I conceive, on the basis of this evidence, that the estimate I am now

about to give represents, relatively, but I will not venture to say

absolutely, a fair view of probable claims. It also affords some guide

for anticipating what, coming from the Exchequer, would be a reasonable

total vote for rewards. Such a sum, or even a larger, Parliament should

willingly grant. It can be proved to be true national economy. The

nation, as individuals, is paying vastly more now. For that burden

Parliament, by not removing Patents, is alone responsible.

1 at £10,000

3 at 5,000 15,000

12 at 1,000 12,000

84 at 500 42,000

250 at 100 25,000

400 at 50 20,000

Medals and Certificates

of Honour and Merit 1,000

--- --------

750 £125,000

I am aware that inventors have hitherto drawn such large sums in some

cases (in many or most cases claiming more than they got), that they may

at first hardly be pleased with my proposal. But they should remember

that the sums set down are those derivable from one country alone—one of

the between forty or fifty countries which give Patents now. The revenues

from these other countries, therefore, are to be added. They will also

consider that it is optional whether or not they apply for rewards. Let

them work in secret, if they will and can. But if they resolutely contend

for Patents, let them know the time for abolishing these is at hand; and

abolition may come, if they resist it, without even this substitute.

I have endeavoured to show what I believe to be true—that Parliament,

when it, by the Act 21, Jas., 3, tolerated monopolies for inventions,

did not sanction any system at all like that into which Patents have

developed, or degenerated; that, in defiance of the Act, Patents are

granted so as to create the evils which Parliament expressly sought to

shield the nation from; that recent legislation has aggravated the great

evils that pre-existed; that a Commission has satisfied itself that no

radical or sufficient remedy can be applied; that the arguments of the

defenders of Patent monopolies are untenable; that the most eminent

statesmen, lawyers, engineers, manufacturers, and philosophers plead for

abolition; that the State is at liberty, and has the power, to devise,

if it wills, a better method of dealing with inventions, but that such a

method must be one that leaves manufacturers free, and able to compete

with continental rivals by at once adopting, without any burden of

royalties, every most recent improvement.

To conclude: this great and vital question cannot longer be deferred. It

must be taken up, and that early, by what is expected to be a working

Parliament—a Parliament, too, which for the first time can claim to

represent labour and operative industry. Parliament has legislated

in order to the preservation of salmon, and required the removal of

obstacles on the coasts and in the rivers. Here are far worse obstacles,

affecting not a luxury, but all our necessaries of existence, and every

means of earning a livelihood.

Again: are we not asked to remove light-dues at the sea and tolls on

the land? But what are these unimportant, sparse, and withal equitable

taxes, compared with the close-recurring stoppage and the indefinite

and heavy demands for questionable “service” which Patents constitute?

Yet, again: By arrangement with France we recently abolished the

time-sanctioned petty exemptions of free-men; but here we are continuing

to levy more burdensome private taxes, with exemptions in favour of

foreigners! It is they, indeed, whom the provisions of the Patent-Law

strangely serve. Foreign countries are not so liberal to British subjects

as we are to theirs;—why should they? The number of Patents we grant in a

year to foreigners has increased within a short period tenfold—to about

880, or about twelve times the whole number that Prussia grants to her

own subjects and all the world besides. Well may Sir William Armstrong

remark in his evidence:—

“Unless you wish to benefit the foreigner, unless that be the

sole object, as a matter of policy, I do not see what the

motive to apply the Patent system is.”

The same witness said also:—

“Is it the fact that Patents are taken out in this country

for processes which are in operation abroad, but which have

not been previously introduced into this country?—Certainly.

A process in actual operation abroad, which has not been

published in this country, can be made the subject of a Patent.

“Is it practically the case that processes which are carried on

abroad are brought into this country by parties who patent them

here?—Yes.

“A great number every week?—Yes, constantly.”

Any one who has followed me in the statements I have presented will

see that, while we have been retrograding and making our system of

monopoly wider and worse, the Continent, to which a Patent system was

first introduced just three-quarters of a century ago, is ahead of us in

respect of the prudence with which exclusive privileges are granted and

administered. There, as a rule tolerably general, Patents of importation

are treated less liberally than those granted to inventors. The early

and almost continuous working of the Patent within the kingdom is

required; it lapses when expiry abroad exposes to foreign competition;

expropriation is provided for; there is more scrutiny; medical appliances

and food are excluded, &c.

But this is merely one, and a comparatively unimportant, fault of the

system. There are many faults, as we have seen, much more serious, and

which the Commission deem irremovable. I must, therefore, protest against

injury done by the Patent system to our manufacturers and artisans, and

through them to the nation.

These interests, the interests of us all, cannot with impunity be

subjected longer to the hardships that I have endeavoured to expose.

Times are changed. British and Irish manufacturing pre-eminence

is passing away, not indeed by its actual retrogression, but by a

simultaneous and relatively more rapid progression of rivals on the

Continent, who, in not a few cases, are competing successfully, even in

our home markets, in those articles of commerce and manufacture in which

but lately we, perhaps conceitedly, supposed we had outstripped, without

a chance of being overtaken, all conceivable rivals. The motion, of

which notice has been given, is:—

“That, in the opinion of this House, the time has arrived when

the interests of trade and commerce, and the progress of the

arts and sciences, in this country would be promoted by the

abolition of Patents for inventions.”

Unless, indeed, Government and the House prefer in the first instance

fresh inquiries through a Committee or Royal Commission, in behalf

of which course it is fair to allege the circumstance that artisans

and operatives were not represented among the witnesses in former

investigations, I submit that this motion ought to be at once adopted.

Such action on our part will commend, and, in a sense, inaugurate,

a principle which the nations of the world, who copied our present

system, will not be slow to appreciate and embrace. Restoration of that

effete system to its earlier moderate dimensions—rectification, however

thorough, of the wrongs it involves towards inventors, will not suffice,

and need not be attempted. The time has come, not for palliatives nor

remedies, but for removal out of the way.

[2] Another illustration naively presented us, even by Mr. Hindmarch,

of the characteristic logic and boldness of the Patent interest, which

may surprise “inventors’ friends” accustomed to rely that our system of

Patents is legal and constitutional, will be found in the Appendix.

[3] What would Adam Smith think of his commentator?

SPEECH OF SIR R. PALMER, K.B., M.P.

Sir ROUNDELL PALMER, in seconding the motion, said he had long felt

convinced that this subject was one of great and growing importance,

which it would be necessary at an early period to bring before the

attention of the House. He rejoiced that it had been undertaken by a

practical man like the honourable member for Leith, who could speak

upon it, not under the influence of any of the partial views which

possibly those who looked at it from a lawyer’s point of view might be

thought by some to entertain, whether they were in favour of or against

Patents. He was glad to find that practical men like his honourable

friend had arrived at conclusions which, in their broad principles,

were substantially the same as those to which many members of the legal

profession, who had had a good deal of opportunity of observing that

matter, had in common with himself, come. He was bound to state that

he thought the time had arrived rather for opening than for concluding

the discussion of that subject; and, therefore, he hoped he should not

be thought to do anything inconsistent with the duty he had undertaken

in seconding his honourable friend’s motion, when he said at once that,

for his own part, he was inclined to go to the root of the matter and

abolish Patents altogether, and not attempt to substitute even such a

system—although it might probably be preferable in many respects to the

present system—of rewards, as his honourable friend had mentioned. Of

course those who derived benefit—whether they were the public or were

private individuals—from the discoveries that might be made if Patents

ceased to exist, might always take into consideration the value they

received, and pay for that benefit, as he believed the Government now

did, although it was not bound by Patents, with respect to improvements

which were useful to the public service. But that, he conceived,

would be a very different thing from an organised system of rewards

at all analogous to the present system of Patents. He might mention,

in passing, a third plan, which had found very able and authoritative

advocates, and which he should also greatly prefer to the present system,

although he thought total abolition would be better than that likewise.

He referred to the plan of putting an end to the notion that every

person who invented anything had a right to a Patent, and recurring to

what, he imagined, was originally the principle intended—namely, the

giving of Patents as a matter of grace and favour in well-selected and

discriminated cases, in the exercise of a discretion by an authority

entrusted with that discretion. But, as he had already said, he confessed

that he himself was not for half measures in that matter. He thought

they had a right, as the motion proposed, to say that at the period of

progress in the history of the arts and of trade in this country at

which they had arrived, they could do much better without these props.

He called them props because he thought they were meant to be so, but

he believed that at present they were nothing but obstructions and

hindrances to trade and the arts. Let him, in the first place, notice

the principle on which the Patent-Law was generally supported. Some

persons imagined that there was a sort of either moral or natural right

in inventors to some such protection as was given by Patents, and the

principle was sometimes expressed in this way—that a man had a right

to the fruit of his brain. Now, he held that invention and discovery

were essentially unlike Copyright. Copyright applied to a creation: a

man wrote a book; he thus brought into existence something which had no

existence in the nature of things before. The rest of the world were

not in the race with him to write that particular book. But in the case

of inventions and discoveries, the facts with which they were concerned

lay in Nature itself, and all mankind who were engaged in pursuits

which gave them an interest in the investigation for practical purposes

of the laws of Nature, had an equal right of access to the knowledge

of those laws and might be equally in the track for obtaining it. All

who were engaged in particular arts and manufactures were actually

upon the track which led to the discovery of the useful application of

those laws; and the knowledge of them was the common stock and property

of all mankind who were equally in pursuit of it. He could not allow

that the man who was first in the race of discovery could claim for

fourteen years, or any other term, an exclusive property in a portion

of the common stock of knowledge which was accessible to all who used

the proper means of discovering it. It could not be said that on any

considerations except those of public advantage and expediency the man

who made the first discovery of a law of nature, or the right mode of

applying it had an exclusive right to apply that discovery for a certain

period. It was said, however, that Patents were useful to the public,

either as stimulating invention, or as insuring the publication of useful

discoveries; and he did not venture to say that the time might not have

been when they answered both of those purposes. Bounties and premiums

might be adapted to a rude state of the arts, and an early stage in the

progress of commerce, but when a nation had reached so high a degree of

progress in all ingenious arts and discoveries and in trade and commerce

as we had, he thought that in this department, as well as in others, the

system of bounties and premiums was much more likely to be mischievous

than useful. But of course one could not demonstrate that point by

resting merely on an abstract proposition, and therefore he would ask the

House to look at two or three things which it seemed to him would put the

matter in a strong practical light. Patents might be divided into those

which might be popularly called meritorious, and those which were not

meritorious. The former class were certainly not one in a hundred of the

total number of Patents, and the latter class were very numerous in every

year. How, then, did the system work as regarded meritorious Patents? He

supposed it would be admitted that among the most meritorious discoveries

of recent times were the steam engine, the electric telegraph, and the

screw propeller for ships. These cases furnished excellent illustrations

of the way in which the Patent system worked. Take the electric

telegraph. According to the evidence on the subject it was not possible,

even for those who best understood the matter, to say who was entitled

to the merit of that invention, so gradual and imperceptible was the

natural growth and progress of knowledge and discovery in reference to

it. But about 400 or 500 Patents had been taken out as marking different

steps in the investigation of that subject. As to the screw propeller, he

had seen a book which represented the collected Patents of one company

as being 90 or 100; and he understood that the case was very much the

same in regard to the steam engine. They were not dealing, in the case

of the most meritorious inventions, with a true discovery by a single

inventor, but with an important branch of practical knowledge at which

many men were working at the same time, and in regard to which each step

attained indicated the next step that was to follow, and many persons

together were on the road. Well, but if they were on the road, the public

would get the benefit of the discovery, and the question was whether, by

enabling each person on the road to stop up the road at his particular

point, they were not really retarding the progress of discovery, and

throwing difficulties in the way of even the most valuable inventions.

There was no one better acquainted with that subject than a friend of

his—a gentleman very eminent both in science and in law. He meant Mr.

Grove; and those members of the legal profession who had to encounter Mr.

Grove in a Patent case knew they had a very difficult task indeed before

them. Now, here were the words of Mr. Grove in reference to that subject:—

“Always when a discovery has been made when the public has

reaped the fruits of it, there is no case, and never was a

case, either in the history of pure science or in the history

of practical discovery, where it is not alleged, ‘If you look

at such a book and such another book, you will find that so

and so has been done, and you will find that it has been

anticipated.’ That is partly true and partly false. There are

in all such cases approximate anticipations. The difference

is, that one man gets at the points, hits the real thing which

will do it, and the reason why it will; whereas other people,

although they may have got the thing, have not acquired an

accurate knowledge which will enable them with certainty to

produce it.”

That showed the House that the race was often so close that even the

man who had hit the thing might be shut out by somebody else who did

it a trifle better. Nothing could be more true than that. Would the

House allow him to quote the example of a very important Patent, which

he thought would make the matter clear, and indicate how much they

might lose by a system of that description. For a very long time the

distillation of oils from shale and coal had been a matter of the

common knowledge—aye, and of the common practice, of mankind. Early in

the present, or towards the end of the last century, it was practised

by means precisely similar in all points to those which the present

patentees used in this country. But it was not known commercially that

there was such a thing as paraffin, nor was it known commercially how

to distil it. The oil was, indeed, obtained in a rough way, and without

that nicety of discrimination which afterwards resulted from scientific

knowledge of the article itself. All chemists knew that in order to

distil these oils it was necessary to keep the temperature as low as

possible. This was the state of knowledge when a great German chemist

discovered that by operating on wood, tar, and other substances, he could

produce paraffin in small quantities. He also said it could be got from

coals in precisely the same way as was subsequently done by patentees

in this country. But still the German chemist’s experiments were of a

scientific and not of a commercial character. He neither produced it

commercially nor did he hit upon the material from which it could be

commercially produced. The same oil could be produced from shale. Only

the other day there was discovered in Scotland a new kind of mineral, as

to which the scientific world were at variance whether it was coal or

shale. Patents had been already taken out for distilling oil from shale,

and, therefore, if the newly-discovered substance were shale, oil could

not be obtained from it without an infringement of those Patents. But a

Patent was taken out by a gentleman who stated that his object was to

use bituminous coals for the purpose of distilling paraffin. In point

of fact, he hit upon a mineral which was _in ambiguo_, whether it was

coal or shale, but which the authorities ultimately pronounced to be

coal. From this substance the oil could be produced in large quantities.

This gentleman took out his Patent, notwithstanding all the previous

knowledge on the subject, and notwithstanding the fact to which the

learned judge who decided the case in one of its branches referred in the

following terms:—

“There is ample evidence that the attention of practical

chemists was previously to the date of Young’s Patent

laboriously directed to discover the proper material and the

proper means of producing these articles in sufficiently large

quantities for common purposes.”

The public literally had in their hands all the necessary elements of

knowledge belonging to the subject, and yet the first person who found

that this particular coal was more bituminous than others excluded the

rest of the world from that manufacture for fourteen years, and of course

amassed a large fortune. Substantially, the test in the courts of law

was whether a man had made money and brought the manufacture into use.

If so, the courts assumed that all previous knowledge was inadequate and

useless, and the man who was successful in the manufacture was regarded

as the discoverer. Was it not quite clear, however, that the public

were so far on the road to this discovery that it would have assuredly

been found out and enjoyed by the public at large if the path had not

been obstructed by the Patent? He would now mention another case. In

the days of our youth mills were much infested with flour flying about

in them. All the millers, both in this country and abroad, wanted to

get rid of this nuisance, and they were possessed of the scientific

principle and the mechanical means by which this desirable object would

be accomplished. They tried experiments with fans which created a draught

to draw the air from the millstones, and everything depended on the

adjustment of a plan to draw just sufficient air and no more. People

were actually on the road, and were doing the thing in an imperfect way,

but in such a way that if they had continued after the granting of the

Patent it would have made them infringers of it. But the man who proposed

to do just enough, and no more, was held to be entitled to a Patent,

whereupon all the millers in England combined to go into litigation in

order to defend themselves. Law-suits of the most enormous and oppressive

magnitude resulted simply from the circumstance that a man had been

allowed to step in and prevent the millers from carrying on their

business in the best way. That they would have found it out was certain.

That was certainly the impression on his mind. He thought it was almost

certain that the discovery being in the direction of their necessity,

and depending on the application of a known principle and of known

mechanical means, was a discovery which could not in the course of nature

have been long delayed. Having said thus much about those Patents which

were meritorious, he would make a few remarks on those which were not. A

great number of Patents were simply frivolous, and related to practical

nothings, but still nothings affecting trades, and standing like lions

in the path to frighten tradespeople, and to expose them to risk,

litigation, and annoyance, if they manufactured those articles which they

ought to be at liberty to manufacture. Then there were other Patents of a

less frivolous nature. They related to some little combination of a kind

which really was so plainly in the open path, that everybody ought to be

at liberty to use it. These, however, furnished the staple of the great

majority of Patents, which, though they did no practical good, operated

to a great extent in hindering subsequent inventors in effecting further

improvements, because these Patents covered almost the whole ground of

everything that could be possibly done. An inventor, unless he paid a

tax to the owners of prior useless Patents, was exposed to litigation,

and even if he were willing to pay the tax, the owners of the prior

useless Patent might refuse to grant him a licence. Thus for the space

of fourteen years these useless Patents might not only do no good to

the public, but might actually stop the road to all further improvement

during that long period. On this subject evidence had been given by

three persons of eminence—Mr. Scott Russell, Sir William Armstrong, and

Mr. Platt. These gentlemen agreed in saying that the useless Patents to

which he had just referred were a practical nuisance, and, if so, it was

obvious from their number that they must be a very great nuisance. Mr.

Scott Russell said:—

“There are a great many Patents of this kind (practically

useless, but not appearing so on the face of them) taken out

for boilers of steam-engines, and boilers of steam-engines

admit of very enormous variety of shape and proportions,

without damaging their efficiency. The consequence is, that it

is hardly possible at this moment for a man having to scheme

a boiler for a new situation or new circumstances to avoid

putting his foot in so doing into a trap which somebody has

previously set for boilers.... Nearly the whole of the Patents

for the boilers of steam-engines at this moment are of no

practical value to inventors or to the public; but they are

continually getting every man who makes a boiler into a scrape

with some patentee, because almost every conceivable form of

boiler having been previously patented, and bit of a boiler,

one cannot make any sort of boiler without infringing some

man’s patent.”

He said precisely the same thing of screws. Then Mr. Platt, a well-known

machine-maker, said:—

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