“Other instances will be found in the evidence of particular

manufactures and branches of invention which are so blocked up

by Patents, that not only are inventors deterred from taking

them up with a view to improvement, but the manufacturer, in

carrying on his regular course of trade, is hampered by owners

of worthless Patents, whom it is generally more convenient

to buy off than to resist. The evil also results in another

practice, having the same obstructive tendency—namely, that of

combination amongst a number of persons of the same trade to

buy up all the Patents relating to it, and to pay the expense

of attacking subsequent improvers out of a common fund. From a

comparison of evidence, it cannot be doubted that this practice

prevails to a considerable extent. We must also conclude that

when the obstruction is not to be got rid of without the

expense and annoyance of litigation, in a large majority of

cases the manufacturer submits to an exaction, rather than

incur the alternative.

“We desire to call special attention to the evidence given by

the First Lord of the Admiralty, and by various witnesses on

behalf of the War Department, showing the embarrassment which

has been caused to the naval and military services by the

multitude of Patents taken out for inventions in use in those

departments.

“It has long been the practice, founded on judicial decision,

to consider that the use or publication of an invention

abroad did not deprive that invention of the character of ‘a

new manufacture within this realm.’ It appears to us, and is

generally admitted in the evidence, that the present facilities

of communication subsisting between all parts of the world have

done away with the only valid reason for such a construction of

the words of the Statute of Monopolies. The object of allowing

such Patents might fairly be, in an age of slow international

communication, to encourage enterprising persons to go in

search of, and to introduce to this country, useful processes

employed abroad, but not otherwise likely to be adopted here,

for the want of which we should long have been behind other

nations. It does not, however, seem worth while to continue

the same facilities now, when foreign inventions are most

frequently patented in this country and in their native land

simultaneously; especially, as we are well informed, that one

result of the practice is to encourage unscrupulous persons to

steal the inventions of foreigners and to run a race with the

legitimate owner to get them patented here.”

The extracts which I have culled sufficiently prove that, in the opinion

of men selected because they were competent to speak with authority on

account of their character, ability, and experience, our Patent system

is “generally inconvenient” and is “hurtful to trade.” Being so, it

is inconsistent with the conditions on faith of which, while other

monopolies were prohibited by the Act, it was spared. But I rest my

case on absolute evils, without regard to that inconsistency. I am sure

nobody can go over the evidence as a whole, or even those scraps of

evidence which I have presented—I am well aware in a very promiscuous

and ineffective manner—without becoming convinced that the trade and

manufactures of this country are seriously obstructed, fettered,

retarded, harassed, and burdened, sometimes demoralised, often wronged,

or even robbed, by the multitude and vexatious character of Patents,

and by the claims and conduct of patentees;—that these Patents, though

very numerous, in general possess little merit, yet often produce large

revenues, the result of exactions from persons who use them, to the

assignees, rather than to the original grantees,—that the uncertainty

of receiving a good return (in place of which experience shows there

is, in most cases, disappointment or even positive loss), and the utter

incongruity existing between the earnings, where there are any, and

the merits of inventions, render the system of Patents an exceedingly

unsatisfactory way of stimulating invention or rewarding inventors;—and

that there is wide-spread dissatisfaction with things as they are, yet

despair of amendment, among the most intelligent of those portions of the

community for whose benefit the system is plausibly represented to exist.

The evidence goes to show that the poor man and the working man suffer

in two ways. Such cannot bring their inventions into play for want of

capital, and they could not, even if it were in that respect different,

make head against rich infringers who are able by the costliness of law

proceedings to set them at defiance. I might allege, also, that while the

expenses of patenting are clearly too heavy to suit the circumstances

of the poor, there is little or no favour shown by any influential

witnesses to propositions for reducing them, because of the tendency that

a suitable reduction would have to still further multiply Patents. Surely

this indicates sufficiently that there is something radically wrong in

the principle on which we proceed.

Allow me, while adverting to the case of the poor, to express my belief

that the Patent system has an effect on wages which demands the serious

consideration of the friends of working men. I believe it helps to

keep wages low. The abolition would work in this manner: whenever, in

any establishment, an improvement is introduced, the fact of its use

becomes, of course, speedily known throughout the establishment and in

other establishments. The _employés_ who in their ordinary occupations

must come to know what the improvement is and how to work according to

it—for this is a matter of necessity, especially now that operations are

conducted on a large scale, with the indispensable aid of men intelligent

and independent—very soon find they are in request. To prevent their

leaving, they are offered an advance, which itself in its turn may

be outbid. The rise which indisputably would result in the case of

individuals will, in my opinion, tend towards a general rise. If I am

correct in my anticipations, operatives and artisans are much injured

by Patent-Laws. But independently of this hypothetical advantage, a

good system of dealing with inventors will be beneficial directly to

operatives, by removing from trade the present hindrances.

Having seen how little store there is set on Patents by eminent

engineers, by manufacturers, and by the public services, let me appeal to

eminent statesmen. Among these I name foremost the apostle of free-trade.

Mr. Cobden told me, many years ago, that he was opposed to Patents; and

at a later period, Oct., 1862, he wrote:—

“I have a growing doubt of the value and justice of the

system, whether as regards the interests of the public or the

inventors.”

Lord Granville, then Vice-President of the Board of Trade, the Chairman

of the Committee on the Patent Bills, told the House of Lords, on July 1,

1851—

“The last witness was the Master of the Rolls, who,

notwithstanding the experience he had had as one of the law

officers of the Crown in administering the Patent-Laws, and

although he took charge of the first Bill which the Government

proposed on the subject, was decidedly of opinion that

Patent-Laws were bad in principle, and were of no advantage

either to the public or inventors.... All the evidence that

had been brought before the Committee, both of the gentlemen

who were opposed to the system of Patents and those who were

most strongly in favour of it, had only tended to confirm

his previous opinion that the whole system is unadvisable

for the public, disadvantageous to inventors, and wrong in

principle. The result of the experience acquired by the present

Vice-Chancellor and Lord Chief Justice of the Queen’s Bench

had raised great doubts in their minds as to whether a law of

Patents was advantageous. The Chief Justice of the Common Pleas

likewise had written him a letter, which he authorised him to

make what public use of he pleased, declaring his concurrence

in his opinion that a law of Patents was neither advantageous

to the public nor useful to inventors.... The only persons,

he believed, who derived any advantage from the Patent-Laws

were members of the legal profession. Except perhaps warranty

of horses, there was no subject which offered so many

opportunities for sharp practice as the law of Patents. As

regards scientific men, too, the practice of summoning them as

witnesses on trials respecting Patents had an injurious, if not

a demoralising, effect.... They sometimes allowed themselves to

be betrayed into giving a more favourable opinion of the merits

of an invention than was strictly accurate.”

Lord Harrowby judiciously said, in reference to the proposition then for

the first time made to exempt the Colonies from the incidence of British

Patents—

“The colonial refiner would be enabled to avail himself of

every new invention in the manufacture of sugar, to the

prejudice of the home refiner, who would have to pay for the

Patent-right.”

Lord Campbell—

“Having been some years a law officer of the Crown, had some

experience as regarded the question at issue, and he begged to

say that he entirely approved of the view of his noble friend,

Earl Granville.”

Sir James Graham, on Aug. 5 of the same year, observed—

“There was also evidently great division of opinion among Her

Majesty’s Ministers upon this subject. The Vice-President of

the Board of Trade, in the House of Lords, when introducing

this Bill, expressed a decided opinion adverse to the principle

of Patents altogether. The noble Secretary for the Colonies

(Earl Grey) agreed with the Vice-President of the Board of

Trade, and now it was found that the advisers of the Crown had

put an end altogether to Patents in the colonies. Was it right,

then, to continue a system in England which had been condemned

in principle by the advisers of the Crown? And were they to

legislate upon a question which the divisions in Her Majesty’s

Council rendered still more doubtful?”

Mr. Cardwell, sensibly and patriotically,

“Would remind the House of the case of the sugar-refiners of

Liverpool, who complained of this part of the Bill.”

I need not quote Mr. Ricardo, whose lamented death prevented him from

urging the present subject as he intended. Allow only the following

observations of Mr. Roche, who on the same occasion—

“Entirely agreed that the Patent-Laws should be abolished

altogether. They might depend on it that nine-tenths of the

Patent inventions, under any law that could be passed, would

be nothing less than so many stumbling-blocks in the way of

improvement.”

Here is an extract from the proceedings of the British Association at

Glasgow:—

“Mr. Archibald Smith was convinced that a majority of

scientific men and the public were in favour of a repeal of the

Patent-Law, and he believed its days were numbered. He held it

was the interest of the public, and not the patentees, that

should be consulted in the matter. This was a growing opinion

amongst lawyers and young men of his acquaintance.”

I revert to the injurious influence of Patents in incapacitating

manufacturers to compete with their foreign rivals, and am able to submit

Continental testimony that such is the inevitable effect. The following

lengthy quotation will suffice from M. Legrand, Auditor of the Council of

State of France:—

“There is in this institution not only an obstacle to the

development of home trade, but also a shackle on foreign

commerce.

“The doors which we open by our Treaties of Commerce may by

means of Patents be closed.

“Let an invention be freely worked in Belgium; if in France

it be patented, Belgian produce cannot enter there. Let

the contrary be the case; we cannot export to Belgium the

production which is free with us, but patented at Brussels.

“Let us suppose, for example, that a new colour is patented

alone in France, and that the patentee only permits the

manufacture of the colour on payment of a high royalty: this

colour will become dear, to the profit of the patentee alone,

and the detriment of all; its exportation, or the exportation

of articles dyed with this colour, into a country where the

manufacture is free, will become impossible, because in that

country they will begin to fabricate it, and its price will be

diminished to the extent of the royalty exacted for it by the

patentee.

“The French producer will necessarily be placed in such a

situation that he will be unable to sustain any foreign

competition.

“It is of consequence, so far as it depends on legislators,

to place those countries on the same footing who unite in the

peaceful, beneficent struggle of competition.

“But with the sound notions which prevail amongst persons of

intelligence, it is evident that the uniform solution to which

every one would adhere cannot be one which would recognise

Patents.

“The making all discoveries free is the system which alone

would have the chance of being adopted by all nations.

“It would certainly put an end to more injustice than it would

originate.”

I had the pleasure of being present at a numerously-attended meeting

of the Economists of Germany held at Dresden in 1863, which almost

unanimously adopted a resolution against all Patents; quite in harmony,

I may say, with formal resolutions of commercial and industrial

associations in that country and France.

The House must long ago have been prepared for the following conclusions,

which close the Royal Commission’s Report on the Law relating to Letters

Patent for Inventions:—

“That in all Patents hereafter to be granted a proviso shall

be inserted to the effect that the Crown shall have the power

to use any invention therein patented without previous licence

or consent of the patentee, subject to payment of a sum to be

fixed by the Treasury.

“While, in the judgment of the Commissioners, the changes above

suggested will do something to mitigate the inconveniences

now generally complained of by the public as incident to the

working of the Patent-Law, it is their opinion that these

inconveniences cannot be wholly removed. They are, in their

belief, inherent in the nature of a Patent-Law, and must be

considered as the price which the public consents to pay for

the existence of such a law.”

This is signed by Lord Stanley, Lord Overstone, Sir W. Erle, Lord

Hatherley, Lord Cairns, H. Waddington, W. R. Grove, W. E. Forster, Wm.

Fairbairn.

The public understood this to mean that the Commission were by no means

satisfied that there should be any longer any Patent-Law at all. The

_Journal of Jurisprudence_ gives it this interpretation.

But I can adduce a higher and more authoritative exposition with regard

to the views of at least the noble Lord the Chairman of the Commission.

When the question was put as to legislation in conformity with the

Report, Lord Stanley told this House on June 10, 1865:—

“The House ought first to have an opportunity fairly and

deliberately of deciding upon that larger question which had

not been submitted to the Patent-Law Commission—viz., whether

it was expedient that Patents for invention should continue to

be a part of the law.”

We all know there is in general society, and even among politicians

and men in business, an acquiescence almost amounting to approval of

Patents in the abstract. Its existence I attribute to unacquaintance

with actualities. I acknowledge that when the more able advocates of

the system state their reasons, these look conclusive enough, and would

be so if there were but one side of the case. What we, their opponents,

claim is that our objections be met. This, I apprehend, cannot be done

without, at least, leaving so much inevitable evil confessed as must

turn the scale. Some of these arguments that we hear are futile and

far-fetched enough to deserve to be repeated. Admitting obstructiveness,

a Chancery-lane writer pleads thus:—

“This very prohibition causes others to exert themselves to

invent different means by which the same or a better result

may be obtained than by the invention which they are prevented

from using, except by payment, and the result is competition,

in the highest degree beneficial to trade, and an unceasing

advancement and striving.”

Really no better is the reasoning of an official witness, who told the

Commission:—

“Three-fourths of the Patents, Inventions of

Englishmen.—Three-fourths of the applications for Patents,

or thereabouts, are for the inventions of Englishmen; the

remaining one-fourth are for the inventions of foreigners, for

the most part Frenchmen and Americans. The country in which

inventions are of the highest value will draw inventions to

it from all others, and so long as any one country protects

inventions by Patent, so long must all countries protect. Were

England to abolish protection of inventions, inventors would

carry their inventions to other countries. Switzerland does not

protect, and consequently the Swiss take their inventions to

other countries.”

Why? What harm though the British inventor should go abroad to patent or

even to work his invention? He must specify it in the country he goes to;

and cannot, will not, our artisans at once avail themselves, and revel in

the free use, of what he there records? Call our nation’s not rewarding

him a piece of doubtful policy, or want of generosity; but banish the

notion that our trade will suffer. It will gain.

But there are defenders of very different calibre: Mr. MacCulloch,[3]

Sir David Brewster, Mr. John Stuart Mill. It is meet I should inform the

House what are their arguments. I find them succinctly stated and well

put in Mr. Mill’s “Political Economy.” I will read the whole of that

gentleman’s observations, interlacing, for brevity’s sake, very short and

unargumentative dissents, if not replies:—

“The condemnation of monopolies ought not to extend to Patents,

by which the originator—”

Does Mr. Mill know that many an invention is patented by some person who

is not the originator, but only the first promulgator in Britain; still

more often, who is not the only originator?

“of an improved process—”

I have already shown that the law, rightly read, can hardly be said to

sanction the patenting of a “process.”

“is allowed to enjoy, for a limited period, the exclusive

privilege of using his own improvement.”

Which means, the privilege of debarring all other people—some of whom

may, after him, or at the same time as he, or even before him, have

invented it—from doing what he is, and they also should be, allowed to do.

“This is not making the commodity dear for his benefit, but

merely postponing—”

For his benefit, and still more frequently and surely for the benefit of

a multitude of other individuals, who have less claim, or no claim at

all.

“a part of the increased cheapness, which the public owe to the

inventor—”

But not to him only, for he invents often along with others, and always

in consequence of knowledge which he derives from the common store, and

which he ought, as its participant, to let others share, if doing so does

himself no harm.

“in order to compensate and reward him for the service.”

The real service, if it be “service,” is the communicating his knowledge.

“That he ought to be both compensated and rewarded for it, will

not be denied;”

But it does not follow, surely, even in Mr. Mill’s logic, that he should

be invested with monopoly powers, which “raise prices” and “hurt trade,”

and cause “general inconvenience.”

“and also, that if all were at once allowed to avail themselves

of his ingenuity, without having shared the labours or the

expenses which he had to incur in bringing his idea into a

practical shape—”

But which, very likely, were trifling, and if heavy, were incurred for

his own sake, and may have produced benefits to himself that sufficiently

compensated all.

“either such expenses and labours would be undergone by nobody—”

Which is a wild assumption.

“except very opulent and very public-spirited persons.”

The former are numerous; the latter ought to be; and the service is one

the nation may well expect of them. Why should not there be innumerable

Lord Rosses, Sir Francis Crossleys, Sir David Baxters, and Sir William

Browns, promoting beneficent commerce by their generosity; and why

should not manufacturers systematically combine as an association to

procure through science and experiment every possible improvement?

“Or the State must put a value on the service rendered by an

inventor, and make him a pecuniary reward.”

And why should we not prefer this alternative?

“This has been done in some instances, and may be done without

inconvenience in cases of very conspicuous public benefit.”

Well: that is a great deal; but why not in cases that are not conspicuous?

“But in general an exclusive privilege of temporary duration is

preferable—”

Now, mark the only reasons adduced:—

“because it leaves nothing to any one’s discretion—”

That is, I suppose, Mr. Mill, to avoid trusting anybody—the danger from

doing which is imaginary, or at least avoidable—would let the nation

remain subject to proved frightful inconvenience and loss.

“and the greater the usefulness, the greater the reward—”

Which, Mr. Mill rightly thinks, is what ought to be, but it is not and

cannot be what happens under Patents; for, on the contrary, rewards

depend mainly on the extent of use and the facility of levying royalties.

“and because it is paid by the very persons to whom the service

is rendered, the consumers of the commodity.”

Here Mr. Mill appears to regard, and it is right he should, manufacturers

as mere intermediates. Well: can they shift the burden which they, in the

first instance exclusively bear, from their own shoulders to those of

the consumer? Perhaps they could have done so before the inauguration

of Free Trade; but since that time, the thing is impossible, and so

will it ever be until the day arrive when either Patents shall apply to

all countries, and in all countries exactly the same royalties shall be

charged for their use, or else they are abolished.

“So decisive, indeed, are these considerations, that if the

system of Patents were abandoned for that of rewards by the

State, the best shape which these could assume would be that of

a small temporary tax imposed for the inventor’s benefit—”

Would he in general get it? And, let me ask, how collected—how

distributed?

“on all persons making use of the invention.”

A thing impossible, however, even for conspicuous inventions; and to

which there is the further fatal objection that there must be none but

such recognised, which might be unfairness, as it certainly would be

partiality. If, as indicated, a tax on all users and consumers, will not

grants from the Exchequer be in the main fair enough as to incidence?

“To this, however, or to any other system which would vest in

the State—”

Why the State? Why not let inventors decide?

“the power of deciding whether an inventor should derive any

pecuniary advantage for the public benefit which he confers,

the objections are evidently [!] stronger and more fundamental

than the strongest which can possibly be urged against Patents.

It is generally admitted that the present Patent-Laws need much

improvement.”

It is not admitted that they can be made satisfactory, do what we will;

and I contend that no extent of mere improvement can overcome the

objectionableness of the restraints and burdens inseparable from the

system.

“But in this case, as well as in the closely analogous one of

Copyright, it would be a gross immorality in the law to set

everybody free”—

Why, everybody is naturally free, and would continue free if the law did

not step in and cruelly take their freedom away, doing which is the real

immorality.

“to use a person’s work”—

A fallacy—to use, it may be, his thoughts, which, as soon as they are

communicated, are no longer his only—and not at all to use his “work” in

any proper sense.

“without his consent, and without giving him an equivalent.”

As if consent were needed to use one’s knowledge, and as if there could

or should be any equivalent.

“I have seen with real alarm several recent attempts, in

quarters carrying some authority, to impugn the principle of

Patents altogether; attempts which, if practically successful,

would enthrone free stealing under the prostituted name of free

trade, and make the men of brains, still more than at present,

the needy retainers and dependents of the men of money-bags.”

Recent discussions on the abolition of patents for inventions in the United Kingdom, France, Germany, and the Netherlands · 第 5 / 26 段