Chancellor, which contains the declaration that a person in specifying an
invention may be held as preventing “the loss for a year or more to the
public of the fruits of the ingenuity of many minds which commonly are
working together in regard to the same invention.”
The _Journal of Jurisprudence_ says well:—
“The rights of the inventor are also liable to interference
of another kind. A rival manufacturer invents independently
the same machine, or one involving the same principle. He is
then, by natural law, at liberty to publish his invention
without regard to the rights of the first inventor, seeing
that he did not acquire his knowledge of its powers from the
latter, and experience proves that, in point of fact, the same
processes are frequently discovered by different individuals
independently of each other. In an age of mechanical invention,
an inventor cannot deprive the world of a new process by
keeping it a secret. He can at most only retard the progress of
discovery by a few years.... We submit that the fundamental
principle of any legislative contract between inventors and the
public should be, that the right of using the invention should
be open to all Her Majesty’s subjects. Exclusive privileges,
conferred for the purpose of enabling patentees to divide their
profits with a few favoured manufacturing establishments, are
indefensible upon any recognised principles of economy. Patents
are in fact, as they are in law considered to be, trading
monopolies; and the interests of the public imperatively
require that, as monopolies, they should be swept away.”
Mr. Webster, Q.C., a high authority, says:—
“I mean the discovery, for instance, of some chemical property,
or the application of some property, of matter of recent
discovery, or a certain effect, for instance, in dyeing; that
becoming known as a chemical law, then persons rush to obtain
Patents for different applications and different modifications
of it.”
See by my next quotations how great is the obstruction the multiplication
of Patents creates, or, in the words of the Act, the “general
inconvenience” they occasion.
Mr. James Meadows Rendel, Civil Engineer, in 1851:—
“During the twenty-five years that I have been in practice, I
have frequently felt the inconvenience of the present state of
the Patent-Law, particularly with reference to the excessive
number of Patents taken out for frivolous and unimportant
inventions, which I think are much more embarrassing than the
Patents that apply to really important inventions.
“I have found them interfere in a way that very much
embarrasses an engineer in carrying out large works, without
being of the slightest advantage to the inventors, excepting
that in some cases a man who takes out a Patent finds a
capitalist (however frivolous the invention) who will buy the
Patent, as a sort of patent-monger, who holds it, not for any
useful purpose, but as a means of making claims which embarrass
persons who are not prepared to dispute questions of that sort.
I think that in that way many Patents are granted which are
but of little benefit to the real inventor, serving only to
fill the coffers of parties who only keep them to inconvenience
those who might have occasion to use the particular invention
in some adjunct way which was never contemplated by the
inventor.
“After you have designed something that is really useful in
engineering works, you are told that some part of that design
interferes with some Patent granted for an entirely different
purpose, and which might in itself be frivolous, but important
in the new combination; and one has such a horror of the
Patent-Laws, that one evades it by designing something else,
perhaps as good in itself, but giving one infinite trouble,
without any advantage to the holder of the Patent. I have
frequently found this to be the case.”
Mr. W. S. Hale, candle manufacturer, said in 1851, in answer to the
question—
“At present they are obstructions to you?—Decidedly.
“You say that, practically, you have found the existence of
Patents in themselves useless—a great obstruction to the
introduction of inventions which would otherwise have been of
value?—Certainly.
“The great objection which I conceive many parties have to
introduce real improvements arises from useless Patents. I am
in treaty now for one or two which in themselves are useless,
yet they contain the germ of something, and it is worth my
while, if I can get them for a small sum, to purchase them; but
directly you make application for a Patent of that description,
it becomes very valuable all at once; the party conceives you
are desirous of possessing yourself of it, and that you will be
inclined to give anything for the use of it.”
In like manner Sir William Armstrong answered this question, put in 1864—
“Is it within your knowledge that considerable inconvenience
does exist in those branches of business with which you
are most conversant from the multiplicity of Patents?—Most
certainly, and great obstruction.”
So also Mr. James Spence, of Liverpool, a well-known correspondent of the
_Times_ during the American war, said—
“It is difficult for a manufacturer to move in any direction
without treading on the toes of some sort of a patentee.”
Likewise Mr. Montague E. Smith, Q.C., M.P., said:—
“In several cases in which I have myself been counsel, very
great inconvenience has arisen from the multiplicity of Patents
which an inventor has had to wade through to see that he has
not been anticipated.”
How truly did Sir W. Armstrong observe to the Commission—
“You cannot grant a monopoly without excluding other persons
who are working upon the same subject.”
Again:—
“Here the State grants to an individual a monopoly, and
therefore the public are at his mercy.”
Mr. J. S. Russell, who himself has taken out a good many Patents, speaks
more specifically:—
“There are a great many Patents of that kind taken out for
boilers of steam-engines, and boilers of steam-engines admit
of a very enormous variety of shape and proportion without
damaging their efficiency.... The consequence is, that I have
not defended any of my own. I have never made of mine more
than a mere registry of priority of invention. I have not made
mine a source of money, but I have suffered in this way from
Patents: I have gone on, in the course of my business, doing my
ordinary work, and I have found other people taking out Patents
for what I was doing without calling it an invention, and then
prosecuting me under the Patent they had taken out for my own
inventions, and it appears that there is nothing to prohibit
them from doing that.”
This I can from experience endorse. He is then asked—
“If you were able to prove that you had been carrying on an
invention, whatever it might be, at the time when the person
claiming to hold a Patent for it took out his Patent, would not
that relieve you from all difficulty in the matter?—It would
only give me the pleasure of defending a law-suit.”
Mr. Curtis, engineer, Manchester, said:—
“Many parties in trade have made alterations without being
aware of their being patented, and when they have used them for
a length of time, they have found that the patentee has come
upon them and made a claim for Patent-right.”
Mr. Platt, of Oldham, whom you are happy to see as a member, said:—
“I think that there is scarcely a week, certainly not a
month, that passes but what we have a notice of some kind
or other of things that we have never heard of in any way,
and do not know of in the least, that we are infringing upon
them, and the difficulty is to get at any knowledge. We may
be now infringing, and may have been infringing for years,
and a person may have been watching us all the time, and when
he thinks that we have made a sufficient number he may come
down upon us, and there is no record. A very large number of
Patents are now taken out for what is termed a combination of
known things, and known things for the same purpose, and the
descriptions of those Patents are generally so bad that it is
impossible to tell the parts that are actually patented; in
matters of that kind it has become a very serious question as
to conducting a large business.”
In 1851, Sir William Cubitt spoke of an inventor of filters:—
“After he began to supply his customers, he received notice
from a house in Liverpool that he would be prosecuted; he
received intimation of legal proceedings against him for
interfering with his, the Liverpool man’s, Patent. I have some
of those filters. The manufacturer of these things, who had no
Patent, came to me to consult me upon the subject. I at once
saw how the case stood, having regard to the specification of
the Liverpool patentee, that he (the latter) had taken out a
Patent for that which another man had before done, so exactly
that the words of the specification and the drawings fitted the
first man’s invention, which was without a Patent, therefore
his Patent would have been null and void. I advised my friend
to write to the patentee to inform him of the fact that he had
taken up a case which he could not support, and that he himself
was infringing upon the invention of the first man, who had no
Patent; that brought the Liverpool man to me, I having been
referred to as having one of these filters in use. I explained
to him that I had had the patent filter of the other man for
two or three years. Then what was to be done? I advised my
friend, who was in fact one of the Ransomes, of Ipswich,
to tell the Liverpool patentee if he did not come to some
arrangement of a business-like nature, he himself would have to
become the prosecutor, and to sue out the ‘_scire facias_’ to
make him prove his Patent-right, which is an expensive legal
proceeding, and very troublesome to a patentee. I believe they
have since made some business arrangement; but that shows how
Patents may be, and are frequently, taken out for things which
have been previously invented.”
As to the bad effects of Patents, I quote again from Mr. Scott Russell:—
“The unlimited power given by a monopoly to an inventor has
this practical effect at present, that when an invention has
been made the subject of a Patent, everybody shrinks from
it, everybody runs away from it, everybody avoids it as an
unlimited evil, because the person who has the monopoly can
subject you to a most expensive prosecution, and can charge you
a most inconvenient sum for what you have done, and can punish
you in every way for having touched his invention.”
Mr. Grove says it is natural that people should yield to the holder of
the Patent, for, if
“He has a letter from a patentee saying, ‘You are infringing my
Patent;’ I do not believe that the tradesman would go to the
expense of litigation with the patentee, and for this reason,
it is the patentee’s interest to give a very large sum of money
to support his Patent. His Patent, although for a very trivial
thing, may, taking the vast extent of sale, be a very lucrative
affair, and therefore it is worth his while to lay out a large
sum of money to support his Patent. It is not worth the while
of the opponent, because he has only a little stock which
affects him; the patentee has his whole interest consolidated
in the Patent. All those who might oppose the Patent are a
scattered body, namely, the public generally, not one of whom
has any strong interest in opposing the Patent; and I believe
that that has been very much worked by patentees, particularly
in a small and comparatively frivolous and perhaps an all but
useless invention. The public is a scattered body, not one
of whom has sufficient interest to meet with equal force the
patentee.”
Mr. Platt, M.P., presents the following case, to show how unprincipled
people use the power which the law gives them, and how, even with a
good case, if they but knew it to be so, people in business are led to
succumb to extortion:—
“The fourteen years of the Patent had expired, and five years,
so that it was nineteen years from the date of the Patent
before the action that I now speak of was commenced. It was
commenced by the parties, and I may say that the person who
was the original patentee was a person of no money whatever;
but he persuaded some party, I believe some lawyer, to advance
some money in order to take up this case. I know that many
machine-makers, rather than contest the case, absolutely paid
the money—the different sums of money that were demanded of
them. I came up this afternoon with a gentleman in a train
from Manchester, who mentioned this case to me, and who stated
that one of his own clients offered as large a sum as £2,000
in one case, to settle the matter. I found that the system was
to attack the smaller men, and by that means to extract money
in different ways, and there have been a number of instances
in which parties have paid in that way. Although not attacked
in this instance myself, a neighbour of mine was; I looked
over his evidence, and I told him that I thought I could amend
it very much, and I told him further that I would be a party
to the expense. I said, let me take the case in hand, which I
did. Now, nineteen years is a very long time for a machine,
and this machine was of a very valuable kind; hundreds upon
thousands had been made during the nineteen years, and if this
person could have established his claim to a Patent-right,
he would have made a very large sum of money, so large as to
be almost incalculable. It so happened that I recollected,
when it was brought to my memory, that we had made a number
of those machines long before the date of that Patent, and
the difficulty then was to prove that such a machine had been
made, for in nineteen years, speaking of cotton machinery, such
machines would probably all have been broken up, scarcely any
were to be found in the country; but it so happened that in one
instance a very large firm of manufacturers in Preston, of the
name of Horrocks, Miller, and Co., had two or three of these
machines still left. I got Mr. Miller to come up to London, and
we brought one of these machines with us. It was taken into
court, and in a moment their own witness admitted that this was
precisely the same thing that the other parties had been paying
royalty to this man for, and the case was at once abandoned by
Mr. Webster, who was then conducting it.”
Sir W. Armstrong told the Commission:—
“Another great evil of the Patent system is this, that an
invalid Patent really answers the purpose of protection almost
as well as a valid one. I believe that there is not one Patent
in ten which would bear scrutiny, and the mere name of a Patent
often answers all the purpose. Nobody will face the litigation
necessary to get rid of it.
“In very many cases people prefer to pay black mail rather than
undergo the expense of a law-suit?—In almost all cases; I know
that in my own experience, if I find that a man has a Patent
which I am satisfied is not a valid one, I would rather go out
of the way to avoid any conflict with him.”
So also Mr. Curtis:—
“I have in one or two cases given £200 to a party for the use
of an invention in which I have told him at once that what we
used was not an infringement in any shape or form; but rather
than run the chance of going to a tribunal where I was fighting
with a man of straw, I have consented (thinking it was prudent
to do so) to pay £200.”
Mr. Woodcroft, in keeping with all this, testified—
“I know of existing Patents which are but old inventions, as
old as the hills.”
The following extract from the Transactions of the National Association
for the Promotion of Social Science presents another illustration of the
mischief the Patent system works:—
“The Patent in question having been purchased for a trifle by
Mr. Foxwell, its merits were subjected to close scrutiny, and
the specification being found to be defective in some respects,
but possessing the quality of elasticity from the vagueness
of its phraseology, it was resolved to improve it under the
Disclaimer and Amendment Act. After undergoing a compound
operation analogous to pruning and grafting, it was found to
embrace almost every kind of shuttle sewing machine. In other
words, it was hoped by the possession of this invaluable Patent
to control nine-tenths of the sewing machine trade of Great
Britain. Fired with this idea, Mr. Foxwell commenced legal
proceedings against a well-known sewing machine manufacturer
for compensation for an alleged infringement of his amended
Patent, and at the third trial succeeded in driving his
opponent into a compromise, whereby the sum of £4,250 was paid
in liquidation of all demands. Encouraged by this success, he,
through his solicitor, apprised the trade of his intention to
levy royalties on the users of all needle and shuttle machines
other than those manufactured by his licences, and, failing to
bring many to his terms, he filed bills in Chancery against 134
defaulters.”
Mr. Abel, of Chancery-lane, in a recent pamphlet, writes thus, to show
how, in self-defence, Patents require to be taken:—
“In many cases an inventor takes out Patents for immaterial
improvements that he is continually making in his processes or
machinery, merely for the purpose of indisputably publishing
those improvements, in order thereby to prevent the chance of
his being debarred from the use of the same, through a Patent
being obtained for them by somebody else.”
The following statement is authenticated by Mr. Grove:—
“I had at one time great doubts about it, but things have
arrived at a dead lock. The Courts now really cannot try these
cases. We have at these very sittings three Patent cases made
remanets because they cannot be tried; they interfere too much
with other business. We have at this moment going on a Patent
trial which is now in its fourth day. We have had within, I
think, a week another trial of a Patent, which lasted seven,
and a third which lasted five days. During the time that these
Patent cases have been going on there have been heavy Patent
arbitrations going on, two of which I can speak to myself; one,
I think, lasted seventeen days, and the other, which involved a
very simple issue, lasted six or seven days. Those arbitrations
went on contemporaneously, and the cases were obliged to be
tried by arbitration because the Courts could not try them; it
would have occupied too much public time. While these cases
have been going on several Patent cases have been also ready
for argument in banco, and one has been postponed.”
On this part of the subject I again cite Mr. Platt:—
“There being an adjournment, for example, for a fortnight or
three weeks, is there constantly a fresh burst of evidence to
meet the difficulty raised at the last meeting?—Yes, it is so;
and that prolongs the case very much; in fact, the case that
I have in my mind now I have no doubt will cost the parties a
sum of £4,000 or £5,000. I cannot see how it is possible for
the verdict to be against them, for it has been a frivolous and
vexatious proceeding from the beginning, and with the idea of
extorting money.”
And Mr. Scott Russell:—
“In your experience have you not seen a great number of
dishonest litigants, plaintiffs who bring actions in the way of
persecution, and defendants who desire to destroy a Patent, and
where one or other of the parties for the most part acts in bad
faith, trying to injure his adversary in any way that he can?—I
should say that the greater number of Patent cases are cases of
oppression.
“Have you known cases of oppression where the patentee has been
the oppressor?—Yes, frequently.
“Have you known cases of patentees with a good Patent, and in
which there has been what may be called a dishonest attempt to
destroy it?—Yes, I have known both on a very large scale; for
example, there was the great hot blast case. I was engaged in
that from the beginning in the capacity of arbitrator; and in
that great hot blast case the whole litigation arose from the
ironmasters, who were making enormous sums of money, wishing
to get rid of a very small Patent rate per ton, which had
accumulated to an enormous sum in consequence of the success of
the Patent. The expenses in the hot blast Patent case amounted,
I should think, to more than £100,000.”
In the celebrated capsule case, the expenses have been somewhere about
half of that enormous sum. In another case, about three-quarters of it.
How true, then, is the following, from _Chambers’ Cyclopædia_:—
“When a Patent has been granted, if it is of such a nature
as to lead to competition, infringements are almost matter
of course; and the only mode of discovering and checking the
infringement is so ineffective that inventors generally pass
their lives in constant litigation, fighting a succession
of imitators, who often have nothing to lose by defeat, and
therefore entail all the greater burden on the legitimate
manufacturer. It has been said that not more than three per
cent. are remunerative. A Royal Commission has lately been
engaged in inquiries as to the best mode of remunerating
inventors and improving the law with reference to
infringement; but it is doubtful how far the subject is capable
of being put on a better footing, so many difficulties being
inherent in it.”
And how many of these pernicious Patents do honourable members think have
been repealed? Allow me, as to this, to quote Mr. Grove—
“... Very few Patents have been repealed, and, generally
speaking, the patentee has been victorious.”
And the Commissioners’ Report:—
“Number of Patents repealed by _scire facias_ from 1617 to October,
1852 19
“Number of Patents repealed by _scire facias_ from October, 1852,
to December, 1861 None.”
A natural question suggests itself, Who is to get a Patent, since in many
cases there is a plurality of almost simultaneous inventors? Listen to
the words of Mr. Webster, Q.C., author of well-known books on Patent-Law:—
“I have frequently had brought before me five or six Patents
for the same thing within two or three years, or perhaps even
within a year. I remember a remarkable case of a Patent for
an improvement in railway wheels, where there were as many, I
think, as six Patents almost within six months.”
Sir W. Armstrong shows that sometimes the chief benefit of inventions
goes to the wrong parties:—
“A person obtaining a Patent for a crude invention prevents
other persons from entering upon the same ground unless at
their own peril, and I have known cases where, in the ignorance
of the existence of a Patent, improvements have been made, and
practical value given to an invention which has been previously
patented, and then that patentee has come forward and said,
‘That is my invention, and you must pay me for using it.’ Other
people have given additional value to his Patent, that is to
say, they have made improvements which he can appropriate to
his Patent, and in that way it gives it an additional value.
The mere conception of primary ideas in inventions is not a
matter involving much labour, and it is not a thing, as a rule,
I think, demanding a large reward; it is rather the subsequent
labour which the man bestows in perfecting the invention—a
thing which the Patent-Laws at present scarcely recognise.
“But you are unable to do so, because you cannot interfere with
the Patent over it. Do you find practically that that clogs the
progress of invention?—I will take one of my own inventions. I
will take an hydraulic crane, for example, which I will suppose
that I do not patent, and I will suppose that another person
invents an improved valve and applies it to hydraulic cranes,
and that he patents that improvement upon hydraulic cranes;
clearly the result of that is, that if it gives an improved
character to the whole machine he will obtain the monopoly of
the machine, because he has a Patent for the improvement, and
that carries with it the machine itself.”
Mr. Webster shows how it is that men of science, the real discoverers,
miss reward:—
“The number of inventions brought out by purely scientific
people I believe to be very few, and for this reason: purely
scientific people want practical knowledge to enable them to
carry out their own ideas; the mass of inventions, I have no
doubt, are made by workmen, or persons of skill and science
engaged in some actual manufacture.”
Mr. I. K. Brunel tells—