As to “free stealing,” hear what the greatest political economist of

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.”

Recent discussions on the abolition of patents for inventions in the United Kingdom, France, Germany, and the Netherlands · 第 6 / 26 段