from the electric telegraph; and I believe you will find fifty
people who will say that they invented it also. I suppose it
would be difficult to trace the original inventor of anything.”
Sir W. Armstrong speaks regarding that frequent case—
“An idea which is present to the minds of very many persons
at the same time. Without any reference to his competency
to develop that idea, and to give it practical value, he is
allowed to have a monopoly of it, and thereby to exclude all
other persons.”
He points out that—
“As soon as a demand arises for any machine, or implement,
or process, the means of satisfying that demand present
themselves to very many persons at the same time, and it is
very unfair, and very impolitic I think, that the person who
gets first in the race to the Patent-office should have the
means of preventing all others from competing with him in the
development of that particular means of process.”
Mr. Grove, Q.C., eminent in science as in law, hints at a remedy:—
“I am speaking of classes of inventions which, if they may be
called inventions at all, would inevitably follow the usual
course of trade and the fair scope which every man should have
for modifying or improving his commodity. I would not shut out
the public from those things. I would exclude from Letters
Patent those changes which would naturally follow in the
ordinary uses of the machines. I would not prohibit a tradesman
from exercising the same ordinary skill in using his machine
as we should all be expected to exercise in anything which we
happened to make or from changing its form.”
Another question as naturally thrusts itself forward, How far have we
benefited by having more Patents? Although the Act of 1852 has greatly
multiplied the number, Mr. Woodcroft, the intelligent head of the
Patent-office, gives the following answer:—
“There has been no considerable increase of bonâ fide Patents
compared with the old law?—No.”
Very suggestive are the following observations of Mr. Grove, as showing
which are the kinds of invention, so-called, that pay best, and how
absurd, if people would reflect, they must consider our present mode of
rewarding and stimulating invention:—
“A Patent may be an extremely valuable invention; for instance,
the manufacture of aluminium is of the utmost importance,
but it was of very little trade value for a long time.
When aluminium was first made what I may call a practical
manufacture, it was of no value to any tradesman at all; it
would take probably ten or twenty years before such a thing
could have any approach to practical value. On the other
hand, the most frivolous Patent—the turn of a lady’s hat, the
cutting of a shirt-frill, or a new boot-heel—may be of very
considerable value, from the number of bootmakers all over the
country who would have to order it, every one of whom would pay
an extremely trifling licence duty, and therefore the Patent
would be a very good Patent to the patentee. In my judgment
those are not good subjects for Patents, and there the opponent
would have no interest equivalent to that of the patentee to
meet him.
“Although I know that the Law Courts have come step by step to
include a greater number of inventions, yet I should not call
an improvement in a shirt-frill, that is to say, a peculiar
method of cutting the little puckered linen which is sewn and
used for shirt-frills, or a particular shape of the brim of
a lady’s hat (I am speaking of existing Patents), a proper
subject for a Patent.”
The following is from the evidence of Sir Francis Crossley, Bart., M.P.:—
“A Patent was taken out for simply putting india-rubber at the
end of a glove, so as to make it tight round the wrist; that
might have been considered a frivolous Patent, but I believe
that it was thought to be a very good one in the trade, and it
was new and useful.”
So Mr. Richard Roberts, of Manchester—
“In the case of an improved button, the Patent pays very well.”
Of another class of illegitimate Patents, Mr. Newton, the eminent Patent
Agent, says:—
“Patents for obvious applications.—I may take for instance the
use of alpaca for covering umbrellas. There is no invention in
it.”
In 1851 Mr. Carpmael was as distinct and condemnatory:—
“A multitude of things for which Patents are granted have no
invention in them; in nineteen cases out of twenty, if there
were cheap Patents, they would be for things which already
exist, and people would only use Patents for the purpose of
advertisement and publication.
“If you grant a Patent, and give to a man the means of
advertisement, for a small sum of money, he will not
investigate it in the slightest degree in the world; he does
not inquire, and does not wish to inquire, but he goes and
spends his money, and then he advertises, because the Patent
appears to give him a standing different from his competitors
in the same way of business.”
In 1829 Mr. Farey, Patent Agent, went further:—
“I have urged the utter worthlessness of their Patents, but
they did complete the specification; they have sometimes
acknowledged, and said perhaps they might nevertheless sell the
Patent to some one who did not know that fact.”
Mark now how Patents hinder progress in manufacture. Hear Mr. Brunel:—
“Take the Electric Telegraph Company. I believe we should
have had that telegraph much improved, and that it would be
working much cheaper, and that we should have had it all over
the country, but for the misfortune they laboured under, of
having Patents which they were obliged to protect; and they
were obliged to buy up everybody’s inventions, good or bad,
that interfered technically with theirs. I firmly believe that
they have been obliged to refrain from adopting many good
improvements which they might have introduced themselves, but
did not, because they were afraid that it might shake their
Patent; and I believe that the stoppage put to inventions by
this state of things is far greater than would result from
secrecy.”
The same is certified by Sir W. Armstrong:—
“I am quite satisfied that a very great number of inventions
which have remained inoperative for years and years, many
of which I could easily name, would have been brought to
perfection very much sooner if it had been open to all the
intellects of the country to grapple with the difficulties of
them.
“May we take it that under the present system, if a man has
obtained a Patent with little or no inquiry, although that
Patent would not stand investigation if opposed, yet if the
patentee is content to impose a moderate tax upon those who
want to use his invention, they will pay that sum without its
being worth anybody’s while to contest it?—Yes.
“Do you believe that the cases of that kind are very
numerous?—Very numerous, and the cases are still more numerous
in which the existence of a monopoly simply has the effect of
deterring other persons from following up that particular line
of improvement.”
Another effect is the restraining of publication. Hear Mr. Richard
Roberts’ thrilling representations:—
“I have a list of something like 100 inventions that I should
have patented thirty or forty years ago, but for the cost.
“I could mention one by which many lives would have been saved
if I had had a Patent for it.
“I very rarely make models, but I had one made for this. It was
made many years ago. I invented it in 1830, and I mean to say
that, if it had been put into practice, things would not have
happened which have happened, and which have caused the loss of
many lives, as connected with railways.”
I adduce this evidence to prove that inventions actually made are kept
back just now. I don’t require to go far for a party who has two or
three small inventions (not connected with his own line of business);
but—such is our “system”—no ready means to publish, and so has for years
kept them back. But a more remarkable instance is present to my mind.
Since about twenty years the same party, having been then consulted by
an _employé_ of a house near Birmingham, is the reticent possessor of an
inventor’s secret. That inventor’s name he does not know. His invention
is ingenious, and may be practicable. It affects an article of universal
consumption, and, so far as I know, has never been patented or thought of
by anybody else than he who confided the secret, nor introduced to use
by him, although, in my opinion, sufficiently promising to be worthy of
attention.
One of the ways in which Patents hurt trade is shown by Mr. Platt:—
“Are there not some large manufacturers who like to keep the
monopoly of a Patent in their own hands, who obtain money and
go on manufacturing without granting licences to others?—Yes.”
Sir W. Armstrong testifies to this power to refuse licences:—
“Is it not the case that such possessor could refuse you a
licence, and so prevent you from making the improvements
altogether?—Certainly he could.”
Lord Chelmsford confirms the legality of this procedure:—
“If he chooses to work the Patent himself exclusively, it is
only doing what the law permits him to do.”
Where there is not downright refusal, Sir W. Armstrong shows that
patentees ask too much:—
“I have known patentees very exorbitant in their demands for
licences—far beyond the merits of their inventions.
“In that case the power of fixing an exorbitant price, really
preventing the use of the article altogether, operates very
disadvantageous to the public?—No doubt of it.”
So Mr. Newton:—
“The claims of patentees are very frequently, and I may say
generally, excessive, and beyond the real value of their
inventions; but there may be cases in which new conditions of
things arise, and the invention, if invention it may be called,
becomes a matter almost of necessity, and the public must have
it. The case which has been put, I think, is a very strong one,
in which a public company or a large capitalist buys up all the
existing Patents, and thereby acquires a power which may be
exceedingly oppressive.
“... I have seen much folly in the refusal of licences. I
introduced the sewing machine into this country. I sold it for
a small sum, and I offered some years afterwards to the owner
of the Patent as much licence-money as 10_l._ per machine, and
that was refused.
“A poor man invented and patented the making of ‘cock-spurs’
(supports for dishes and plates while submitted to furnace
heat) by means of dies, and established a small business upon
the manufacture. Some years later a gentleman improved upon
the invention so far as to make the cock-spurs 500 at a time
instead of singly. The earlier Patent being brought to his
notice, he desired to make terms with the original inventor,
and offered him a liberal sum, together with the sole right to
sell the new manufacture in his own locality (the potteries).
He could not, however, be brought to accept these, or indeed
any terms; but, contrary to advice, commenced an action for
the infringement, and was cast by reason of an unimportant
claim in his specification being untenable.”
As a preventive of this abuse, and almost as a _sine quâ non_ in the
Patent system, “compulsory licences” have been proposed (see the
proceedings of the Social Science Association, 1858, 1860, ’61, ’62, ’63,
’64), but the Royal Commission has reported against them as impracticable.
No wonder, then, that it is said the system hurts inventors themselves,
even those inventors who are patentees:—
“Nothing could work greater injustice _qua_ the inventors
themselves than the present Patent-Law does. Many most
meritorious inventors under the present Patent-Law are utterly
ruined, enrich others, and never pocket a farthing themselves;
therefore the present law is as unjust as a law can be in its
practical working.”
Listen to the elder Brunel:—
“Almost invariably when the Patents come before the public, the
beneficial interest in them is not held, to any great extent,
by the original inventor, but that it has changed hands many
times before it comes out before the public. I should say that,
in the majority of cases, the original inventor gets little or
nothing. In most cases the original inventor has a very small
beneficial interest left in it, and in most cases I doubt
whether, even in Patents that are saleable, he is much the
gainer on the whole, taking into account his previous loss of
time and money.”
Sir W. Armstrong points out how, and how much, poor inventors suffer:—
“I have every week letters from inventors, and I dare say you
have the same; I have scores of them. Poor men very often come
to me imagining that they have made some great discovery. It
is generally all moonshine, or, if it looks feasible, it is
impossible to pronounce upon its value until it has passed
through that stage of preliminary investigation which involves
all the labour, and all the difficulty, and all the trouble.
Many a poor man is ruined by fancying he has made a discovery
which, by means of a Patent, will bring him a fortune. He loses
all relish for his usual pursuits, and sacrifices his earnings
to a phantom.”
Mr. Spence agrees:—
“I do not believe that any system of law could be devised which
would enable a poor inventor in this country to fight his own
battle. He can only fight it by interesting some capitalist,
more or less wealthy, in the probable promise of his invention;
the result is, as all know, that some ninety-eight out of every
hundred Patents end in loss to the parties and are worthless to
the public.”
Mr. Grove leads to the same conclusion from another point:—
“If the patentee himself was a wealthy man and a large
manufacturer, having 20, 30, or 40 Patents in his possession,
he would struggle to the utmost to maintain his Patent; he
would retain the ablest advocates and the ablest scientific
witnesses; and there would be no chance of repealing the Patent
unless the person opposing it had something like an equality
of purse to go into the field. You never could get the battle
fought if one side was wealthy, without the opposite party
having something like equal powers to oppose him.”
Mr. Brunel thus states his conclusion:—
“I believe them to be productive of almost unmixed evil with
respect to every party connected with them, whether those for
the benefit of whom they are apparently made, or the public.”
I proceed to call attention to the effect of Patents as seen and felt
in Government establishments. Before doing so I quote experience in a
private shipbuilding-yard.
Mr. Hall, the eminent builder of the Aberdeen clippers, says:—
“As the sailor with his pockets full is a prey to the crimps,
so is a ship-contractor a prey to Patent-mongers—patent
windlasses, patent reefing apparatus, patent blocks, patent
rudders, patent chain-lifters, patent capstans, patent steering
gear, patent boat-lowering apparatus, patent paints, and
numberless others, all attempting to hook on to the poor
contractor. This would be no grievance, were we not aware that
most of them are patent humbugs.”
Like many others, he thinks it very doubtful whether the inventor
“Would not be as well without a law which still allows the
strong to prey on the weak.”
The following is from the evidence of the Duke of Somerset:—
“I appear to bring under the notice of this Commission the
great inconvenience to the Admiralty of the present state of
the law. The inconvenience consists in the apparent facility
with which persons can obtain Patents covering a very large
number of different inventions under one Patent. For instance,
there is a Patent which one gentleman obtained some years
ago in building ships for a combination of wood and iron.
Now, it is almost impossible to build ships in these days
without a combination of wood and iron. Therefore a Patent of
that kind, where it is wide-spread, as it is in this case,
brings us continually under difficulties with this patentee.
Whenever we apply wood and iron, he is watching to see whether
or not his Patent is invaded, and he complains and says that
different improvements which we have made without any notion
of his Patent have been infringements of his Patent rights....
We do not know what Patents are now lying dormant; we never
move without knocking against several. I think that we are
stopped at every turn.... In the case of the screw-propellers
the Admiralty, in 1851, purchased five different Patents,
hoping that they should have peace by that means, but they had
all sorts of claims afterwards; they were told that they had
infringed different Patents, and they have had to pay for other
Patents since.
“Persons run and take out a Patent for what they think is
going to be done in that way. There are a great many in the
case of iron ships. I think that when the Warrior was built
there were five or six persons who all said that their Patents
were infringed, though I believe that, when the Warrior was
designed, none of their Patents were known to the designer, and
they had never been used.... They showed me different forms
of shot which had been made in the Arsenal a great many years
ago, but all of which had since then been patented by different
persons, who claimed these forms of shot under their Patents.
“Then there are cases of disputed claims by rival inventors,
which are embarrassing to a department; we do not know who has
a claim to a Patent, and sometimes when we buy a Patent of
one person we are told that we have done a great injustice to
another. I remember that when we paid for the Griffith patent
screw, which was cutting off a small portion of the screw, I
had repeated letters from Sir Howard Douglas, telling me that
it was a great injustice to him; that he had invented all
this, and that his fame was diminished, and that his rights
were taken from him by the Admiralty, who had most unjustly
and unfairly paid Mr. Griffith. Those cases are continually
arising, and of course they are very inconvenient for a
department: they not only take up a great deal of time, but
they very often prevent some very desirable process being gone
on with.”
Admiral Robinson said—
“There have been twelve upon the construction of ships since
1861.
Mr. Bush Construction of ships.
Mr. J. Clare Construction of ships.
Mr. P. Drake Construction of ships.
Mr. A. Lamb Construction of ships.
Mr. W. Rae Keels, stern posts, &c.
Mr. Thomas and Col. De Bathe Mr. G. Clarke’s target.
Mr. Truss Animal fibre. Armour plates.
Mr. Beslay Preservation of iron.
Capt. Wheatley Position of guns in ships.
M. De Lapparent Carbonising timber.
Commander Warren Bow rudder.
Mr. Feathers Construction of ships.
Messrs. Woodcraft, Smith, Ericsson, Purchase of Patents for screw
Lowe, Blaxland, and Mr. Currie. propellers.
Capt. Carpenter Screw propeller.
Capt. Trewhitt Disconnecting apparatus.
Mr. Griffith Screw propeller.
Mr. J. O. Taylor Screw propeller.
W. Ireland Cupola.
Messrs. Laird and Cowper Trimming coals in ships.
—— Distilling apparatus in ‘Defence.’
“In those cases the patentees claimed compensation for
infringement?—Yes; and it was necessary for the Admiralty to
have recourse to their solicitor, and to enter into a very long
correspondence.
“It is very possible that you may infringe upon these Patents
without knowing it?—Constantly. The inconvenience which the
Duke of Somerset has mentioned resulting from Patents applied
to shipbuilding is so very great that it is scarcely possible
to build a ship, being a combination of wood and iron (and
you always have some of each in a ship), without treading
upon somebody’s Patent; and I am entirely of opinion that the
Patents are drawn up for that especial purpose, without any
idea of their being practically applied for the benefit of
the public, but only that the patentee may lie in wait for a
colourable evasion of his Patent taking place.”
Now I present the evidence of General Lefroy, deputed by the War-office:—
“The expectations of patentees are very extravagant, generally
speaking, and prior to trial it is very difficult to determine
at all what is the value of an invention. As an example, a
gentleman some time ago made a great improvement in cooking
apparatus, and he assessed his own reward at a large portion
of the whole saving in fuel which might be effected by the
application of this improvement to an enormous extent upon the
whole military consumption of the Crown, which would have come
to many thousands of pounds. Such an improvement should not be
assessed by the value to the Crown, but by what it cost the
originator in intellectual labour or previous experiment, and
its importance in a large sense.”
Let me next cite Mr. Clode, Solicitor to the War-office:—
“If he has not the power either of keeping those improvements
perfectly secret, or of securing them to himself by Patent,
then the War-office authorities are placed in the position
of having in all probability to pay private individuals for
inventions or improvements actually made by their own officers.”
Next Mr. Abel, F.R.S., Head Chemist to the War Department:—
“In your experimental inquiries, when you have happened to
fall upon any discovery, you have not been much annoyed by
claimants saying that they have had precedence of you?—Not at
all, and it is to that that I referred in my first answer.
We do not meet practically with those embarrassments during
experiments, but we may meet with them in applying the details
of improvements. For instance, I am at present engaged upon the
working out of the application of gun cotton, the whole details
of which application were communicated as a great secret to
this Government by the Austrian Government.... While every care
was taken by this Government to keep them secret, a Patent was
taken out in this country for the whole improved process of the
manufacture.”
Mr. Clode again:—
“Some time after I commenced these experiments, while they
remained a perfect secret, and while every care was taken
by this Government to keep them secret, a Patent was taken
out in this country for the whole improved process of the
manufacture.... One of them who is present is experimenting
upon gun cotton, but it is with him a matter of extreme
embarrassment to know how to deal with the subject; if he
discloses by way of specification all that he knows, he sends
the invention or discovery he has made away to the winds—the
very night that it is put upon the file it goes to Paris,
Dresden, Berlin, and elsewhere. If he does not do that, he is
afraid that some man will find out precisely what he has in
view, and put a Patent on the file, and tax the Government in
that way. So that we are upon the horns of a dilemma.”
If I were now to stop, and say not a word more, I might trust to the
candour of the House for an admission that the case against Patents is
proved, on the ground that the conditions of the Statute of Monopolies
have been systematically violated, these violations being of the very
texture and vitals of the institution.
But I proceed. If the House permit, I will now advert to the new
phases the question has assumed since the inauguration of free trade,
understanding by that term _le libre échange_, and not _la liberte du
travail_.
The pernicious effect of home Patents on trade with our Indian empire, is
stated thus by Mr. Rendel, in 1851:—
“As engineer to the East India Railway, we had a little
inconvenience the other day; we wanted to manufacture articles
patented in this country, and we would have had to pay
Patent-rights; it was a question whether we had not better buy
the iron in India, and avoid the Patent-rights. Those cases,
I think, are constantly occurring. The Patent-Laws not being
applicable to India, people will not unfrequently order things
to be manufactured in India to avoid the licence dues in this
country; and the consequence was that I made an arrangement
with the patentees at about one-half of the ordinary charge for
the Patent in this country.”