that passes but what we have a notice of some kind or other
of things that we have never heard of in any way, and do not
know of in the least, that we are infringing upon them; and
the difficulty is to get at any knowledge. We may be now
infringing, and may have been infringing for years, and a
person may have been watching us all the time, and when he
thinks that we have made a sufficient number, he may come down
upon us, and there is no record. If a thing is entirely new,
there is a record by getting a description; but what I mean
by a description is this—A very large number of Patents are
now taken out for what is termed a combination of known things
for the same purpose, and the descriptions of those Patents
are generally so bad that it is impossible to tell the parts
that are actually patented. It is only when you come into
court, or after making some compromise rather than go to that
expense, that you ascertain that fact, and very likely they
themselves in many cases do not know the parts that they have
actually claimed. It appears to me that, as to that question
of combination, the granting of Patents for things to do
precisely the same work in the same machine, with the addition,
perhaps, of a chain or a couple of bolts, or the form of the
lever changed, a straight lever made into a compound one; in
matters of that kind it has become a very serious question as
to conducting a large business.”
These were examples which it would be very easy indeed to multiply, and
if the objections he had urged against the meritorious Patents were
well founded, what could be said in favour of the large proportion of
Patents which were thus simply obstructing the trade and commerce of the
country? Could any one doubt that in this advanced era of knowledge the
public would gain, on the whole, by the abolition of the Patent-Laws?
Before he left that part of the subject he wished to mention one very
pregnant fact. There was in this country a powerful consumer—he meant the
Government—which, with respect to fire-arms, cannon, ships, and things of
that sort, would be placed in a very singular position indeed if it were
subject to the Patent-Laws. During the time he had the honour of being a
law officer of the Crown, an extensive war was, as the House was aware,
unfortunately raging, and a large number of Patents had come under his
consideration in connexion with so-called improvements in ordnance and
ships. It would be seen from the evidence to which his honourable friend
had referred that the authorities at the War-office and the Admiralty
had patentees swarming like hornets about their ears, and that the
public service seemed, in consequence, likely to be obstructed to a very
inconvenient extent. The question was then tried whether the Crown was
bound by Patents at all, and a decision was obtained to the effect that
it was not. But while the Crown was free it should be remembered that the
people at large were subject to the law as it stood, and if in the case
of the Government the claims of patentees were found to be monstrously
inconvenient, it might not be difficult to believe that they operated
in the same way in the case of the rest of the world also. He should
not enter into the minor details of the improvements which had been
recommended by the Commission, but there was another point to which he
wished briefly to advert before he sat down; he alluded to the question
of the protection of the public against invalid and bad Patents. The
whole argument in favour of Patents proceeded on the supposition that
the public were likely to be really benefited by some discovery which was
worth the price of all the inconvenience and obstruction to which they
were exposed under the present system. But if they said that they gained
nothing by the Patent, and that they only wanted to be set free, what
was the position in which they stood in reference to the cardinal point
of protection against bad Patents? Was there really any protection in
that respect in the duties which were discharged by the law officers of
the Crown? It was impossible for the law officers of the Crown, acting
on the mere statement of the patentee, to know with certainty whether
a so-called discovery was new or not. They could only examine into the
question whether an alleged invention, as described on the face of it,
was or was not satisfactory, but they could in no way protect the public
against having an old thing put forward as a new, or a useless as a
useful invention. Indeed, the attempt by means of any sort of preliminary
investigation to establish the utility or inutility of a Patent must,
in his opinion, necessarily fail so long as the granting of Patents was
a matter of right and not of discretion. And what was the result when a
Patent came to be disputed in a court of law? Everybody was aware that
such litigation had acquired a reputation infamous beyond every other.
In the Paraffin Oil Company’s case, which had been referred to, the time
occupied before Vice-Chancellor Stuart was not less than thirty whole
days. Why was so large an amount of time consumed in those cases? Because
it was necessary to enter into the whole history of the discovery in all
its numerous stages, and to beat up witnesses all over the country, so
that a voluminous mass of scientific evidence had to be produced. That
was the reason why the expense in those cases was so enormous, while the
public were in every point of view placed at an immense disadvantage, for
the presumption was in favour of the patentee, who, if he happened to
have succeeded in an action against another person, was entitled to have
the fact put in evidence in the case, and might subject his opponent to
extra costs. But that was not all. In a case, he believed, of a Patent
for the purifying of gas by the use of metallic oxide of iron, it came
out that there were two kinds of oxide, the hydrous and the anhydrous,
and that the one would effect the object while the other would not;
but, because the terms were general, although everybody who tried the
experiment might arrive at the result desired, the Patent was held to be
bad, and another person who took out a Patent for the hydrate had his
Patent made good. Lord Westbury, who was as well acquainted with the
subject as anybody who had in recent times occupied the woolsack, said in
1862, in speaking on that point:—
“To vitiate a Patent by prior publication, whether in a prior
specification or in a published book, &c., the antecedent
statement must be such that a person of ordinary knowledge
of the subject would at once perceive, understand, and be
able practically to apply the discovery without the necessity
of making further experiments. If anything remains to be
ascertained which is necessary for the useful application of
the discovery, that affords sufficient room for another valid
Patent.”
It would be seen, he thought, from what he had stated, that the
public were placed at a great disadvantage in the contest. In dealing
with Patent cases in a court of law there was generally a vast array
of witnesses to be examined, consisting of mechanics, chemists, and
scientific men of all sorts on one side and the other. Then there were
the jury, who knew nothing of the subject, and the judge, who might be
placed in a worse position, because he might imagine he understood all
about it when he did not. He did not, of course, mean to say that the
judge did not sometimes understand it, but it might very easily happen
that an ingenious professional witness might so argue the case under the
form of giving evidence as to lead the judge to think that he really knew
all about it when such was not in reality the fact. Then the bias being
in favour of the patentee, the result of such trials almost invariably
was, that if the matter happened to be of any practical importance, the
public were defeated, after having endeavoured to protect themselves at
an enormous expense. He would not enter into minute details, but probably
he had said enough to show that a great practical evil arose out of
Patent-Laws, and that for this evil there was little or no corresponding
benefit. He did not think that we should lose really valuable discoveries
if the Patent-Laws were abolished. There might be some rare instances in
which particular circumstances might give to particular inventors motives
for suppressing and facilities for suppressing discoveries which were not
patented. But, assuming that to be possible in some cases, it operated
even now, for it was well known that Patents were bought up for the
purpose of being suppressed, and it was understood also that inventors
were the persons who derived the least advantage from their inventions.
His conclusion, therefore, upon the whole matter was that the time had at
last arrived—even if it had not arrived some time ago—at which the public
interest would be promoted by the entire abolition of the present system
of monopoly.
[This speech and the succeeding one have been obligingly revised for the
press by the speakers.]
SPEECH OF THE RIGHT HON. LORD STANLEY, M.P.
Lord Stanley said that, agreeing substantially in the arguments of the
honourable and learned gentleman who had just sat down, he should not
have troubled the House if it had not been for the circumstance that
he was chairman of the Royal Commission which sat upon the question of
the administration of the Patent-Law some years ago, and he thought,
therefore, that it might be expedient he should state what was the result
which that inquiry produced upon his mind. There was no doubt that,
quite apart from the principle of the law, the details of the law, as
at present administered, were not satisfactory; and, if the law were to
continue in any form, he believed that in the report of that Commission
various suggestions would be found by which the most prominent objections
to its present working might be removed, and fair trial might be given
to the principle itself. But it was impossible to carry on an inquiry
of that kind, even limited as it was—it was impossible, at least, for
him, and he believed he was not the only one in that position—without
finding a doubt raised in one’s mind whether any Patent-Law could be
framed in such a manner as not, upon the whole, upon the balance of good
and evil, to do more harm than good. That conclusion, he was bound to
say, was totally opposed to his earliest impressions upon the subject.
He resisted it for some time, but the more he had to look into this
matter—the more he had to consider how great were the practical abuses
and inconveniences of the existing system, and how difficult it would
be to remedy them—the more clearly it appeared to him that the evil
was really irremediable, being inherent in the principle itself. On
this subject of Patents there had been a certain amount of prejudice,
particularly in the minds of literary men, who appeared to think that
Copyright was only a modification of the same principle, and that if
Patents were abolished Copyright would follow. The analogy seemed a
plausible one, but he thought that, on being looked into, it would not
hold water. The difference was simply this: He did not rest it on any
abstract ground as to the distinction between invention and discovery,
but on the obvious fact that no two men ever did or ever would write,
independently of one another, exactly the same book; each book, be it
good or bad, would stand alone; whereas it might happen, and often did
happen, that two or three men, quite independently of one another,
would hit upon the same invention. That alone established a distinction
between the two cases. He was not disposed to place the objection which
he entertained to the system of Patents upon the ground of any abstract
impropriety in giving a man a property in ideas. To a certain extent you
did in the case of Copyright recognise a certain qualified and temporary
property in ideas; and if it could be shown that a man’s ideas had been
of a nature to add greatly to the wealth of the country, he did not
think that any abstract considerations of the kind mentioned by the
honourable member (Mr. Macfie) would induce anybody to grudge to such
a man any reward to which he might fairly be entitled, provided that
that reward could be given in a manner free from objection on other
grounds. The objections which he felt to the principle of Patents were
threefold. In the first place, you could hardly ever secure the reward
going to the right man. In the next place, you could not establish any
proportion between the public service rendered and the value of the
reward received, nominally, for that service. And, thirdly, you could
not by any arrangement that he had been able to discover, prevent very
great inconvenience and injury being inflicted upon third parties. With
regard to the first point—the difficulty of securing that the reward
should go to the right man—it must be remembered that a Patent did
not, as some people supposed, bring to the holder of it an immediate
pecuniary recompense. All that it did was to give him a right to prevent
any one else from using his invention without paying for it, and if that
Patent were infringed he was entitled to take legal proceedings. But
everybody knew that law was costly, and that Patent suits were the most
costly of all. It was notorious that Patents were continually infringed
by persons who well knew they were infringing them, but relied upon
the inability of the inventor to incur the expense of defending his
property. If a poor inventor took out a Patent, and the Patent promised
to be productive, in nine cases out of ten he was obliged to sell it to
some one who could command capital enough to defend it in a court of
law. If the Patent remained in his own hands, it was quite sure to be
infringed, and then he would probably be crushed by the law expenses. He
did not know whether it would be possible to obtain accurate information
upon this point, but he really did not think he should be exaggerating
if he said that in nine cases out of ten—probably in 99 out of 100—the
reward was obtained, not by inventors or their representatives, but by
persons who had bought the Patent on speculation and at a very low rate.
He said at a low rate, because there was a great deal of uncertainty
about such property, and until a Patent was tested by actual working you
could hardly say whether it was valuable or not. What was the practical
effect of this? Why, that a few great firms in any branch of business,
buying up at a low rate any new Patent applicable to their business, and
prepared to fight for it, could so hamper other competitors as to secure
a practical monopoly. The reward, therefore, did not, as a rule, go to
the men who, on the ground of the public service rendered by them, were
intended to receive it. As to the second point—that the reward might be
great and the public service very small—that had been dwelt upon by the
honourable and learned gentleman opposite, and little need be added to
what had been said by him. The merit and novelty of the invention might
in many cases be almost nothing, and, yet however obvious it might be,
however much it might lie, so to speak, in the high road of discovery, if
it applied to any article of general use, the pecuniary reward derived
from it might be absolutely out of proportion to the novelty or value of
the invention. It would be easy to give instances, but he apprehended
that the fact was familiar to every one who had studied this question.
Then, with regard to the injury to third parties, it commonly happened
that half-a-dozen men who were competing in the same line of business
were upon the track of the same discovery. Each of these half-a-dozen
men would probably have hit upon the invention which was wanted,
independently and without communication with the other. But the first who
hit upon it, and who took out a Patent for it, was thereby entitled to
exclude the general public and competitors from the use of that which,
if he had never existed, they would probably have hit upon within a few
weeks. A and B reached the same point, one a week or a fortnight before
the other, and A became entitled, by the mere accident of such priority,
to exclude B from a process which, a little later on, B would have hit
upon for himself. Another case was that where the successful working of
a process depended not upon one, but upon several successive inventions.
The first two or three, not leading to any immediate practical result,
might not have been thought worth patenting. The last link in the chain
gave to the whole their commercial value, and it was the person who
took out the Patent for the last invention who got the benefit of the
whole, yet it might not be the most important invention in the series.
He would say nothing of the inconvenience and prejudice to manufacturers
in general. That was obvious enough, and the question was whether there
was any counterbalancing advantage. These were the considerations which
led him to the conclusion that it was impossible to defend our system
of Patent-Law as it stood. At the same time, he did not at all disguise
from the House that there were certain inconveniences and difficulties
in the way of abolishing Patents altogether. You had to guard, in the
first place, against the danger of encouraging inventors to keep their
discoveries entirely to themselves. In some branches of business, no
doubt, that would be possible, and the obvious effect might be to shut
out the public, for a much longer period than would be the case if
Patents were allowed, from the use of some valuable invention. Then it
had been suggested by the honourable member who raised this debate that
there might be a system of State rewards for the encouragement of really
meritorious inventions. Without putting an absolute negative on that
plan, he must observe that it was one which could only be established at
great cost, and it would be a very difficult thing to apportion among
inventors the rewards to which they might think themselves entitled. The
distribution of the rewards would give rise to endless complaints, and
would occasion, however unjustly, suspicions of jobbing and partiality.
With regard to the suggestion thrown out by the honourable and learned
gentleman, of the possibility of granting Patents, not as a right, but as
matters of discretion only in certain limited and important cases, the
Select Committee considered that point, and he was bound to say that the
difficulty of carrying it out appeared to his mind almost insuperable.
There would be found great difficulty in drawing the line, and it would
not be an easy matter for any one to exercise so large a discretionary
power as to decide to what inventions Patents should or not be granted.
He did not know what tribunal would be fit to exercise so great an
authority, and he was sure that none would be able to exercise it in a
manner to give satisfaction to the public. The most fit persons to decide
in such a case would be the first to see the difficulty of deciding on
any intelligible principle, and would on that ground decline to undertake
the duty. Under these circumstances it appeared that they were landed in
a position of great embarrassment. He was convinced that the Patent-Laws
did more harm than good, and if called on to say aye or no as to their
continuance, he should certainly give his vote against them; but, as this
was a matter which required particularly careful handling, he should be
content to leave the question in the hands of the Government, and he
thought it was well worth consideration whether they could not, starting
on the ground that the abolition of the Patent-Laws, wholly or partially,
was desirable, institute some inquiry with the view of discovering, if
possible, the best substitute for them in certain cases.
PATENT RIGHT.
_Paper by Mr. J. Stirling, Presented to the Glasgow Chamber of Commerce,
and published by permission._
First: Patent-right cannot be defended on the ground of justice.
The object of a Patent-Law is to establish a “property in ideas:”
but this involves the double fallacy that thought can and should be
appropriated. The end of all law is to ensure the universal freedom of
human action. Hence the law of property secures to every man the product
of his own labour. It gives to each an exclusive right to the material
embodiment of his productive energy, to be possessed or alienated by him
at will. But in so doing it leaves unrestricted the productive energy of
every other man. The freedom of one (as represented by his property) is
thus consistent with the freedom of all.
But thought cannot be appropriated. In thought there is no material
product to be made the object of a proprietary right. There is no
“thing” to be possessed or alienated. The law can only, therefore, give
the exclusive use of an idea to one person by injuriously limiting the
intellectual activity of all others. A Patent-right, therefore, is less a
“property in ideas” than a monopoly of thought.
Again, a true right of property is universal in its application; it
extends to the products of all industry, however humble. But it is
instinctively felt, that a proprietary right applied to every individual
idea would be essentially absurd. Patent-Law, therefore, is essentially
partial in its application. It picks out certain favourite ideas, and
confers on them an anomalous and oppressive privilege. There seems no
good reason why the ideas of inventors should be especially favoured.
An invention is a means to a special end, and should be recompensed by
him who has the end in view. If any ideas deserve a public recompense,
it is those general ideas whose application is of universal utility. But
Patent-Law ignores the discoverer of general ideas, and while conferring
rewards, at the expense of the community, on empty schemers and puffing
tradesmen, it passes over the services of a Newton or an Adam Smith. The
law of Copyright, indeed, gives to the philosopher a right of property in
his published and material works, but it leaves (most justly) his ideas
to be used and elaborated by whoso can and will.
Again, Patent-Law is founded on a conventional, not a natural, right.
It is not, like the ordinary law of property, based on an universal
intuition of the human conscience, but it is one of those laws by
which unwise legislators have striven so long and so vainly to give
an artificial stimulus to human industry. Hence the arbitrary nature
of its enactments. The ordinary right of property is unlimited in its
duration—passing from generation to generation. But common sense revolts,
instinctively, against a perpetual monopoly of thought. A Patent-Law,
therefore, can never be more than a weak compromise with principle—the
legislator undertaking to secure to the patentee his ideal property
during the biblical term of seven or fourteen years. Now, if the inventor
have a right at all, he has a right to more than this. To cut down a real
and acknowledged right of property to seven, or even fourteen, years were
a grievous wrong. Patent-right goes too far, or not far enough. Either a
Patent is no right at all, or it is a right for all time. If ill-founded,
it is a robbery of the public; if well-founded, of the patentee.