clearing away of evil laws, and especially deliverance from the
bondage and wrongs involved in Patent monopolies.
For the origin of our definite Patent legislation we go back to the
famous statute of James I. of England. At that time the people of this
kingdom were in a state somewhat resembling our present state. They
were desirous to extend trade and introduce new arts and manufactures.
Parliament was powerful and hated monopolies, under which the people
had been writhing. These it reprobated in the spirit of the jurists of
antiquity. While by that statute it swept away all other monopolies, it
permitted, or tolerated, that the Crown should grant the exceptional
privilege for “the sole working or making of any manner of new
manufactures within this realm, to the true and first inventor and
inventors of such manufactures, which others at the time of making such
Letters Patent and grants shall not use, so as also they be not contrary
to the law nor mischievous to the State, by raising prices of commodities
at home or hurt of trade or generally inconvenient.”
The House will keep steadily in view the wholly different condition of
commerce and the arts at that time. When these monopolies were spared,
trade was very far from being developed. The field of commerce was still
in a great measure clear and unoccupied. The kingdom was, commercially
as well as geographically, detached from the continent. The operations
of trade and the arts were slow, were conducted on a small scale and on
rude systems, and yielded large profits. Exports to foreign parts were
inconsiderable. There were no periodicals to give information as to
anything new in the arts and sciences. Under such circumstances, if new
kinds of business were to be established, it was not unreasonably thought
safe, or even needful, to allure by promise of exclusive privileges. The
very reverse are our present circumstances and condition.
May I be allowed now to call particular attention to the Act. Anybody may
see that it authorised exclusive privileges as something exceptional,
something almost loathed, as “monopolies.” The House may remember how, in
conformity with this view, Patents used to be construed by the judicial
bench with a leaning against them. It was clearly not contemplated that
they were, as they are now, to be had at a comparatively easy price,
by a very simple course of procedure organised to hand, at an office
established and with machinery ready to be set in motion for the purpose.
A rigid testing examination, or severe, perhaps somewhat adverse,
scrutiny was implied. They were granted for England only, then containing
a small population, and requiring not very much for its supply of any
new article. Moreover, the coveted privilege was a concession of no more
than leave or right to “work” or “make” (not vend), and that within the
kingdom, which, although it is the only thing the Act allows Patents to
be granted for, is not required now-a-days. The right was conferrible
only on the patentee himself; whereas now-a-days, and perhaps from the
first, the usage is altogether different; for the patentee is now allowed
to transfer his right, by licence, to others: that is, to vend his
“invention,” taking the noun, not in its sense of a thing made, but of a
method, or idea, or right to make or do a thing. Without this licensing,
it is of consequence to remember, the monopoly would be too grossly
and glaringly bad to be defensible or maintainable. There is another
contrast: by the words of the statute nobody could be patentee but only
the true and first inventor. Besides, the subject of a Patent clearly was
to be something palpable and visible—something that admitted not of doubt
as to what it was or as to its being novel—something respecting which
there could be no fear whatever that it would interfere with any already
existing trade. Above all, a process or operation, especially in a trade
that already existed, does not appear to be contemplated by the statute.
How entirely and sadly different is the present practice in this respect.
Let me first quote from Brande’s Dictionary the opening definition that
shows how naturally, and as it seems, unconsciously, writers speak of
“processes,” as the great or only subject-matter:—
“The word Patent is commonly used to denote a privilege
accorded to an inventor for the sole use of some process by
which an object in demand may be supplied to the public; or
some product already familiar to the public may be made more
easily and efficiently.”
So the commencement of a Paper on Patents, in the last volume of the
Proceedings of the Association for the Promotion of Social Science—in the
following words, “The point asserted in the following paper is, that in a
grant of Letters Patent, the subject of the grant is a ‘process,’ and not
‘product’”—shows as decisively the complete change that has taken place,
and, let us not forget it, without consent of Parliament, who indeed have
never been consulted. The alteration of the practice, which is nothing
less than a new law—a law diametrically opposed to the spirit of the
statute—is the work of the courts of judicature. Better principles might
have been expected to prevail, for how just is the following reflection,
taken from the most important “Treatise on the Law of Patents:”—
“Every member of the community receives many benefits from the
society in which he lives, and he is therefore bound, by every
means in his power, to advance its interests. And it seems
to be but reasonable that he should be expected to promote
the public weal by putting the community in possession of any
discovery he makes which may be for the public good.”
The observations I have been making are founded on the words of the
statute. It is possible, and perhaps I may say probable, that outside
of the statute there was an influence drawing in an opposite direction,
which found expression in the Letters Patent. If these were scrutinised,
it is not unlikely even the earliest would be found not to contain
the strict conditions and limitations which are laid down in the Act.
An incidental proof of this tendency I notice in one Patent which has
met my eye, where, though the duration of the Patent in England was
confined within the permitted period of fourteen years, the duration
in Ireland, which was not subject to the limitation, was in same grant
made so long as between thirty and forty years. I do not find, in the
excellent Chronological Index issued by Mr. Woodcraft on behalf of the
Patent-office, anything at all to indicate that desire to favour trade
was the motive for granting Patents even after the statute was passed.
On the contrary, a money consideration seems to have been customary.
The Crown stipulated for yearly payments of various amount, some of
these being fixed sums, others a tenth, or three-tenths, or a quarter,
or a half, of the clear benefit. In one case 4d. per bushel of salt was
claimed. In another case 6d. per 100lbs. of bones was stipulated for. In
another I find 5s. per ton of metal stipulated. All this is suggestive,
but not less the condition, introduced occasionally, that the articles
manufactured should be sold at moderate rates. The moderate rates appear
to have been sometimes defined, _e.g._, 100 seals of a new kind were to
be sold for 1d. Similar and more stringent care was taken when Copyright
first became the subject of systematic legislation, to prevent the
monopoly from making books dear. All such precautions have, in our modern
unwisdom, disappeared. Grotius requires under monopoly a restriction on
price.
One thing, I presume, may be regarded as certain, that neither in the Act
nor in the Letters is there any vestige of the modern political heresy
that an invention may be legislated for as in any sense property. Even
the high-sounding phrase, “the rights of inventors,” appears a recent
introduction.
It is not forty years since the greatest number of persons allowed to
participate in a Patent was five. This limitation was a lingering remain
of the traditional character of Patents, as monopolies which ought not to
be provided with facilities for extension but rather be confined within
the narrowest bounds.
It is proper I should now prove from that and other authorities in law,
what is the correct interpretation of the word “manufactures” in the
statute, on whose meaning so much depends. My quotations will exhibit
progressive development—a thing justly viewed with suspicion, whether its
sphere be the ecclesiastical or the legal. What I now bring under notice,
taken in connexion with the startling perversion of the words “first and
true inventor” and the setting at nought the letter and spirit of the
words “to make within this realm,” matches the whimsical and ruinous
sophistications we smile at in the “Tale of a Tub.”
My first appeal is to Sir E. Coke’s “Institutes:”—
“If the substance was in being before, and a new addition
made thereunto, though that addition made the former more
profitable, yet it is not a new manufacture in law.”
That by a manufacture was meant something so definite as to involve or
imply an art in the sense of a trade, will be seen by another quotation
which I make from Serjeant Hawkins, who says—“the King may grant the
sole use of an art invented or first brought into the realm.” So also in
“Bacon’s Abridgment.” The Court of King’s Bench held—
“A grant of the sole use of a new invented art is good.... This
is tied up by the statute to the term of fourteen years; for
after that time it is presumed to be a known trade.”
Mr. Hindmarch writes—
“It was long doubted whether a mode, method, or process of
itself, and apart from its produce or results, could legally be
made the subject of a Patent privilege.”
After citing cases, he adds—
“These cases show clearly that a process of manufacturing,
separate and apart, may be made the subject of a Patent
privilege.”
Mr. Coryton, in his volume on “The Law of Letters Patent,” expresses his
mind thus plainly:—
“On the assumption that a Patent confers a monopoly, it
follows directly that the subject-matter of the Patent must
be a material thing, capable of sale,[2] and cannot be either
an improvement, principle, method, process, or system. In
other words, the subject-matter must be, as it was originally
defined, a ‘new manufacture.’ A thousand evils have arisen from
affixing other than the literal interpretation to the terms,”
&c.
He quotes Justice Heath, who said—
“That which is the subject of a Patent ought to be vendible;
otherwise it cannot be a new manufacture.”
So Tyndal—
“That it is a manufacture can admit of no doubt: it is a
vendible article, produced by the art and hand of man.”
Mark from the words of Justice Buller, on the same occasion, the
sentiment which was permitted to prevail and neutralise the statute:—
“Few men possess greater ingenuity, or have greater merit. If
their (Boulton and Watt’s) Patent can be sustained in point
of law, no man ought to envy them the profit and advantages
arising from it. Even if it cannot be supported, no man ought
to envy them the profit,” &c.
We come to C. J. Eyre:—
“According to the letter of the statute, the words ... fall
very short ... but most certainly the exposition of the
statute, so far as usage will expound it, has gone very much
beyond the letter. ‘A deliberate surrender,’ comments Mr.
Coryton, ‘of judicial power in favour of an accumulation of
popular errors.’... Later judges, following in the same course,
have striven rather to regulate the inconsistencies they found,
than to address themselves to the cause and thus prevent the
possibility of their recurrence. Writers on this subject have
on this head followed in the course indicated by the Bench.”
A practical commentary, and a confirmation of Mr. Coryton’s views, are
furnished by the fact that the number of Patents granted in the six
reigns preceding that of Geo. III. was only 540 in 85 years, or less than
6½ a-year; whereas now a greater number is granted daily.
The actual administration of Patents is exhibited to us by a Return which
the House has been good enough to order on my motion. That return shows
how the rate of multiplication has increased, especially in Scotland and
Ireland.
There have been granted for—
In England
England. Scotland. Ireland. for the Colonies.
In 1650—None.
1700 2
1750 7
1800 96 13 2 6
1825 250 62 33 87
1850 523 227 531 191
1866 2,121 2,121 2,121 none
1867 2,292 2,292 2,292 none
There were in operation in the United Kingdom at the end of last year no
fewer than 11,369.
The House is aware that the Patent-office makes a classification of
Patents. The classification for 1866, the latest year that could be given
in the Return, shows that there are nearly 300 classes, and there were
Patents granted that year affecting those classes to the number of more
than thirty each on the average. Taking the manufacture and refining of
sugar as a test of other classes, the Return shows that in that trade
there were granted more than thirty “affecting processes or operations”
(without including hundreds of others of a more general character, to
which manufacturers of all sorts are subjected, as, for instance, Patents
for motive power, heating, &c.). Many noteworthy matters will meet the
eye of any person who examines the Return, such as the following: For
medical, curative, and similar “revelations,” there were granted about
80; for improvements tending to safety, nearly 350; affecting food, about
400; affecting steam-boilers, about 160; steam-engines, about 120.
But we have yet to consider the most material points in the Act. To these
I now call attention. The conditions or limitations which the statute
makes necessary are extremely significant. They are in these words—“Not
contrary to the law nor mischievous to the State, by raising prices of
commodities at home or hurt of trade or generally inconvenient.”
On these words Sir Edward Coke remarks—
“There must be _urgens necessitas_ and _evidens utilitas_.”
What might be understood by being “generally inconvenient” in
the statute, and how little disposition there was to render that
disqualification a dead letter, we may gather from the following extract,
which shows that saving of labour was in those early days, so far from
being a recommendation, an inconvenience. Hear the same authority:—
“There was a new invention found out that bonnets and caps
might be thickened in a fulling mill, by which means more might
be done than by the labours of fourscore men who got their
living by it. It was ordained by an Act, 7 Edward VI. c. 8,
that bonnets and caps should be thickened and fulled by the
strength of men, and not by a fulling mill, for it was holden
inconvenient to turn so many labouring men to idleness.”
On which passage Mr. Farey (a gentleman eminent on Patent questions), who
quotes it in an elaborate review of Patent-Law at the end of the Blue
Book of 1829, the Report of the Committee on Patents for Inventions,
makes the following remarks: “If this decision had been followed, it
would have set aside every Patent for invention.” True, and the more’s
the pity, perhaps! Let us hail the admission.
Sir Edward explains, and I read, the whole passage that I have cited,
not as a lawyer might who wished to ascertain whether by oversight in
drawing the Act or by the malleability and elasticity of language it
could be interpreted even non-naturally to suit a purpose, but as honest,
blunt Englishmen would understand it, as the English gentlemen who passed
the Act must have understood it and meant the Crown to understand it.
I submit, Mr. Speaker, that at this moment, and by this statute, and
according to the common law which this statute declares, Patents are
illegal which raise prices or hurt trade. The framing of the sentence
leaves no doubt whatever that the antecedent to the words “they be not
contrary to the law nor mischievous to the State, by raising prices of
commodities at home or hurt of trade,” are these words, “Letters Patent
and grants of privilege.” The preceding section contains the same words.
That section was introduced in order to shorten the duration of Patents
granted previously, and to nullify any that raised prices or hurt trade.
It is plain that the intention of Parliament and of the Sovereign was to
allow no monopoly to exist whose effect would be either to interfere with
the extent or efficiency of industrial occupations, or to make prices,
even of the new manufacture or commodity, dearer under the restriction
than they would be without it. Even so late as the last century, the
consistency of monopoly with cheapening of prices was believed in. As
an example, I have been told that when the Paraphrases of the Church of
Scotland were issued, the monopoly was given to a particular printer,
with this purpose expressly stated.
What language can be plainer than that of the statute? As that statute
is still the charter of our commercial freedom and the chart by which we
may discover the track we must follow in order to our return to the open
and safe, and as its sound limitations are still the law of the land, I
am entitled at the outset to contend that they ought to be put in force.
They have been utterly neglected, and the nation suffers much from the
neglect. As to this, hear my witnesses. I produce them chiefly from the
following Blue-books: That issued by the Committee of this House which
sat in 1829, that issued by the Committee of the House of Lords which sat
in 1851, and that issued by the Royal Commission in 1865. Here remark
the strange failures of expectations that characterise the proceedings
of Parliament in regard to Patent-Law. The Committee of 1829 recommended
that they should be allowed to continue their investigations next
Session, but they appear not to have been allowed. After the inquiries
of 1851 there was, as a Petition which I have perused, presented to this
House, shows, an understanding that the whole subject would be inquired
into; but this never has been done down to this day. A Commission was
indeed appointed in 1862, but they were confined to the question of the
“working” of the laws. Indications were given, both before and after it,
that the question of the policy of these laws should be examined into.
The Liverpool Chamber of Commerce repeatedly urged this; _e.g._, in
March, 1862, when that body petitioned the House thus: “They therefore
pray that your honourable House will appoint a Select Committee to
inquire into the policy and operation of those laws.” But the matter
is still in abeyance, and, notwithstanding promises in a Royal Speech,
legislative action is suspended.
To proceed: Mr. Lennard in this House, in April, 1829, declared his
opinion—“It was not desirable to facilitate overmuch the obtaining of
Patents by any reduction of expense.”
So Sir Robert Peel, in the interest of the manufacturers of Lancashire,
Cheshire, and Yorkshire, deprecated cheapening of Patents and their
consequent multiplication. At that period another member objected even to
the publishing of specifications, because
“It enabled persons to carry the invention abroad, where, of
course, the Patent article was made, the foreign market shut
against the real invention, and the undue benefit granted
foreigners of having the free use of the invention fourteen
years before the patentee’s countrymen.”
The House will observe that the complaint here is not that we were hurt
in British markets—for these the protective system of duties closed—but
that we lost our hold of foreign markets.
Sir Mark Isambard Brunel, the eminent engineer, told the Committee of
1829:—
“I have had several Patents myself; I think that Patents are
like lottery offices, where people run with great expectations,
and enter anything almost.
“And if they were very cheap, there would be still more
obstacles in the way of good ones. I think the expense of
Patents should be pretty high in this country, or else, if it
is low, you will have hundreds of Patents more yearly, and you
would obstruct very much the valuable pursuits.”
That Patents are, indeed, a lottery in respect to the uncertainty whether
the patentees draw a prize or a blank, I refer to the words of Mr. Curtis
before the Royal Commission:—
“We have taken out a number of Patents, and frequently those
to which we have attached the least importance have become
the most valuable, and, on the contrary, those from which we
have expected large things we have reaped comparatively no
advantage.”
Mr. Coryton says in a note:—
“The opinions of the witnesses examined before the Committee
of the House of Commons in 1829 were almost unanimous to the
effect that Patents should not be too cheap, lest the country
should be inundated with them.”
Among my private papers, I find in 1851 the Manchester Chamber of
Commerce expressing the same fear in a letter to Mr. F. Hill, a portion
of which I now present:—
“It is considered by this Board to be a primary axiom that
every Patent granted is, during its exclusiveness, a limitation
to a certain extent of the general rights of the people, and
that in those Patents which have reference to manufacturing
processes there may be a disturbance of the general industry
of the people. This Board would, therefore, deprecate a too
great facility in the obtaining of Patents. If the cost be
made cheap, every trifling improvement in every process of
manufacture would be secured by a Patent. In a few years no
man would be able to make such improvement in his machinery,
or processes, as his own experience may suggest, without
infringing upon some other person’s Patent. Endless litigation
would follow, and the spirit of invention in small matters
would be rather checked than encouraged.”
The realisation of these fears, as well as the inconsistency of our
practice with the conditions which our forefathers, more wise than the
present generation, imposed, will be seen from the specimen extracts
which I will now read, begging that it be remembered a very large
reduction in the cost of Patents was made in 1852. The House will pardon
me if it finds these extracts are not arranged with any rigid regard to
order, but form a too _rudis indigestaque moles_.
The following prove that there is a natural tendency to excessive
multiplication of Patents, and to the making of the same inventions, and
of inventions directed to the same end, or moving on the same line, by a
number of persons at or about one and the same time.