France thinks—
“C’est dans une mesure la même question que le free trade.”
As to the “money-bags,” Mr. Mill plainly is not aware that the dependence
he deprecates is the invariable, almost the inevitable, consequence of a
Patent system.
I am extremely sorry to differ on a question of political economy from
Mr. Mill. But with all due respect I submit that he has not, when writing
the passage which has now been given _in extenso_, realised what a Patent
is in practice. It is the price at which the State buys a specification.
The purchase is a compulsory one, with this peculiarity, that whereas the
inventor may or may not offer to sell—for he is left at perfect liberty,
as in a free country he ought to be, whether to patent and reveal (sell)
or not—yet if he do offer, it is the State, the maker of the law, which,
through the Sovereign, voluntarily puts itself under compulsion to accept
the offer, and—with a defiant violation which the frequency of the deed
in my view makes flagrant of sound principle—pays not out of public
revenues or any funds over which it has legitimate control, but out of
the means of private individuals, reached and extracted either in the
form of exceptional profits on goods the monopolist makes, or by his
levying of a tax called royalties on any of his fellow-subjects whom he
may of grace, if they comply with his demands, associate with himself as
sharers of the monopoly.
Such opponents’ impulses are excellent, but their plan is incompatible
with actual pre-existent interests. They omit to take into full account
the conditions of the everyday world which the statesman has to do with,
and might not unprofitably call to mind a story or parable of juvenile
days wherein certain wise men were represented as, after due counsel,
placing a favourite bird within high and close hedges in order to
gratify their tastes and enjoy melodious notes all the year round. The
conditions of winged existence had not been taken into account; theory
and sentiment could not be reduced to practice. Favouritism, constraint,
and isolation, being contrary to nature, failed. The nightingale loved,
needed, sought, and found freedom. To recall another book of youthful
days. Think of Robinson Crusoe, and the many new inventions his peculiar
position required and elicited. Let me suppose the neighbouring islanders
saw for the first time in his hands a cocoa-nut turned into a cup, in his
hut potatoes roasting in the fire, in his garden guano used as manure.
What would they have thought of Christianity and civilization, if he,
anticipating the pretensions of modern inventors, had alleged, on the
ground of first use, exclusive property in these manufactures, processes,
and applications, and had debarred the imitation for fourteen years? The
unsophisticated savages would have said, “We understand and allow your
claims to possess what you yourself make, but we do not understand, and
we dare not allow, your claim to possess what we make ourselves. You
are welcome to learn what we shall learn, and to do whatever you see us
do. We cannot sell for money the odours that rise from the fruits that
sustain our life; should we forbid to pick up and plant their seeds that
we throw away? Should we grudge the runnings over from the brimming cup
of knowledge which heaven puts into the hand, and the froth at the top
which the wind blows away?” Heathens are pleased to even work at what
is good for all according to opportunity. The fact is, the right of
inventors is too shadowy to have any recognisable existence where there
is not a submissive society to vend to or trample on, and a complaisant
state to compel their submission.
If he were a member this night present with us, I would appeal to Mr.
Mill as a philosopher. Seeing that the world is so framed that whereas
acquisitions of material property or things cannot be possessed in common
without the share or enjoyment of each person being lessened or lost,
it is universally possible that any number of persons, however many,
can possess and use, without any diminution of individual enjoyment,
knowledge or ideas in common, do not wisdom and humanity justly interpret
this as an indication that to interfere is to oppose the order of nature?
Let me appeal to him as a moralist. Seeing that to so interfere with
the communication and enjoyment of knowledge or ideas by limiting the
power and right to apply inventions to use is to withhold that whereby
one man, without loss to himself, may benefit his fellows, do not ethics
favour the philanthropic course which accords with the course that Nature
indicates?
I appeal to Mr. Mill as a political economist. Seeing that the order
of nature and the promptings of philanthropy are favourable to the
communication of inventions and their free use, is it the part of a State
to provide for the gratification of the selfish principle in man by
legislation framed to endorse, and facilitate, and almost to necessitate
it?
I appeal to Mr. Mill as a statesman, and ask, Is it consistent with
enlightened policy to place manufacturers in such a position, that they
are constantly tempted to conceal improvements they are using, from
fear to discover that they are infringing? Does he know so little of
mankind, that he expects them, the poorest as well as the richest, to
employ (and this would be requisite) suitable agents to search whether
any improvement they mean to adopt is already the subject of a Patent
that renders its adoption illegal, and also to institute inquiries as
to who, and where, in the wide world, is the holder of the Patent or
Patents, whom in that case he must first negotiate with and sue for
a licence? Does Mr. Mill think a manufacturer’s time is so free from
absorbing occupations that he can attend to the daily transactions of
the Patent-office, so as to inquire whether such and such a mysterious
application is an unintended, it may be, but in result an effectual,
ousting him from use of a process that he is about to introduce or has
already in operation? Yet these are the superhuman efforts and gifts
which compliance with, and subjection to, any Patent system presupposes
and requires.
Is it nothing in the eyes of this legislator, whose absence from this
House is so generally regretted, that by means of the Patent-Laws there
are thrown loose on men in trade thousands of individuals whose interests
run counter to those of society, men trusted with letters of marque to
prey, not on foreign commerce, but on British? Is it a small matter,
that, having surrendered the principle of discriminating duties leviable
by the State for national purposes, we continue to expose those from
whom this protection is withdrawn to an ever-increasing burden of taxes,
in favour of individuals, levied without State control or any regard to
equality? Does Mr. Mill conceive it is short of recklessness to continue
to stimulate invention by rewards which often turn out ruinous to those
whom they are meant to favour, and which bear not the smallest proportion
to the cleverness, the beneficial results, the cost of elaborating, the
merits or the wants of the inventor, and scarcely to the originality and
legitimacy of the claim of whoever is the applicant? Is he aware that
the advantage reaped by inventors, sometimes very large, is obtained at
so frightful a cost that, as some persons believe, for every pound which
actually reaches him the country loses to the extent of one hundred
pounds? Surely we are asked to obtain our stimulus by a folly (only his
was voluntary, and not habitual) like that of the fabulous sailor who,
for the sake of a tumbler of rum, swallowed the bucketful of salt water
amid which the dangerous stimulant had by accident fallen. I honour the
candour of Mr. Mill, and I hope yet to have his concurrence in my views.
He cannot have reflected on and realised actual facts. One illustration
more, and this of another difficulty which I commend to his attention and
that of any honourable gentlemen who have been carried away along with
him, I give by narrating an incident in my late canvass.
A deputation of the trades of Scotland did the candidates the honour
of submitting to us a very judicious list of questions. One of these
concerned the Patent-Law. They asked, would I support a motion for
reducing the cost of Patents? I answered I would, because I think the
cost too high for the working man; but I added that I would rather see
Patents swept away. One of the deputation properly animadverted on the
hardship this might inflict, and he instanced the case of his brother,
who had invented an improved apparatus for use on board ship. I rejoined
that I accepted the case as sufficient to confirm the conviction that
Patents are on the whole not good, but bad, for working men or any men.
My reasoning was substantially this: In order to reap his reward, the
inventor is required or expected to visit every ship or shipowner at the
port, and endeavour to get the apparatus understood, believed in, and
adopted; and not at Leith only—at every Scotch port, every English port,
and every Irish port. But not to let British shipowners suffer by the
inequality of paying, while rivals use without paying, and at the same
time to promote his own interests, the inventor must take out Patents in
France, Belgium, Holland, and all maritime countries and their colonies.
After he obtains these many Patents he has to sell his apparatus at
all the ports of those countries. The first thing obvious is, that to
do a tithe of that work the inventor must relinquish his own business,
which is the solid beef in the mouth of the dog in the fable, for the
delusive shadow in the water. But never mind that in the meantime: after
the business is relinquished, there remains the insuperable difficulty
of conducting a business so much beyond the power of man as that I have
sketched. He might of course attempt to overcome that by appointing
agents to manufacture abroad or act abroad for him; but where is the
capital to hazard on so great an enterprise? If he were as rich as a
Rothschild, has he the gift of tongues to enable him to correspond in all
languages? And if he had, how can all this work, requiring simultaneity,
be done at once? The end, of course, must be, at the very best—the
Patents, if, indeed, actually taken, are sold for a trifle, and the
persons who secure them, which they only do if valuable, in their turn
sell, for a trifle too; so that the lucky inventor gets but little out of
the tens of thousands or hundreds of thousands of pounds which the public
are made to bear the burden of. _Ex uno disce omnes._
I am unwilling to leave this part of my theme without adverting to a
point which deserves some attention—I mean the tendency the Patent
system has to lower the tone of men of science. In a quotation from Lord
Granville it is seen to be more than insinuated that the sacred claims of
truth are in danger of being compromised by the evidence men of science
are asked and tempted to give in courts of law. But the evil of Patents
begins in the laboratory and the closet; for there is felt the impulse
to conceal anything new and likely to be useful, in order to patent; so
that a conflict is generated between, on the one hand, the theory of the
academic chair which supposes in the very name “university” universalism,
community of knowledge, and on the other, law-created personal interests,
whose nature it is to stifle the man of science’s inherent desire to
spread knowledge and exchange thoughts in order to benefit mankind.
But Mr. Mill presents an alternative. I, for one, have no objection to
see it considered. I have long advocated State rewards; they cannot be
condemned on principle; they are sanctioned by another philosopher. When
I say that I had the honour long ago to receive the following from M.
Chevalier, I am sure of this House’s attention.
_Extract of a Letter from M. Michel Chevalier to Mr. Macfie._
“The Patent system, as constituted in all countries where
it is established, is a monopoly that outrages liberty and
industry. It has consequences that are disastrous, seeing
there are cases where it may stop trade for exportation and
even for home consumption, because it places manufacturers who
work in a country where Patents are established at a great
disadvantage in competing with others who live in States,
such as Switzerland, where Patents are interdicted by law.
Practice, experience, which is the supreme authority in the
world, shows daily, in France particularly, that the system is
a scourge to industry. What might be substituted is a system of
recompenses, either national or European, as you have proposed,
to be awarded when practical use has pronounced on the merit
of each invention, and when the originality shall admit of
being established. All the friends of industrial and social
progress ought to unite their efforts to liberate industry from
the shackles that have been bequeathed from the past. That of
Patents is one of those which there will be most urgency to get
rid of.”
The Continental Association for Promoting the Progress of Social Sciences
favours such rewards. Allow me to quote from a Report of M. Tilliere,
Avocât of Brussels, which was adopted by that body:—
“It is proper to introduce, in respect to industrial
inventions, the principle of _expropriation_ [or acquisition
for behoof of the public], with a view to general benefit,
in order to reconcile the interests of industry and the
requirements of free trade (_libre échange_) with the interests
of the inventor.
“It is desirable, for the satisfaction of the same interests,
to establish between the different countries by means of
stipulations with reference to Patents in International
Treaties, uniformity of system, and, pursuant thereto, to
provide a depôt where, without the necessity to patent in every
particular country, specifications might be lodged that shall
be recognised and published in all.”
The House will observe that in connexion with the principle of
State rewards, or, what is nearly allied to it, of expropriation,
the Association commended another principle, that of international
arrangements as to inventions. On the occasion when the report I quote
from was adopted, another eminent French economist, Professor Wolowski,
spoke as follows:—
“The free competition which ought to exist between peoples
requires that Patents should be everywhere ruled by uniform
laws. Intellectual property must everywhere have limits within
which there shall be exchange, in order that its products may
everywhere circulate under the same conditions. International
legislation with regard to Patents is an object to be
earnestly pursued. It responds to the demands of free-trade,
satisfies the needs of liberty of manufacture, and provides a
compensation for a shortened term of Patent-right by extension
of area.”
But I come nearer home, and am happy to be able to quote concurrence
in the idea of national rewards on the part of one of our great staple
manufacturers, the sugar refiners. The refiners of Scotland many years
ago petitioned Parliament in the following terms:—
“That, in the opinion of the petitioners, it is highly
desirable that your honourable House should devise some means
whereby discoverers of valuable inventions (to whom alone
Patents should be granted) might be rewarded by the State, and
trade be relieved from the restrictive operation and expense of
Patents altogether.”
Tending in favour of rewards rather than Patents is the following
evidence, given before the Royal Commission by Sir William Armstrong:—
“How would you give these rewards in the absence of a
Patent-Law?—I am not prepared to say that. If the country would
expend in direct rewards a tithe of what is paid for Patent
licences and expenses, there would be ample provision for the
purpose. As a matter of opinion, I believe that if you let
the whole thing alone, the position which a man attains, the
introduction and the _prestige_, and the natural advantages
which result from a successful invention and from the
reputation which he gains as a clever and able man, will almost
always bring with them a sufficient reward.”
A successful inventor writes me:—
“I should be very glad to see a good round sum set apart by
Government for the purpose of being awarded to real inventors
by competent and impartial authority. Then the poor inventor
might have some chance.”
It is not out of place to inform the House that so far back as the
earliest years of the Patent system a precedent can be adduced. In 1625,
Sir F. Crane received a grant of £2,000 a-year for introducing a tapestry
manufacture. There are several other precedents for similar grants of
public money.
Of course, to reward is not to purchase. We do not buy any man’s
invention or secret. But if he thinks proper, as a good subject, to
reveal that secret, we mean he shall have a substantial mark of favour.
Something like this was, no doubt, the original intention of Patents;
only the favour took the form of monopoly for introducing and working a
manufacture, whereas we prefer to pay, as soon as the value and benefits
of the invention made can be guessed at, such a sum of money as will
be neither, on the one hand, from its magnitude made oppressive to the
people, nor, on the other, from insignificance or paltry conditions
unworthy of a noble mind, whatever the rank, to accept. What is given
will be proportioned to merit or service, and will be, in the fullest
sense, a _honorarium_, a complimentary gift, a mark of national
approbation and gratitude. We all know, though few of us think of it
as a striking proof how Patents have declined in public esteem, that
among us to be a patentee is by no means usually reckoned an honourable
distinction. It is the same in France.
“The title of patentee is falling into greater disrepute every
day from the abuse which is made of it.”
This prejudice we must remove, and we can do it. I believe in the
possibility and advisableness of presenting, as a substitute for Patents,
a system of rewards which will reconcile the honour and interests of men
of science and those of practical men, the interests of the master and
those of his workmen, the interests of the many and those of the few.
Such a system, while entirely emancipating commerce and industry, must,
as its condition, deal out its rewards more equitably than the Patent
system does, and with more regard to the just claims of inventors. It
must distribute these without the tedious delays now suffered from. Its
rewards must, in contradistinction to present experience be sure, easily
attainable, and suitable for poor as well as rich. I respectfully submit
the following scheme as one that at least may form a basis for some
system that will obtain general acceptance.
_New System of Rewarding Inventors and Promoting the Publication of
Inventions._
1. The Patent-office to be turned into an office for recording inventions.
2. (Forms for specifications to be furnished gratuitously.)
All specifications to contain a certificate that the inventions promise
to be useful, and are believed to be new, from three persons familiar
with the trade chiefly concerned; one of whom, if the inventor is an
_employé_, to be his employer.
3. These specifications to be registered.
4. Any time after an invention has been tried and proved practically
useful, a fact to be duly certified, the inventor to be allowed to claim
that the invention shall be reported on.
5. A Chief Commissioner for Inventions shall appoint one or more
examiners for this purpose, whose duty it shall be (after, if needful,
first visiting the scene of operations, and conferring with practical
manufacturers) to recommend, if they think it worthy, classification for
a reward, prize, or certificate of merit.
6. Once a year the head of the Invention-office, with the help of
an Adjudicatory Committee, who shall form an Invention Commission,
shall classify the several inventions that have been in the previous
twelve months certified as having been for the first time brought into
beneficial use.
7. In his classification the first rank shall entitle to a
reward of £10,000.
2nd 5,000.
3rd 1,000.
4th 500.
5th 100.
6th 50.
7th, Gold Medal, or value in money.
8th, Silver Medal ”
9th, Bronze Medal ”
10th, Certificate of Merit.
8. Parliament shall annually place at the disposal of the Invention
Commission £200,000, from which shall be defrayed the expenses of the
staff, and fees to “reporters,” as well as of the several publications
showing the progress of Invention that shall (as now, but on an improved
system) be issued; the balance to be distributed in rewards and prizes,
with an understanding, however, that the amount must be reduced if the
total awards of the Commission shall exceed the money at its disposal.
9. In appointing Commissioners Government shall consult the various
trading interests of the nation in order to select the most acceptable
persons. Inventors collectively might have a veto or the initiative.
10. The prizes may be divided between the originator of the idea of any
invention and the successful introducer into practical use.
11. Where there are rival claimants, the expense of deciding priority in
respect of time and merit to be borne by themselves.
12. The Commission to be at liberty to correspond with foreign nations,
and act in concert with any that shall establish instead of Patents a
system of rewards.
13. In cases in which pre-eminent merit, especially if there has been a
course of costly experiments antecedent, appears to entitle to a reward
greater than the largest in the schedule, Government may propose to
Parliament special augmentations. I do not presume to recommend Royal
decorations and titles, though such honours would be much valued.
A writer on Patents has judiciously said—
“It would seem very desirable that a system of registration for
all improvements or ideas which an inventor may think of minor
importance should be instituted, whereby any one could, at a
moderate cost to defray expenses, deposit at the Patent-office,
a description of any new idea, improvement, or invention.”
My scheme is calculated to answer this good end.
Here I may fitly call attention to an interesting and instructive
analysis which Mr. Woodcroft submitted to the Commission. He showed—
RESULTS of the EXAMINATION of the first hundred inventions, for
which applications for Patents were made in each of the years
1855, 1858, and 1862 (abridged).
1855.
“Of the first hundred inventions for which applications for
Patents were made in the year 1855, none are apparently of
considerable value.
“Four of the hundred inventions appear to be of some, but not
of great value, and Patents were granted for all of them.
“The remaining ninety-six of the hundred inventions seem to be
of little or no value; and Patents were granted for sixty-six
of them.”
1858.
“Of the first hundred inventions for which applications for
Patents were made in the year 1858, none are apparently of
considerable value.
“Three of the hundred inventions appear to be of some, but not
of much value.
“The remaining ninety-seven of the hundred inventions seem
to be of little or no value; and Patents were granted for
sixty-two of them.”
1862.
“Of the first hundred inventions for which applications for
Patents were made in the year 1862, one is apparently of
considerable value.
“Of the same hundred inventions one appeared to be of some, but
not of great value.
“The remaining ninety-eight of the hundred inventions seem to
be of little or no value. Patents were granted for fifty-nine
of them.”