Patent-right should be respected, since it only assures property in
invention in the interest of him to whom the community is debtor. M.
Michel Chevalier sees in this argument only a semblance of the truth. We
must first inquire whether an idea may really constitute an individual
property—that is, exclusive personal property. This pretension is more
than broached. A field or a house, a coat, a loaf, a bank-note, or credit
opened at a banker’s, readily comply with individual appropriation,
and can hardly even be otherwise conceived of; they must belong to an
individual or to a certain fixed number of persons; but an idea may
belong to any number of persons—it is even of the essence of an idea that
once enunciated, it belongs to every one.
Besides, is it certain that the greater part of patentees have had an
idea of their own, and that they have discovered anything which deserves
this name? Of the great majority of patentees this may be doubted, for
various reasons.
The law does not impose on the individual who applies for a Patent the
obligation of proving that he is really the inventor. Whoever has taken
out a Patent may very easily turn it against the real inventor; this has
occurred more than once.
Besides, the law lays it down as a principle that it is not an idea that
is patented, and constitutes the invention valid; and thus it excludes
from the benefit of patenting the _savants_ who make the discoveries, of
which Patents are only the application.
It is by the advancement of human knowledge that manufactures are
perfected, and the advancement of human knowledge is due to _savants_.
These are the men prolific in ideas; it is they who ought to be rewarded,
if it were possible, and not the patentees, who are most frequently only
their plagiarists.
M. Michel Chevalier does not desire systematically to depreciate
patentees. Among them there are certainly many honourable men. The
inventions, real or pretended, which they have patented are supposed to
be new and ingenious uses or arrangements [dispositions], by help of
which we put in practice some one or more specialities of manufacture;
true discoveries are always due to the _savants_. But in general these
arrangements, represented as new, have no novelty.
In the detailed treatises on Mechanics, Physics, and Chemistry, in books
of technology, with their accompanying illustrations, such as are now
published, we find an indefinite quantity of combinations of elementary
apparatus, especially of mechanical arrangements, and very often the work
of professional patentees consists in searching through these so numerous
collections for uses and arrangements, which they combine and group.
What right of property is there in all this, at least in the greater
number of cases?
Against the pretended right of property alleged by the defenders of
Patents there will be much more to say. There exists in the greater
number of cases much uncertainty about the inventors, even when true and
important discoveries are in question. Is it known with certainty who
invented the steam-engine, who invented the aniline dyes, or photography,
even? Different nations are at variance on these points, as formerly
they were on the birthplace of Homer. The fact is, that the majority of
inventions are due to the combined working [_collaboration_] of many men
separated by space, separated by great intervals of time.
On this subject M. Michel Chevalier repeats what he heard from an eminent
man who was Minister of Finance at the time when Daguerre received the
national recompense which had been awarded him with the acclamations
of all France. One of the Government clerks brought to this eminent
personage proof that he too had made the same invention; and also there
were the labours of M. Niepce de Saint Victor, analogous to those of M.
Daguerre.
[M. Passy, the chairman of the meeting, confirmed the statement of M.
Michel Chevalier on this fact.]
M. Michel Chevalier, in continuation, remarked that in our time
industrial arts are subject to great changes in the details of their
operations.
Independently of the general alterations which from time to time
completely change the face of any given manufacture, there is no
important workshop where some useful notion is not occasionally suggested
by some mechanic or overseer, which leads to minor improvements [_un
perfectionnement de détail_]. It would be an abuse to grant, during a
term of fifteen years, or even a much shorter, exclusive use of any
particular improvements to any single individual. It would not be just,
for it is quite possible that the idea might have occurred to another
at the same time, or that it might occur the next day. It would even be
against the general interest, for it would fetter competition, which is
the chief motor in the progress of the useful arts.
But it is said inventors are useful to society; we must therefore
recompense them. To this M. Michel Chevalier answers that it may be
too liberal to confer the flattering title of inventor on men who,
when a veritable discovery has been made by _savants_, push themselves
forward to appropriate the profits, in securing by Patents the various
special applications which may be made of it. Besides, there are
different sorts of recompenses; there are other than material rewards,
and these are not the least coveted. The _savants_ who are the greatest
discoverers are satisfied with these immaterial rewards—honour, glory,
and reputation. The example is worthy of recommendation; not but it is
quite allowable for a man to extract from his labour [_travaux_] whatever
material recompense he can. But, in many cases at least, the Patent is
not necessary for this purpose. The authors of some useful discovery
would often have the resource of keeping their secret and working the
invention themselves. That would last for a time. Even under the system
of Patents several inventors have thus sought and found an adequate
remuneration.
Thus the famous Prussian steel manufacturer, M. Krupp, has taken out no
Patent, and yet has made a colossal fortune; also M. Guimet, of Lyons,
inventor of French blue. Their secret remained in their own hands for
more than fifteen years, the maximum duration that their Patent would
have had in France.
Lastly, in the case of some truly great discovery it would be natural to
award a national recompense to the inventor. If James Watt, for instance,
had received from the British Parliament a handsome sum, every one would
have applauded it. These rewards would not impoverish the Treasury, since
similar cases are of rare occurrence.
In recapitulation, Patent-right may have been allowable in the pasts
when science and manufactures had not yet formed so close and intimate
a union. It was advisable to attract towards manufactures, by means of
exceptional inducements, the attention of those who made a study of the
sciences. But now that the union is consummated, Patent-right has ceased
to be a useful auxiliary to industry. It is become, instead, a cause
of embarrassment and an obstruction to progress. The time is come to
renounce it.
Another speaker at the meeting, M. PAUL COQ, thought that, on a question
so delicate and controverted history furnishes instruction which directs
to a right solution. Notably Franklin, a genius eminently practical,
declared himself unwilling to avail himself, as to his numerous
discoveries, of any Patent. The refusal of this great man is founded upon
the principle that every one receives during his whole life ideas and
discoveries from the common fund of knowledge by which all profit, and
therefore ought, by reciprocation, to let the public freely benefit by
every invention of his. This, with Franklin, was not a mere sentimental
truth, but a practical conviction, based upon reasons worthy of the
author of “Poor Richard.” There is in the bosom of society a constant
exchange of beneficial thoughts and services. Every one stimulated by the
efforts of others ought, in the spirit of equity, to make the community
participants of the improvements and useful applications for which he
has in a manner received payment in advance. On this system, equality,
competition, and freedom of industry find their account in the law of
reciprocity; whereas, on the footing of privilege established and defined
by the theory of Patents, there is created an artificial property, along
side of that rightful property which has in it nothing arbitrary or
conventional, and depends simply for its existence on civil law. These
circles, thereby traced round the inventor and his discovery, are so many
hindrances and so many obstacles to the expansion of forces, in the way
of continuous progress. Under pretext of maintaining individual rights,
improvement is in reality paralysed by superimposed difficulties, and
especially litigation without end, on account of which nobody dare touch,
either far or near, what has been appropriated. The numerous actions
at law, raised with a view to ascertain whether such and such a process
constitutes a perfectionation, a new application, or merely an imitation,
are my proof. There is another proof in the distinction attempted to be
made between matters patentable and methods scientific which may not be
patented. All this, as it affects progress, the free expansion of forces,
is infinitely grave. Franklin has found for his precepts, already alluded
to, more than one adept pupil. One modest _savant_, whose name deserves
to be better known among us for his numerous services rendered to science
as well as to the arts—Conté—honoured to replace in France the pencils
of England, the importation of which was not possible in time of war—not
only supplied by his new process the want of plumbago with success, but
made it better than the English. To him are due, besides black-lead
pencils, which make his name celebrated, the crayons of various colours,
which have been so serviceable in the arts of design. Well, like
Franklin, he presented his process to industry, and contented himself
with being first in the new manufacture. It must be remarked that he who
thus opens the way easily maintains the first rank which the date of his
invention assigns him, and which public confidence assures him....
Before concluding, M. Paul Coq adverted to the distinction between
the right of property generated by a creation of a work of art or of
literature, and factitious property decreed in the interests of industry.
The skilful painter, who should copy faithfully line for line, tint for
tint, a _chef d’œuvre_ like the picture of Ingres, which every one knows,
“The Source,” in order to expose it for sale and pocket the advantages,
not merely lays hold of the property of a great artist who lives by the
fruit of his talent, but perpetrates, in all points of view, an action
mean and vile. To inventions in the domain of the useful arts, processes
and operations do not carry the stamp of personality, which is the glory
of the artist and author, and which of itself constitutes a protection
equal to that which protects right of property.
The invention is something _impersonal_, like a service rendered and
returned, which is not exchanged or paid by services of equivalent
weight and description. There is, therefore, no plausible objection
to maintaining unimpaired the common right, which, by its freedom of
movements, its equality, and its reciprocations, alone efficaciously
favours the result of which these are the indispensable corollaries.
EXPERIENCE IN FRANCE.
_The following observations were published in the AVENIR COMMERCIAL,
November 1, 1862, and June 28, 1863, have been kindly translated and
presented by the Author_:—
THE RESULTS OF A BAD LAW.
I.
When you walk along a public road, if you find a watch, a diamond, a
note of a hundred or a thousand francs, and, far from seeking the owner
to give it back, you apply it to your own use, moral law and civil law
take hold of you and condemn you without hesitation. It matters not
whether he who lost what you found be rich or poor, his carelessness, his
negligence, or the accident that caused his loss, give you no sort of
right to use it and make it yours.
There are not two opinions on that point: the laws of all countries
condemn the man who enriches himself with what chance throws in his way.
But if a scientific man—seeking some impossible discovery, finds a clue
to an idea—meets with an interesting phenomenon—indicates, in some way,
new properties belonging to some bodies—announces the results of some new
chemical combination—it is only a scientific research. This or that other
skimmer of inventions can get a Patent for the application of the idea,
of the discovery, of the method; and the law guarantees his pretended
right not only against all reclamations of the scientific man who has
discovered the whole, but against the whole world, deprived of all
possibility of making use of the discoveries of science!
And not only the law forbids every one to use this or that produce,
except if made by the patentee, but it also prohibits the use of any
similar produce made by different means.
Then, to prevent all inventors to approach the ground that the patentee
has chosen, he takes immense care to have his Patent made of formulas so
wide and elastic, that all inventions in the same course of ideas will be
infringements in the eye of the law.
To these observations it is answered that industrialists or scientific
men are equal before the law, that all have an equal right to its
protection, but on the express condition that the invention be put in use.
We see very well where is the privilege of the chance patentee, who has
made the discovery of the scientific man his own, but we do not see where
is its justice or equality.
We see very well where is the privilege of the man who has had nothing to
do but to apply the idea deposited in a book by a scientific man—an idea
that, in fact, was at the disposal of the public, since the discoverer
did not claim its proprietorship; but we do not see why the law gives a
monopoly to him who has only borrowed that idea.
But we are told, the law is quite equitable, for it, says, “To every man
his due. The scientific man discovers a body, glory be to him. If he
will add to it some profit, let him indicate the properties that may be
used industrially, and let him take a Patent for his discovery. But he
must hurry, because if industry forestalls him, industry will get the
profit.”[6] It is exactly as if this was the law: A millionaire drops a
100-franc note. It will not make him much poorer. If he wants to get it
back, let him return where he came from and seek along the road. Let him
hurry, for if this note is found, he who will have got it may keep it.
Common sense and equity would join to say that when a scientific man
indicates a discovery or an invention, that invention or discovery
remains at the disposal of every one if the finder does not claim the
exclusive right to work it. But the law is different, and the results are
soon made apparent.
In 1856 an English chemist, of the name of Perkins, was seeking the
way to make artificial quinine. In the course of his experiments he
discovered in the laboratory of M. Hofmann the property residing in
aniline of producing a violet colour by the action of bi-chromate of
potass.
Perkins got a Patent for this discovery. The attention of the scientific
and industrial classes being called to this property of aniline, and to
the possibility of extracting from it divers colouring matters, several
French and other chemists and manufacturers got Patents for many more new
processes.
In 1858, Hofmann, continuing to study aniline, discovered the red colour.
He sent a memoir to our Académie des Sciences, in which he gave the exact
method to produce this magnificent crimson red.
Hofmann took no Patent; it seemed as if he wanted to present gratuitously
to tinctorial industry a new and beautiful produce.
Six months after, a manufacturer, who as early as 1857 had tried to
get patented in France the patented discovery of Perkins, sold to a
manufacturer of chemical produce a process copied from the discovery
of Hofmann, by which the red of aniline could be manufactured by the
reaction of the bi-chloride of tin. The Patent was granted, and the
produce manufactured. But very soon after, in France and abroad, more
advantageous and more scientific methods, preferable to the patented one,
were found.
All the French manufacturers who tried to use any of these new processes
were prosecuted and condemned for infringement on the right of the
patentee. It then followed that one kilogramme of red of aniline was sold
abroad for £12, and the monopolisers sold it for £40 in France.
This could not last, particularly after the treaty of commerce, by which
printed and dyed goods could be introduced. Manufacturers threatened to
give up work, and the patentee thought proper to reduce his prices.
But another result, no less fatal to French interests, soon followed.
The most intelligent manufacturers of colouring-stuffs, those who were
at the head of that branch of industry, and had concentrated in Paris,
Lyons, and Mulhouse the fabrication of the finest and most delicate dyes
for the home and foreign market, went to establish new factories across
the frontiers.
The existing Patent prevented them from satisfying the demands of their
customers abroad, who required some aniline colours, and they were
obliged to carry their industry to foreign parts.
The following is the list of the manufacturers who have founded new
establishments beyond the reach of the monopolising Patent:—
A. Schlumberger, of Mulhouse, new factory at Bâle (Switzerland); Jean
Feer, of Strasburg, new factory at Bâle; Peterson and Seikler, of Saint
Denis, new factory at Bâle; Poirrier and Chappal, of Paris, new factory
at Zurich; Monnet and Dury, of Lyons, new factory at Geneve.
Five other establishments, raised by Swiss people but under the direction
of Frenchmen, are being founded at Bâle, Zurich, Glaris, and Saint Gall.
Then there are still to be founded, the factory of M. A. Wurtz, brother
to Professor Wurtz at Leipsic; another, by M. O. Meister at Chemnitz; a
French factory at Elberfeld; three, also French, in Belgium; and three
others in Switzerland.
It is, in fact, a general expatriation, like the one that followed the
revocation of the Edict of Nantes. It is worthy of remark that in Germany
there are twelve Patents for making colours or dyes from aniline; in
England there are fourteen, in France (thanks to the interpretation given
to the law) there is _one_. “_Et nunc caveant consules._”
T. N. BENARD.
[6] Extract of a paper on the subject in the _Propriété Industrielle_.
II.
In our number of November 1, 1862, we published on this very same
question an article in which we stated that about twenty French
manufacturers had been forced to go abroad to escape the unheard-of
exigencies of the law of Patents. We were answered by insults that we
disdained; but the facts that we had revealed were not contested.
A volume just published on the legislation and the jurisprudence of the
law of Patents enables us to show another side of the question, and
to prove how injurious it is to manufacturers and inventors, and how
profitable to certain gentlemen of the Bar who have the speciality of
cases for infringement on Patents. We say it openly and fearlessly, if
it was not for the lawyers who swim freely amongst the windings of that
law, it would not have a supporter. Manufacturers and inventors are
shamelessly made a prey to a group of pleaders who defend right and wrong
with the same deplorable alacrity.
What an immense number of law-suits have arisen from the 54 articles of
that law! The volume we have in hand has been written with the intention
of giving to the public a view of the jurisprudence adopted by the Courts
in the interpretation of each paragraph. A summary of the trials that
have taken place since its promulgation in 1844 follows each article of
the law.
Article I. is as follows: “Every new discovery or invention, in all kinds
of industry, ensures to its author, under the conditions and for the
time hereafter determined, the exclusive right to work for his benefit
the said discovery or invention. This right is established by documents
granted by the Government, and called Patents.”
The first trial that we find in the list took place in 1844. The question
was, Whether the words _all kinds of industry_ could be applied to things
that are not in trade? The Court’s decision was for the affirmative.
The second trial was raised to know if, when a working man is only
executing the orders given to him by another party, with the indications
and in the interest of this last, the working man may be reputed the
inventor, and if the results of his labour may have the character of an
invention, so that he may claim [revendicate] its ownership by a Patent.
The Court decided for the negative.
We pass four other suits running on the interpretation of this first
article, that seems so innocent, so inoffensive, and come to the
eleventh trial. In conferring by Article I., under the conditions that
it determines, on the author of new discoveries or inventions the right
of working them exclusively for his own benefit, did the law intend to
deprive of all rights those who were using the same means of fabrication
prior to the delivery of the Patents? The question was, in other terms,
to know whether the Patent is good and legal against every one except
against the party who, having worked it for a certain period anterior to
the granting of the Patent, might be kept in possession of his industry?
On March 30, 1849, the Court of Cassation decided for the affirmative in
the case of “Witz Meunier _versus_ Godefroy Muller.” You fancy, perhaps,
that the affair is all right and settled; the Court of Cassation has
spoken, and every inventor who will not have taken a Patent may work out
his invention without fear of prosecution from a patentee coming long
after. You are greatly mistaken. You do not know how keen, and ardent,
and clever, and anxious are the seekers of Patents. Previously to that
the Court Royal of Paris had declared in May, 1847, in the case of
“Lejeune _versus_ Parvilley,” that the Patent can be put in force against
the manufacturer working the invention before it was patented, if he has
not published it before the patentee, and if the patentee is the first
who has introduced it in commerce. But in 1847 the Court Royal of Paris
did not know the opinion given in 1849 by the Court of Cassation. We see
how unsafe are the things of this world. Say if you can ever be sure of
holding and knowing the truth.
On August 19, 1853, the same question was brought again before the
Court of Cassation in the case of “Thomas Laurent _versus_ Riant,” and
the Court decided that the Patent can be put in force against whoever
possessed the invention before it was patented. There is at Lyons a
manufacturer who for a great many years fabricated a dye for which he
has not taken a Patent, but the secret of which he carefully keeps to
himself. If, by some manœuvring, by some doubtfully moral means, an
industrialist—as there are too many amongst the patentees—contrived
to worm out this secret, and got a legal Patent, he could work the
discovery and oblige the Lyonese manufacturer to cease all productions
of the same kind. Would it not be an admirable example of legality?
The contradiction that we have just noted between two verdicts given by
the same Court upon the same question gives us the right to say that the
magistrates ought to show a little more indulgence to those they condemn.
When there is a law like that relative to Patents, common mortals are
very excusable if they make a mistake in interpreting in a wrong way this
or that expression, since we see the highest Court in the country giving
sometimes one interpretation and sometimes another.
The first article of the law has given rise to fifteen different suits,
inscribed in the pages of the volume we hold. These fifteen suits have
been tried before the Civil Courts or the Court of Cassation. People may
well be frightened at the mountain of papers that must have been used and
destroyed by the attorneys, counsel, barristers, &c., before the public
could have any clear notion of what the legislators meant.