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.”