invention. The free exercise of thought is the common right of all.
Wherefore if A excogitate a principle to-day, and B, by independent
thought, excogitate the same principle to-morrow, both have an equal
right to benefit by the discovery; and A has no natural right to debar
B from the legitimate fruit of his intellectual effort. It may be even
that A had no real priority of thought, but was only more knowing, more
greedy, or was simply nearer to a patent office, and, though latest
in arriving at the idea, was the first to secure a legal monopoly of
its use. To found a right on such a race for priority is evidently
irrational. The simultaneousness of discoveries and inventions by
different minds, is a well-established fact in the history of science.
Certain facts and reasonings, all tending in a given direction, are
before the world. These act simultaneously on various minds, and produce
in each the same development of thought. Now, with what justice do we
pick out one of these many thinkers and give him a monopoly of the common
thought? Nor is the injustice confined to the original idea, of which
we grant a monopoly. By tying up one idea, we stop the whole course of
thought in a given direction, and thus interfere generally, and to an
indefinite extent, with the intellectual activity of other men.
The inventor benefits by the ideas of the community, and has, therefore,
no right to a special privilege for his idea. The universal thought of
mankind is a common good; all benefit by it freely, and all are bound
freely to contribute to it. Every thinker owes an incalculable debt to
society. The inventor has the benefit of all foregone human thought, of
all existing civilization. He has the unbought advantage of all laws,
all language, all philosophy. He has the free use of all the methods and
appliances, spiritual and material, which have been painfully elaborated
by the thinkers and workers of all time. Why, then, should he alone have
an exclusive privilege, in respect of the infinitesimal addition which he
may make to the work of ages?
Secondly: Patent-right cannot be justified on the lower ground of
expediency. The object of a Patent-Law, in the supposed interest of
the community, is to stimulate invention. But invention needs no
artificial stimulus. Nature has amply provided all needful and wholesome
encouragement, in the additional profit afforded by improved methods of
production. In the natural course of business, every producer is spurred
on by his material interests to invent for himself or to encourage
the inventions of others. The whole history of industrial progress is
an unceasing striving after improvement, with a view to profit. The
few thousand patented inventions are as nothing compared with the
innumerable improvements produced daily and hourly in the ordinary
course of business, with the vulgar view of gain. The best stimulus
to invention, therefore, will be found in the natural competition
of producers; but Patent-Law destroys this competition by an unjust
monopoly, and thus tends indirectly to weaken the natural impulse to
improvement.
Invention may be even over-stimulated. In all her arrangements, Nature
provides for a due equilibrium of powers and tendencies. Thus the various
faculties and temperaments of man—the sanguine and the cautious, the
speculative and the practical—are nicely balanced. The result, when
things are left to themselves, is a happy combination of ingenuity
and caution, and, as a consequence, a continuous but prudent course
of improvement. But if, by conventional rewards, we give a factitious
impulse to the inventive faculty, we destroy the natural equilibrium of
capacities, and foster a scheming, fanciful turn of mind, at the expense
of thoroughness and a patient working out of sound ideas. This result
has actually occurred in the United States, where the factitious value
attached to invention has tended to produce an almost total sacrifice of
solid workmanship to a flimsy ingenuity.
Patent-Law does not even attain its proposed end of quickening the
progress of real improvement; on the contrary, it is found in practice
seriously to hinder it, the monopoly granted to one inventor necessarily
obstructing the progress of every other. Hence, an eminent inventor
has lately said: “The advance of practical science is now grievously
obstructed by those very laws which were intended to encourage its
progress.” That Patents seriously obstruct the natural development of
ideas, is best seen by the sudden advance which usually follows the
expiry of important Patent-rights. The natural course of improvement,
dammed back by artificial obstruction during the continuance of the
Patent, is set free on its conclusion, and a new impulse is given to the
development of ideas and their practical application.
But the public is not the only sufferer by Patent-right. Without doubt
the heaviest evil falls on the patentee. The inventor is led to give
an excessive development to his talent, and is seduced into reliance
on a law that can give him no substantial protection. The difficulty
of defining original inventions is a practical bar to a satisfactory
Patent-Law. The whole history of Patents is a long-continued story of
litigation and disappointment; and the more admirable the invention, the
greater is the certainty of difficulty and loss. It must be a worthless
invention that the patentee is left to enjoy in peace. Whenever a Patent
is worth pirating, the inventor may depend on being involved in a maze
of litigation that disturbs his peace and ruins his fortunes. And the
more the Patent privilege is extended, the worse the evil becomes; the
intricacy and the multiplicity of details baffling every attempt to
define the rights of competing inventors.
At this moment the heaviest complaints against Patents come from our
great inventors. They repudiate the proffered privilege as “injurious
to inventors,” and complain of being “borne down by an excess of
protection.” As is natural, they who are most occupied with the
advancement of invention, feel most acutely the grievous obstructiveness
of the Patent-Law. Not enough that they have to battle with natural
difficulties; at every step they meet obstructions which a well-meaning
but perverse law places in their way. Nor do these obstructive privileges
confer any real advantage on the empty schemers whose monopoly they
establish: they merely give them the vexatious power of hindering the
progress of better men. The mere “pen-and-ink inventor” has neither
the energy, nor the perseverance, nor the practical ability to mature
his crude “idea;” but to this man the law awards the dog-in-the-manger
privilege of effectually obstructing the natural progress of practical
improvement.
These practical evils the advocates of Patent-Law do not deny; but
they attribute them to the defective execution of the law, not to its
vicious principle. Hence a never-ending cry, as in the case of all bad
laws, for more legislation, for more stringent regulation, for stricter
investigation, and more thorough registration of Patents. But no
tinkering at details can avail. The whole system is radically unsound;
and the only effectual remedy is to lay the axe to the root.
A sentimental plea in favour of Patent-right has been set up by some, on
the ground that the inventor—the man of thought, as he is called—must
be saved from the toils of the capitalist, ever ready to prey on his
superior intellect. This silly sentimentalism could only originate in an
utter ignorance of the relations which naturally subsist between capital
and talent. The capitalist is the natural ally of the inventor, whom
it is his interest to employ and encourage. It is a chief part of the
business of every producer to search out every one who can help him to
improved methods of production; and the remuneration which, in one shape
or another, it is the interest of the capitalist to offer to the really
clever inventor, will always form a surer and more substantial reward
than the delusive privilege of a legal monopoly. As to the complaints
we hear of neglected talent, we may safely conclude that they arise
more from the exaggerated pretensions of conceited schemers, than from
any obtuseness to their own interests on the part of practical men of
business, who refuse to profit by their inventions.
On the whole, Patent-Law seems a blunder, founded on the antiquated
notion of giving State encouragement to certain favoured modes of human
activity. It is no part of the duty of the State to stimulate or reward
invention; the true function of Government is to protect, not to direct,
the exercise of human energy. By securing perfect freedom to each
individual, we shall best provide for the progress of the community; nor
can any law be conceived more detrimental to the common weal than one
which lays restrictions on perfect freedom of thought.
ARE INVENTIONS PROPERTY?
BY M. T. N. BENARD, EDITOR OF THE “JOURNAL DES ECONOMISTES,” JULY, 1868.
(_Translated and Reprinted by his obliging consent._)
In the number of the _Journal des Economistes_ for last December there
appeared a very conscientious paper on “Property in Inventions,” by our
learned colleague, M. le Hardy de Beaulieu. We would have preferred that
some master of the science had published an answer to this article, which
it seems to us is based on a wrong principle, and that he had given to
the readers of this journal the opposite view of those ideas so ably set
forth by the honourable Professor of Political Economy at the Belgian
“Musée de l’Industrie.”
We believe that this question has acquired sufficient importance and
reality to merit being fully argued and cleared up; and, no other having
taken up the pen in answer, we shall endeavour to set forth the principle
which alone appears to us true and admittable.
We throw out these ideas for discussion, hoping that the subject will be
taken up by one of our masters in the science, and that this great debate
will be carried out in a manner suitable to the imperishable doctrines of
justice and equity, which form the basis of political economy.
I.
“The man who first made a hut,” says M. le Hardy de Beaulieu, “a piece
of furniture, a cloak, or some necessary of life, would no doubt have
thereby excited the envy of his neighbours, and he would frequently
have been deprived of these objects by violence or by strategy, before
it would be generally allowed that they ought to belong to him who made
them, and that it was at once the duty and the interest of the community
to guarantee him their possession against every attack.”
We acknowledge that the man who first constructed a hut was perfectly
right in making good his claim against those who would have deprived
him of it, and that he was justified in vindicating his claim by force.
He had employed his time and strength in building this hut; it was
undoubtedly his, and his neighbours acted up to their natural right and
in their own interests in helping him to oppose the intruder. But there
ended both the right of the individual and that of the community.
If this first man, not content with claiming his hut, had pretended
that the idea of building it belonged exclusively to him, and that
consequently no other human being had a right to build a similar one, the
neighbours would have revolted against so monstrous a pretension, and
would never have allowed so mischievous an extension of the right which
he had in the produce of his labour.
Nevertheless, this man had exercised imagination and combination; he
had invented the shape, the size, and the arrangement of the whole
structure; he was the first to conceive—probably after many efforts
of mind and thought, after long study, after observations made on the
nests of birds and the hut of the beaver—that pile of branches, of dead
wood, of leaves and of stones, of which its shelter is formed. He was
an inventor of the first class. How is it, then, that the sentiment of
justice which prompted him to claim his property did not prompt him at
the same time to claim exclusive possession in the idea, the result of a
long train of reflection? How is it that the same sentiment of justice
which induced his neighbours, the community, to lend him armed force
to preserve for him the possession of his hut, did not go so far as to
grant him a property in his idea? No one dreamed of asking him for the
permission to imitate what he had made; no one thought he was committing
a crime, or doing him a wrong, in making a copy of his hut.
Property can be a right only when its principles tend to the general
good and are useful in advancing the interests of the human race. And
if, in our day, imitation of an invention is not generally considered as
guilty an act as robbery of tangible property, it is because every one
understands the difference between an idea and a thing made or done.
The inventor of a particular weapon, or certain furnishings, or tools,
had all possible rights in the constructing and possession of these
weapons, furnishings, or tools; but these rights could not be extended
to the hindering of his neighbours from making tools, furnishings, or
weapons, in every way similar. If the community had admitted an exclusive
right in these inventions, it would have died in its germ, civilization
would have been a dead letter, and man would have been unable to fulfil
his destiny.
Thus far, then, there was not, nor could be in principle, any question
of exclusive right of invention. This right was only thought of when
all notions of social right had been obscured by laws which, like that
of Henry II., declared that the right of labour belonged to the Crown,
and when there had grown up the idea of licensing labour and granting
exclusive privileges for its exercise. The institution of the pretended
property in inventions was a retaliation against the suppression of the
abusive right of masterships and corporations.
II.
Doubtless invention, as M. le Hardy de Beaulieu remarks, consists in
the discovery of a new scientific principle; but we cannot admit, with
the learned Professor, that the new application of a principle already
known, that the discovery of a natural agent hitherto unknown, or of new
properties or other modes of action of natural agents, or of materials
previously discovered, are inventions.
It is probable that coal was known long before any one thought of putting
it in a stove to be used as fuel. It is certain that stone was known long
before any one thought of employing it in the construction of walls.
To pretend that the discovery of the combustible quality of coal, or
of the use to which stone might be put, gave a right to the discoverer
to exact from his neighbours the payment of a royalty before employing
this fuel, or this material for construction, is also to grant that he
who, centuries before, had thought of burning wood to warm himself, or
of seeking the shelter of a cave, ought also to be recompensed for the
trouble he had in discovering, appropriating, and working out either this
source of heat or this means of shelter.
Invention, we acknowledge, consists in the discovery of a new scientific
principle; it can often place, as M. le Hardy de Beaulieu says, new
gratuitous forces at the disposal of the community; but does it follow
that the inventor has an exclusive right in the property of this
discovery? We think not. The inventor of the compass, whoever he was, has
rendered an immense service to the community; but could his invention be
claimed as private property? Does it not, on the contrary, enter with
perfect justice into the public domain?
Napier, the discoverer of logarithms, has rendered the most signal
service to calculators and navigators; but can his invention, the
knowledge of which may, either orally or by the printing-press, be
extended indefinitely—which any one may use privately, in the quiet of
the study—be put upon the same footing as landed property, which a single
man may cultivate—as house property, which may belong to one or several,
and which cannot be seized upon without its being observed, and to the
great scandal of all? Evidently not.
And if the law has never tried to appropriate inventions of this class,
it is because there must be something tangible, limited, and final,
giving the power to regulate its employment or possession.
It is not correct to say, besides, that the inventor does not deprive
the community of any portion of the common property which it possessed
before the invention. Before the invention the thing discovered existed
in embryo—in nature. This germ was multiple; it existed as frequently as
there were men; and the inventor pretends, by the property in it which he
claims, to deny it to all others and to hinder its germination.
The right of the inventor is limited to that of working out his idea; it
is identical with that of a man who has discovered and cleared a field;
but it is not, like his, exclusive. He who invents and he who clears can
possess their property as long as they like and as they like; but there
is this difference between the field and the invention: the first can be
cultivated only by one without doing an injury to the proprietor, while
the invention may be used by several without hindering, diminishing, or
suppressing the working of it by the inventor.
I have cleared a field, and cultivate it; if one of my neighbours desires
also to cultivate the same field, he hinders me from exercising my
right—he interferes with my working—he dispossesses me.
I have discovered the combustible nature of coal: in what way does my
neighbour, who cooks his food on a coal fire, hinder me from exercising
my right, or interfere with the working of my faculties? of what does he
dispossess me?
III.
We have not, as we think, to take into consideration more or less the
difficulties of inventors; we have not to inquire if every invention
requires a more than ordinary degree of intelligence, special knowledge,
great perseverance, &c. There is a multitude of occupations in life
which require all these qualities, but no one has ever pretended that on
account of these qualities, probable sources of success for them, they
had a right to any favours, immunities, or privileges.
The inventor of a useful discovery has quite as much, or more, chance of
making a fortune as the manufacturer who confines himself to the beaten
tracks, and only employs the known methods; this last has had quite as
much risk of being ruined as any searcher after discovery. We believe
that they are on an equality as to position; for if the inventor may be
ruined in not finding what he seeks, the manufacturer may see all his
looms or his machines rendered useless, all his outlets closed, by the
introduction of a cheaper means of production. Why make a golden bridge
for him who enters the arena with arms more subtle and more finely
tempered than those of his adversary?
Notice that the manufacturer also renders a service to the community—no
doubt in seeking his own profit; but is it not so with the inventor? Why
then demand a reward for the one which is not asked for the other?
The manufacturer who, in using the old looms, manages his factory so as
to reduce his prices by 10 or 20 per cent., and who in consequence can
furnish stockings (supposing him to be a stocking manufacturer) to a
number of those who were not rich enough to buy them at the old prices,
undoubtedly does a service to the community equal to that which it would
receive from the invention of a machine which would make the stockings 10
or 20 per cent. cheaper.
The farmer who by superior ploughing, more skilful manuring, or more
careful weeding, increases the yield from two to three quarters per
acre—does not he also render a signal service to the community?
The sailor, who finds the means of shortening voyages by utilising
certain currents or winds, in modifying the spread of his sails, &c.—does
not he increase the gratuitous natural forces placed at the disposal of
the community?
Why, then, if there is question of rewarding this class of services,
should they not ask for privileges, favours, and exclusive rights? Why
not go so far as forbid any one to arrange his factory on the plan of the
manufacturers of whom we have been speaking? Why not forbid any farmer
to weed, plough, or manure, like his neighbour; or any sailor to follow
the track of the first, without paying to those who gave the example a
previous and perpetual royalty?
IV.
“The property of an invention having required for its creation the same
labour as that of the soil, and this work offering less chance of success
and results of probable less duration, it is as legitimate at least as
landed property,” says M. le Hardy de Beaulieu; “and there is no argument
against it which may not be applied with equal force to the individual
and permanent occupation of the soil.”
The soil, to render all the productions that the community has a right
to expect from it, ought to become and remain a personal individual
property. Invention, on the other hand, cannot give all the results that
society can draw from it, unless it be public property.
Herein lies the immense and irreconcilable difference between property
in land and that of invention. Besides, land cannot become unfertile,
unproductive, or lose all its value as property, except by some
convulsion of nature which would deeply unsettle it. An invention, on the
contrary, may become quite valueless in ten years, one year, a fortnight
even, after being discovered, and that by the superiority of a subsequent
invention.
What becomes, then, of the property of this invention? What is its worth?
Has the inventor a right to damages?
If you construct near my field a factory from which escape noxious
vapours, hurtful to vegetation, and if I can show that you have
deteriorated or destroyed my crops, you, according to the laws of every
civilised nation, owe me damages; would you claim damages of the
inventor, whose discovery had rendered that of one of his predecessors
partially or completely unproductive? If property in invention is equal
to property in the soil, damages are incontestably due. We do not think
that a single advocate for this class of property has, however, dared to
carry his logic thus far.
The proprietor of a field may leave it uncultivated, the proprietor of a
house may leave it shut up as long as he likes; no law obliges to put in
a tenant, or to open it for lodgers. The laws of all countries contain,
with slight modifications, the following clause, quoted from Art. 32 of
the Law of 1844:—“Will be deprived of all his rights ... the patentee
who shall not have commenced the working of his discovery or invention
in France within two years, dating from the day of the signature of the
Patent, or who shall have ceased working it during two consecutive years,
unless that, in one or other case, he can satisfactorily explain the
causes of his inaction.”
It would be very easy for us to cite other differences in the nature
of these two classes of property; we shall only refer to one more,
which points out how solid is the property in land, and how uncertain
and ephemeral the so-called property of invention. Land, considered as
property, increases in value from day to day; there is no invention whose
value does not diminish daily.
M. le Hardy de Beaulieu further adds, that “the inventor, in taking
exclusive possession of his idea, harms no one, since he leaves all
which previously existed in the same condition in which he found it,
without in any way lessening the social capital on which he drew.” We
should require, however, to come to an understanding as to what may be
called the social capital; for if the exclusive property of invention had
existed from the germination of the idea which led to the construction
of the first hut to the making of the earliest weapons, tools, and
furniture, it is difficult to know where we should find it. By putting
property in invention on the same footing as property in the soil, all
that man uses or consumes would belong to the descendants of the first
inventors, and every one would require to pay a sort of rent for its
use. The inventor of the wheelbarrow would have to pay a royalty to the
inventor of wheels, and the maker of the plainest pump would pay an
annual rent to the inventor of the lever or piston; there would not,
there could not, be any social capital.
But it is wrong to say that the exclusive possession of an idea hurts no
one, because it leaves what previously existed in the same condition.
I, or my neighbour, might put together ideas to form the basis of an
invention; this faculty of combination belongs to each of us; with
exclusive possession it belongs only to one. It cannot be said, then,
that no one is hurt, and that everything remains in the same position.