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:—