or discoveries—the invention of new industrial produce; the invention
of new methods or the new application of known methods to obtain an
individual result or produce.” This article, we may say, is the main beam
of the edifice, consequently it has given occasion to no less than 104
suits. One might fancy that the multitude of judicial decisions given by
the Courts has thrown the most brilliant light on the interpretation to
be given to the three paragraphs forming the second article. Alas! these
paragraphs are just as obscure as before. For instance, the Imperial
Court of Paris decided on August 13, 1861, that the “change in the form
of a surgical instrument, even when there may result an advantage or
greater facility to the operator, cannot be patented.” But on July 26 of
the same year it had decided that “a production already known—a straw
mat, for instance—may be patented when its form, its size, and its length
are new.” So, again, the Court of Cassation decided, on February 9, 1862,
that “the production of a new industrial result is an invention that may
be patented, even if it is only due to a new combination in the form and
proportions of objects already known.” On the contrary, the Correctional
Court of the Seine decided on December 24, 1861, that a modification
of form, even when it procures an advantage, is not of a nature to
constitute a patentable invention. Can we not say with the poet:
“Deviner si tu peux, et choisis si tu l’oses?”
The lawyers of Great Britain are accustomed to celebrate certain
anniversaries by a professional dinner. The President of the party, after
having proposed the health of the Queen and the Royal Family, calls upon
his brethren to join in a toast to the prosperity of the profession
they follow. This traditional toast is characteristic enough. It is as
follows: “_The glorious uncertainty of the law!_” We think the facts we
have related give to this toast a right of citizenship on this side of
the Channel.
T. N. BENARD.
IMPORTANT MESSAGE FROM THE SECRETARY OF THE CONFEDERATION, COUNT VON
BISMARCK, TO THE NORTH GERMAN FEDERAL PARLIAMENT.
Berlin, December 10, 1868.
In the presence of the manifold and well-founded complaints concerning
the defective state of legislation on Patents in Prussia and Germany, the
Royal Prussian Government deems it important to have considered without
any further delay what course might best be adopted in the matter.
At the same time, however, and with a view to the position long since
taken by Government in regard to the question, it must not be omitted in
the first place to decide whether henceforth Patents should be granted
at all within the boundaries of the Confederation. The frequent polemics
on the principles of Patent-Laws, to which the repeated attempts at
reform have given birth during the last ten years, and more particularly
the discussions in the late German Federal Assembly, have enhanced the
questionability of the usefulness of Patents.
After taking the opinion of the Chambers of Commerce and the mercantile
corporations, the Prussian Government, on the occasion of the German
Federal Assembly Session of 31st December, 1863, gave utterance to the
doubt whether under present circumstances, Patents for inventions may
be considered either necessary or useful to industry. Since then the
Royal Prussian Government has taken the question once more into serious
consideration, and feels bound to answer it in the negative on the
strength of the following arguments.
From a theoretical point of view, it may be taken for granted that the
conferring of an exclusive right to profits which may be derived from
industrial inventions, is neither warranted by a natural claim on the
part of the inventor which should be protected by the State, nor is it
consequent upon general economical principles.
The right of prohibiting others from using certain industrial inventions,
or bringing certain resources and profitable means of production into
operation, constitutes an attack upon the inalienable right which every
man has, of applying each and every lawful advantage to the exercise of
his profession, which is the more obvious, as there exists a prevailing
tendency to free industrial pursuits from all artificial restrictions
adherent to them, and the time-honoured practice can only be upheld by
a thorough vindication and a practical proof of its fully answering the
purpose. To demonstrate this should be the chief aim of all arguments
against abolition.
To an argument which has repeatedly been urged—_i.e._, that the granting
a temporary exclusive right is indispensable (so as to secure for the
meritorious inventor a reward adequate to the mental labour and money
expended, as well as risk incurred, in order that there be no lack of
encouragement to the inventive genius)—the objection may be raised
that the remarkably developed system of communication and conveyance
now-a-days, which has opened a wide field to real merit, and enables
industrial men promptly to reap all benefit of production by means of
enlarged outlets for their articles, will, generally speaking, bring
those who know how to avail themselves before others of useful inventions
to such an extent ahead of their competitors, that, even where no
permanent privilege is longer admissible, they will make sure of a
temporary extra profit, in proportion to the service rendered to the
public.
It is, in fact, in the peculiar advantage produced by the early
bringing into operation of a fresh suggestion of their minds, that the
remuneration of those lies, who, through cleverness and steadiness of
purpose, succeed in satisfying existing wants in a manner less expensive
and superior to what previously was the case, and notwithstanding do not
obtain any monopoly. Not of less account are the practical impediments
which stand in the way of every effort to bring about an improvement of
the Patent-Law.
It is generally admitted by the promoters of Patent-right, that the
system of inquiry or examination, as it is now working in Prussia, cannot
possibly remain in its present condition, and the experienced officers
appointed to decide upon Patent matters and make the necessary inquiries,
unanimously confirm that opinion. Though provided with relatively
excellent means of ascertaining, the Prussian Technical Committee for
Industry had to acknowledge as early as 1853 (_Vide_ Prussian Trade
Archives of 1854, Vol. ii., page 173, ff.) that the question whether
an invention submitted for being patented might not perchance already
have been made or brought into operation elsewhere, was almost an
unsolvable one. Since then, inventions have augmented yearly in steadily
increasing proportion. The main difficulty, however, not only rests
in the impossibility of mastering the matter submitted, but equally
so with the upholding of firm principles relating to the criterion of
originality. If the inquiry do not altogether deviate from its primitive
object by patenting any and every innovation in construction, form,
or execution, which is presented, we fall into such uncertainty when
sifting actual inventions from the mass of things which are not to be
considered as undeniable improvements—owing to the continually increasing
and diversified combinations of generally known elements or material and
altered constructions or modes of application—that it is hardly possible
not to be occasionally chargeable with injustice. Every day shows more
clearly how annoying a responsibility grows out of such a state of
affairs, and it is highly desirable that the authorities no longer be
conscious of doing injustice in their duties on account of rules which
cannot properly be put into practice.
As for the often much-commended so-called “application system,” it
would by no means really answer the purpose; even without considering
the theoretical objections which might be raised against it. Its
practical results have been far from giving satisfaction wherever it
has been adopted. The complaints of the abuses and impediments industry
suffers under, and which are brought about through the overwhelming
mass of Patents, for the most part taken out with a view to swindling
speculation, the unpleasant experience acquired by those who take all
legal means so as subsequently to contest and defend Patents granted
without previous inquiry being made, have led to a reaction of public
opinion in favour of abolishing the system.
The unsatisfactory and quite abnormal state of all matters connected with
Patents in England and France had, years ago, claimed the most earnest
attention of the legislators, and led to practical deliberations on the
necessity and the means of effective improvements. The French Government
introduced a Bill in 1858, to the effect that the hearing of objections
to Patents applied for might, as much as possible, take place previous
to the same being granted. A similar system which is in force in England
has, however, proved inadequate in that country, and the commission
which, in 1863, made a detailed statement as to the merits of the
existing Patent-Law, recommended the adoption of official inquiry.
Under the circumstances, it can hardly be the question at all, for the
North German Confederation, to admit of the mere “application system.”
Nor can the imposition of high taxes [on patentees?] (not taking
into account their inconsistency with the real object of Patents) be
considered a sufficient corrective of the system, after the experience
acquired in England on this head.
Both the inquiry and application systems having proved defective, the
conclusion is arrived at, that the difficulties cannot be overcome
by means of altering certain details in the institution, but rather
arise out of constitutional infirmities of the institution itself. The
Patent system makes such distinctions necessary as are now practically
inadmissible, and the impracticability of which is by no means removed
through merely transferring the evil from one side to the other. It
must be granted that if artificial contrivances be at all required to
adequately remunerate an inventor for the services rendered to society,
they cannot be hit upon in this direction without hurting all important
interests.
That the final step of repealing Patents altogether should not yet have
been taken anywhere, in spite of the leading theoretical and practical
authorities having urged it, may be easily explained by the fact that we
have to deal with an institution which very long ago has taken root in
the usage of the industrial nations, and to which tradition ascribes most
of the immense progress industry has taken during its existence. To this
may be added the apprehension lest the country which would take the lead
in the matter might find itself at a disadvantage with the remainder.
Generally speaking, the anticipation of a profitable use to be made of an
invention for one’s exclusive benefit is, no doubt, a powerful incitement
for the inventive genius, and equally is it admitted that to temporary
Patent-right we owe the successive improvements on many a useful
invention.
Experience has, however, taught that in most instances Patents do not
fulfil their mission; that on the whole they have not proved an actual
benefit, either to the proprietor or the public; that the profits have
gone just as often into the pockets of strangers as into those of the
able inventor. When chiefly ascribing the progress made by industry
through technical improvements in many of the countries where extensive
regulations of Patent-right are provided, to the incitement consequent
upon the protection afforded by Patents, the fact is overlooked that
the great inventions made in old times, as well as the scientific
discoveries which in the modern era paved the way for industry, have
perfectly done without any such incitements. Against the stimulating
influence of monopoly upon individuals, we must, however, in a period
so extremely favourable to industrial progress, not underrate the very
important point, that it also checks the quick and fertile development
of a new thought, which, when totally free, might be expected to spring
up in a higher degree from the competing labours of all. Of course, it
is impossible to say whether in England, Belgium, France, and the United
States, industry, if supported by other favourable stipulations, might
not have taken an equal development without the protection of Patents;
but we have at all events an illustration of this being the fact in
Switzerland, where the absence of Patents has not at all been found
prejudicial to the public at large. The records of the latter country
may dispel all apprehension lest the abolition of Patents should place
national industry on an unequal and disadvantageous footing with foreign.
If Germany be foremost in the indicated direction, we must, it is true,
be alive to the very likely occurrence of her standing, at least for
some time to come, isolated on her platform. A favourable result of the
movement in either England or France can hardly be looked for at a very
early date, considering the state of public opinion prevailing in those
countries, as well as the large individual interests at stake, owing to
the wide scope for protection arising out of their Patent system, while
at the same time it is yet a fact worthy of remark, that neither England
nor France have been able to make up their minds as to reforming a system
the numerous defects of which are universally recognised. In Germany
the same difficulties do not present themselves to the same extent, the
less prolixity of our Patent institution not affecting the industrial
part of the nation in nearly the same ratio. The whole system in this
country has been less active in all directions; proof of this is given by
the statistics of Patents, as compared with those taken out abroad. The
actual items in 1867 were as follows:—
For Prussia 103 Patents.
” Saxony 179 ”
” the Thuringian Union 33 ”
” Brunswick 32 ”
” Hesse 20 ”
” Oldenburg 12 ”
” Bavaria 214 ”
” Würtemberg 139 ”
” Baden 46 ”
Whereas, in 1866, there were granted—
In England (including the provisional protections) 3,453
In France about 4,400
In Belgium ” 1,700
And in the United States ” 9,450
In Prussia, on account of the rigidly adhered-to preliminary inquiry,
87 per cent. on an average of the Patents applied for during the last
ten years have been non-suited, and only from 50 to 100 requests a year
were granted. Besides, it is scarcely subject to a doubt that even of
these only a small number has been turned to practical use. Again, the
amount of privilege the Patent ensures is less in Germany than abroad,
as in conformity with the clauses of the Treaty of 21st September, 1842
(and which provisions should be kept in force under any circumstances),
a Patent does not confer upon its proprietor (not taking into view
machinery or instruments) a prohibitory right against the importation,
sale, or consumption of foreign articles.[7]
The anticipation that the abolition of Patents might cause the results of
new inventions to be lost to the nation through the respective inventors
turning themselves towards the protection-affording countries, is not
confirmed by the experience acquired on this head in Switzerland. The
industrial who has invented a new process will, in most instances, be
influenced by other motives to bring the same into operation where
he has his factory and his already acquired customers. Nor can much
importance be attached to the apprehension that, should the Patent-Law
be repealed, inventors might show more disposition towards keeping new
inventions secret from the public; for, even assuming the abolition to
be an incitement to keeping inventions secret, yet it cannot be admitted
that any prejudicial change from the present state of things would take
place. Even now, under the rule of the Patent-Law, it is a recognised
fact, that to such methods of fabrication and resources as admit of being
kept secret, the very secrecy affords ampler protection than the Patent
itself. By thus drawing the conclusion that those inventions which might
eventually be kept secret are so at the present time as well, no actual
prejudice will be caused by one measure being in force rather than the
other.
The Royal Prussian Government, therefore, thinks that by completely
abolishing the Patent system within the limits of the Confederation (a
resolution recommended by economical theory, and which public opinion
has been sufficiently prepared for), instead of making any further and
necessarily unsuccessful attempts at reform, the circumstance of the
Confederation preceding other important industrial nations cannot be
considered an actual impediment, although it would be far preferable that
the South-German States should join in the measure, so as to extend the
innovation to all countries comprised in the Zollverein.
The undersigned is of opinion that previous to further inquiring into
the particulars of the Patent-Law, the North German Confederation
ought first of all to decide whether henceforth any protection by means
of Patents should be afforded at all within the boundaries of the
Confederation. Assuming this, and also considering that the Confederation
shall have to take a decision as to the attempts at reform, the
undersigned moves: “That the Federal Parliament appoint the Committee on
trade and intercourse, to deliberate on the question proposed, and report
on the same.
(Signed)
“VON BISMARCK.”
[7] This mighty difference from our British practice is in harmony with
what I have shown is the scope of the original English Act, and with our
common law.—R. A. M.
PROPOSITION FOR THE ABOLITION OF PATENTS IN HOLLAND.
SECOND CHAMBER OF THE NETHERLANDS LEGISLATURE, SESSION OF 21st JUNE,
1869.—DISCUSSION ON THE ABOLITION OF EXCLUSIVE RIGHTS IN INVENTIONS AND
IMPROVEMENTS OF OBJECTS OF ART AND INDUSTRY—(PATENTS).
M. VAN ZINNICQ BERGMANN was not sufficiently prepared for the discussion
while the project was in Committee. He feels much sympathy for all such
measures as tend to do away with impediments to trade and industry.
At the same time, people ought to discriminate between the kind of
protection which is a hindrance to industry, and may be called monopoly,
and the one to which property is entitled on the part of the State.
At this part of his speech the hon. member indulges in extensive remarks
on the right of property. According to Roman law, the right of property
was a “_jus quod natura omnia animalia docuit_.” But that definition is
not a correct one, as the right of property is especially maintained in
civilised society.
After that, the hon. member launches himself into allegory. Try, quoth
he, to drive the lion from his den; he will defend it until his last
drop of blood! Look at the boy who snatches the young and tender bird
from its nest; the mother will pursue the robber, and not leave him.
Now, he should like to know whether an artist, an inventor, an author,
has, or has not, a right of property in his work which entitles him to
the benefits to be derived from it? This question he answers in the
affirmative, and refers to Soy, Massé, and the “Assemblée Constituante”
of France in December, 1791. And why should there be no right of
property? Perhaps on account of an article in the Civil Code, which
says, “_possession vaut titre_,” or of a restriction to a greater or
smaller lapse of time? We are continually referred to England and the
United States. But what is England? England is a country at the same
time emancipated and in course of emancipation. Duly considered, England
will be found to be, internally, in about the same state in which
the Netherlands were before 1795, or before the end of the sixteenth
century—(laughter)—but, the hon. member adds, always accompanied by such
improvements as rulers have successively granted with regard to Patents.
England may have had its commotions; but, nevertheless, charters have
never been otherwise but granted, and the privileges, exacted though they
may have been, were received at the hands of the King. And what have we
been doing? We expelled our Stadholder, and got annexed to France; the
principles of 1798 have taken root in our country, and continue to be the
basis for present action. The hon. member further argues that Patents
are granted to emancipated slaves, but free citizens take out “brévets
d’invention.” He is of opinion that it is a wrong impression that Patents
are to be placed upon a line with the abolition of guilds. There is no
connexion whatever between these institutions, and this he demonstrates
by reference to French authors. Even taking Michel Chevalier’s doctrines
for granted, he asks, “Could such difficulties not be obviated through
a _reform_ of the Patent-Law?” Once at a time, Alexander made himself
famous by cutting through the Gordian knot. That was a despot’s doing;
he might have deserved more fame had he succeeded in disentangling the
knot. Such should be the final aim the legislator ought to strive to
reach. Finally, the hon. member puts forward the question, whether the
passing of the law now before the House might not involve the country in
international troubles; for, Switzerland alone excepted, every country in
Europe has its Patent-Law. Besides, we are aware that, as far as literary
right of property is concerned, a neighbouring country has, against its
will, been compelled to maintain it. We, at our turn, might once have to
come back to what we want at present to repeal. Let us, therefore, be
cautious.