in the speech, containing so much that is valuable, delivered by M.
Heemskerk. These points are, first, the legal basis; secondly, treating
the question on the footing of Copyright; and, thirdly, the reference
to the practice in foreign countries. The speech of the hon. gentleman
who preceded me has made my task with reference to the two first points
peculiarly easy, so that I can content myself in a great measure with
simply referring to it. His confutation of the legal basis, as laid
down by M. Heemskerk, appears to me conclusive. To speak of occupation
in a non-material sense, to say that the _primus occupans_ can maintain
for himself or make over to another, on certain conditions, does seem
to me an untenable position. We must take into consideration what the
preceding speaker has already proved, that occupation from which a claim
can be made, and which one can consider as equivalent to the right of
possession, is inconceivable when the right is of a temporary nature.
But this is not all. How can any one acquire by occupation anything that
another at the same moment may occupy in precisely the same way? How
is it possible that two persons at precisely the same moment (and this
possibility is here not to be denied) can by occupation be possessed
of the same right? I shall say no more on the first point. The second
point, treating the question on the footing of literary property, or
Copyright. I freely admit that, if I were convinced, in case of our
consenting to pass this Bill, we should be pronouncing the abolition of
Copyright, I should recoil from giving my vote in its favour. But the
preceding speaker has, in my opinion, most clearly shown the points of
difference between industrial and literary property. I think I may be
allowed to refer, for further confirmation of the view I am taking, to
the observations of a man held in general consideration, and of especial
weight in this case, inasmuch as he was President of the Commission
appointed by the British Government to inquire into the question of
the retention or abolition of the “Law of Patents.” I refer to Lord
Stanley, who, in a debate in the House of Commons on the 29th May, to
which the hon. member for Gorinchem appealed, expressed himself with
regard to the difference between Patent-right and Copyright in a manner
so clear and distinct that I cannot even now see how I can improve upon
his distinctions. Lord Stanley said, speaking of the distinction: “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 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.” And he was perfectly right. While it is impossible for two men,
independently of one another, to write the same book, it is not only
possible, but such a case _has_ occurred, for two men to make the same
discovery—to light upon the same invention. There are examples of this
in the history of French industry. Daguerre and Niepce both pursued that
line of thought from which photography took its rise, and the fact is so
well ascertained that when the French Academy of Sciences had to come to
a decision about assigning a reward for the invention, they divided the
reward between Daguerre and the children of Niepce, then deceased. In a
report made by the present Minister of Public Works in Belgium, M. Jamar,
with reference to property in drawings and models of machinery, the
question of Patents is treated, and I notice in it one highly important
observation applicable to this subject under discussion. It is known—it
appears also in the supplement annexed to the Official Report—that at the
conclusion of the first Great Exhibition in London, the French Commission
brought out a report, in which the renowned politician, Michel Chevalier,
as the result of conclusions drawn from the Exhibition, declared himself
in favour of unconditional abolition of Patents. How did Michel Chevalier
come to that opinion? The report to which I refer informs us, and from it
I extract the following passage: “On seeing at the Exhibition in London,
at a few paces from each other, the same machines, the same tools, new
productions, invented or discovered a thousand miles apart, by men who
arrived at the same result sometimes by different ways, legislators and
magistrates felt themselves bound to ask to what principles of justice
and equity could one of these inventors appeal, that he might obtain a
temporary monopoly rendering abortive the efforts and experiments on the
part of ten other inventors as persevering, as conscientious, and as
intelligent as himself?” When Michel Chevalier, at the London Exhibition,
had seen a few paces from each other the same inventions, presented as
the mental produce of persons who lived thousands of miles apart, and
knew nothing of each other, he might well say that it is impossible to
recognise an exclusive right. But here is another proof that industrial
property and Copyright cannot be put upon the same footing. Moreover,
Patent-right precludes the possibility of the same thought being carried
out, at least for a time, but Copyright does not. Lastly, the third
point—the appeal to the feeling in foreign countries. M. Heemskerk, in
his excellent speech of yesterday, made it to appear that the feeling
on this subject in foreign countries was that the abolition of Patents
was condemned. It is perfectly true that at this moment, in most of the
European States, there still subsist laws for conferring Patents. But
must we thence infer in foreign countries an overwhelming conviction,
that there must be no abolition? I do not think so. There are, in fact,
evidences on this point worth attending to, which I shall proceed to
lay before the House. How is it in France? The law of 1844 is still in
force; but is it approved in France? Certainly not. They are convinced
that the operation of this law has given rise to the most serious
difficulties. This is a fact; and this fact has led to several proposals
for modification which have been pending for some years, and are still
pending, although the French Chambers get through their work more rapidly
than we do. The proposals have been already for several years pending,
because the carrying them out is hindered by the impression which the
valuable report of Michel Chevalier has produced, for every day the doubt
gains force whether it is a question of improving the law, or whether
it is not much rather a question of putting an end to the granting of
Patents. England—it is known that two investigations have taken place
in that country. One in 1851, by the Upper House; the other in 1862, by
a Government Commission, which issued its report in 1865. What was the
result of the investigation in 1851? I find the result in the report
of M. Jamar, which I just now referred to. I will read the following
extract: “The result of this inquiry was remarkable. Lord Granville
had been President of the Commission charged with presenting the Bill,
which, while it modified the Law of Patents, respected or left untouched
the principle. The inquiry so completely modified his convictions, that
he did not hesitate to declare, in the sitting of the House of Lords on
the 1st July, 1851, that he considered the issuing of Patents was an
advantage neither for the inventors nor the public.” So the Commission
of Inquiry, which undertook the task of discovering what amendments
could be made in the law, came to the conclusion that it would be better
to abolish Patents. I should occupy the House too long were I to quote
all that M. Jamar, in his report, borrowed from this Commission of
Inquiry. I will content myself with remarking that, among the witnesses
examined, and on whose testimony the opinions of the Commission were
founded, there were men perfectly well qualified to form a judgment.
They were not only economists, men of science, but also men of business,
practical men: Cubitt, President of the Institution of Civil Engineers;
Brunel, the celebrated engineer; Ricardo, Member of Parliament; Reid,
President of the Committee for carrying out the Great Exhibition of
1851; and other industrial and commercial witnesses, so described in
Jamar’s report. According to the same Belgian report, the testimony of
the English judges was very remarkable. They almost unanimously declared
that it was impossible to apply the law, and that they did not ascribe
this impossibility to the application of the principle in itself. Lord
Granville declared also, in a sitting of the Upper House, on July 1st,
1851, that his opinion was formed from the sentiments of the judges;
and he added: “The only persons who derive any advantage from the Law
of Patents are the lawyers. Except, perhaps, warrants for horses, there
is no subject which gives such an opportunity for roguery as the Law of
Patents.” And one of the law lords of the Upper House, Lord Campbell,
declared, after hearing the speech of Lord Granville, that having
been for nine years legal adviser of the Crown, and having had some
experience in the matter, he coincided perfectly in the opinion of Lord
Granville. The inquiry made by the English Government Commission led
to the same result. In the sitting of the Lower House on May 28 of the
present year, of which I have already spoken, Lord Stanley distinctly
said that he had taken his place in the Commission with the impression
that the business before them was not to abolish Patents, but to take
measures for the amendment of the English law on that subject. During
the inquiry, however, together with those who took part in it he had
come to the conclusion that not only the existing law, but every law on
Patents, would meet with almost insurmountable difficulties, because
these difficulties do not lie in the application, but are inherent in
the principle. M. Heemskerk made it appear yesterday that the result
of the discussion of May 28 in the Lower House was in favour of the
continuance of Patents. I cannot go to such a length in my estimate of
that discussion. A motion was brought forward by Mr. Macfie, [an ex-]
President of the Liverpool Chamber of Commerce, to declare that the time
had now arrived for the abolition of Patents. At the end of the debate
the motion was withdrawn by the proposer. Now, the hon. member for
Gorinchem has drawn the conclusion, from the course pursued, that the
proposer durst not put his motion to the vote, because he was certain
of a minority. The conclusion is somewhat hasty, for nobody can tell—we
at least cannot—what the vote of the Lower House would have been had
the motion been put. Besides, the object of the motion appears in the
speech of the proposer. His chief aim was to invite discussion, “to lay
a general view of the subject before the House,” as he expressed it,
rather than to get a decision. In his speech he also gave it as his wish
that the subject should be again investigated by a Government Commission.
I am of opinion that, from what I have said with reference to England,
the conclusion cannot be drawn that the retention of Patents is there
the unqualified and prevailing determination. Belgium: The last law on
Patents, the law of 1854, is there in operation. I know not if it works
well, and perhaps it would have been worth while for the Government to
get such information. Meanwhile I have a thick volume here before me,
containing a commentary on the law, which I have not read completely
through. It contains 300 pages, but I have run through it, and it
appears to me that the so-called commentary is in very many respects
a criticism on the law, and affords a proof that it by no means works
so extremely well. Last of all, Germany: M. Heemskerk spoke yesterday
of the unanimity of the Germans on the subject of maintaining Patents.
I should not like to admit that unanimity so unreservedly; there are
facts, at least, opposed to that assertion. This fact, for example, which
we have extracted from an article in the _Nieuwe Groninger Courant_,
just sent to us, a proposal for the abolition of Patents made to the
North German Bund; and if this is carried out, no more Patents will be
granted in a great portion of Germany. Another fact: so far back as 1864
the Prussian Government asked the opinion of the Chambers of Commerce
on the question whether or not Patents should be maintained, and of
the 47 there were 31 for the abolition and 16 against it. I scarcely
venture to speak of the economists, otherwise I would appeal to the
German Economic Congress of 1863, which pronounced Patents injurious to
the national welfare. But there is one argument which has more weight
with me than any other. I am thoroughly persuaded that a good law on
Patents is an impossibility. It is, indeed, matter of regret that the
hon. member for Gorinchem, when he was in the Ministry, did not try to
present a good law to the Legislature. He was the right man for it. He
will, however, do me the justice to believe that, when I say this, I do
not mean to censure him; what I do mean is to express my regret. He is
open to no censure, for during the time he held office he attended so
assiduously to his duties that even his most violent political opponents
were compelled to do him honour. But yet it is to be regretted that when
he was Minister he did not propose an amendment of the law of 1817. We
should then have seen whether it was possible or not to have a good
efficient law on Patents. For my part, I have arrived at the conclusion
that it is an impossibility. This is the impression made when one goes
over foreign laws on Patents. There is not a single good one among
them, nor one which does not give rise to difficulties which hitherto
have been found to be insurmountable. But there is a further objection.
According to my notions, there is a formidable stumbling-block which is
directly encountered when one sets to work to frame a law on Patents.
The question at once presents itself, must it not be proved that the
person who demands the privilege has a right to it? When has the claimant
that right? When it is proved that his invention has for its object a
new industrial product, or a new operation, or a new application of an
operation already known, to obtain an industrial result or an industrial
product. The words which I here employ are taken from Art. 2 of the
French Law, which, in my opinion, exactly express the object of the law.
I now ask, if a Government is in a position, in this sense, to examine
the claim of an applicant for a Patent? I shall endeavour to prove that a
Government is not in such a position, and I cannot do better than quote
the words of the author of the report on the French Law of 1844, the
celebrated Philippe Dupin. We know that the French Law does not undertake
the preliminary investigation; and, therefore, as we have been already
reminded by M. de Bruyn Kops, when an announcement is made of articles
for which a Patent is granted in France, the letters S. G. D. G. (_sans
garantie du Gouvernement_) are generally added. Now, hear what Philippe
Dupin says in justification of that principle of French Law, and to
prove the impossibility of a preliminary examination on the part of the
Government: “The preliminary examination would be the establishment of
a censorship in matters of industry. And how could this censorship be
carried out? How, for example, are we to decide that an industrial fact
is new, and that it has not been produced in the course of manufacture
or in the retreat of an obscure and industrious workman? How are we to
foresee and judge the amount of utility in a discovery just made, before
it has been developed, before it has been put to the proof? Who will take
part in this debate? Who will represent the parties interested? Where are
the judges to come from? Who will exercise this jurisdiction by guesswork
in the regions of thought and futurity? Shall it be a clerk turned
into a judge of what he does not understand? Shall we take a practical
man, who is often only a man of routine, to judge a man of theory and
inspiration? Shall we invite philosophers? But if they are philosophers,
they are not to be supposed to know everything, and they have their
preferences, their prejudices, their own sets; and the applicant,
perhaps, contradicts their doctrines, their works, their ideas. These
are incontestable impossibilities. It has been said, with as much wit
as reason, in such matters the only suitable proceeding is experience,
the only competent judge the public.” So much for experience. But, Mr.
President, if a Government is not in a position to decide whether the
claimant of a Patent has a right to it, can it be sanctioned in granting
a privilege blindfold which establishes a temporary monopoly? According
to my view, this is a formidable, almost insurmountable, stumbling-block,
which, in my deliberate opinion, will always stand in the way of a good
and efficient Law of Patents. I, therefore, am of opinion that no other
satisfactory course is open to us than to abolish Patents.
M. VAN VOORTHUYSEN will not enter into many details, the subject having
been considered both from a juridical and an economical point of view.
He will, therefore, restrict himself to a few remarks on M. Heemskerk’s
speech. The hon. member acknowledges the satisfaction the project gives
him; it gratifies the feelings to which he has given vent a great many
times. It has been said that the measure was a step backward, as Patents
have taken the place of exclusive privileges to guilds. At the time the
Patent-right was assuredly an improvement on the then existing system;
but we have been progressing so much since then that at present nothing
short of abolition will satisfy the wants of progress. He also refers
to the conclusion arrived at by Lord Stanley, which point M. Heemskerk
has left unnoticed—viz., 1st, that it is impossible to reward all who
deserve to be rewarded; 2nd, that it is impossible to reward adequately
to the service rendered to society at large; 3rd, that it is impossible
to hold third parties harmless from damage. And, in fact, the alleged
instance of the Daguerre prize having been divided with another who
equally proved his claim to the invention, speaks for itself. It is
doubtful who was the first inventor of the steam-engine; there are
several, at least, who claim the invention as their own. There is another
point he feels bound to refer to. M. Heemskerk has said that abolishing
Patents constitutes an attack upon the right of property, and that deputy
cautions against a first step, perhaps to be followed up by others. This
being a very serious inculpation, the hon. member has asked the opinion
of an eminent jurist, whom he will not name as yet, whose authority M.
Heemskerk is not likely to deny, and who is in many respects congenial
with that esteemed deputy. The hon. member reads that opinion of one of
the foremost opponents of Patent-right, who calls it an obnoxious and
intolerable monopoly. And who is that clever jurist? It is M. Wintgens,
who very likely owed to his extraordinary acquirements in law matters
his appointment to the Department of Justice in the Heemskerk van Zuylen
Ministry.
M. FOCK (Secretary of State for Home Affairs) will not have much to say,
after all which has been argued in yesterday’s and to-day’s Session, in
defence of the project. Nevertheless he will indulge in a few remarks
on the final report. With a view to the same, M. Heemskerk submits the
maintenance of Patents for inventions, but the repeal of those “of
admission.” But the Minister calls the attention of the House to the
circumstance that the Patents for inventions which are being granted may
aggregate to ten a year or thereabout. What should remain for us to keep?
Or else agents here will apply for Patents on foreign inventions, so that
“Patents of admission” will re-appear under a different denomination.
M. Godefroi has already pointed to instances abroad, and the Minister
can but add that, despite M. Heemskerk’s assertion to the contrary, the
Prussian Government is by no means favourably disposed to the Patent-Law.
In December, 1868, Count von Bismarck addressed a message to the North
German Confederation, embodying the opinion of the Prussian Government
in favour of repeal, and even hinting that Prussia would not mind
taking the lead in the matter.[9] After entering into a few more details
concerning the final report, the Minister once more demonstrates that
Patents are great impediments to industry and free-trade, and that it is
in the public’s interest that they should be abolished. The Netherlands,
having once been foremost in doing away with the tax on knowledge, must
not now shrink from conferring entire freedom on the field of industry.
That is no reaction. Is it reaction to break off with an intolerable
state of things? No; it is progress, and leads to free development. The
Minister concludes with a citation from Michel Chevalier, and declines to
take M. Heemskerk’s hint of deferring the discussion on the project.
M. HEEMSKERK AZN replies. He tenders thanks for the urbanity observed
throughout the discussion. But it is undeniable that his opinion agrees
with the existing right and the prevalent ideas in Europe and America.
Of course, if revocation is intended, improvement of the law has to be
given up. In reply to the Minister, he has no doubt but that the desire
for revocation originated in Prussia, but he has said that in Germany the
tide has turned in favour of Patents, on the strength of the “Deutsche
Industrie Zeitung” and Klosterman’s recent work. The revocation of the
Patent-Law may have been contemplated, but the Prussian Government is
not now disposed to have the idea carried out. He asks but for what the
English equally asked for—_i.e._, a renewed inquiry. What, after all, is
foreign experience to the exercise of law in the Netherlands? How does
the project tally with the establishment of a new division of industry
in the Department for Internal Affairs, the chief occupation of which is
the granting of Patents? He will not argue with the Minister on general
remarks, but merely on the one relating to the abolition of newspaper
stamps. Why has that tax been repealed? If henceforth a larger quantity
of paper be covered with print, the tax has most likely been done away
with to promote the diffusion of general knowledge. He supposes, however,
the Minister will agree with Cicero, who says that fame acquired by
means of deeds which are not useful is but vanity. The stamp duty has
been repealed in order to be useful. And in the present case, will the
Minister deny all benefits to him who does his utmost, so as to be
useful? He replies also to the several members who have made speeches;
he contradicts M. de Bruyn Kops about a general disposition supposed to
exist in France towards revocation of Patent-Laws. Michel Chevalier only
has changed his mind, but there is no opinion prevailing against Patents.
Quite recently both Joseph Garnier and Wolowski have refuted Chevalier’s
arguments.
The hon. member further insists upon _his_ interpretation of the
Parliamentary debates in England, and names several instances of
inventors having acquired wealth. He does not admit that there is a
difference between Patent-right and Copyright; imitation of articles of
fabrication is, and will remain, as immoral as it is unfair. He shrinks
from touching the legal side of the question, but asks whether, because
of the Patent-right being restricted to a fixed time, the conclusion must
needs be drawn that absolutely no right should exist, and that there
should be no plea in equity whatever for an inventor to get rewarded
for his labours? Does the abstract question of occupation of immaterial
things cripple that hypothesis in any way? He considers it from a more
general and social point of view, and vindicates his assertion that an
inventor is entitled to a certain amount of protection for his work, by
which, at all events, he renders a service to society; that Patents are
incitements to many useful inventions and to industry, which is equally
M. de Bruyn Kops’ opinion, as stated in his work on political economy. He
has been asked why, when in the Ministry, he did not introduce a Patent
Reform Law. In the first place, he begs to observe that much was to be
done then, and besides, considering the smallness of our country, he
indulged in the anticipation that the idea of an international agreement
might gradually have gained ground. Should he, however, have lived
longer (politically speaking), he _would_ most likely have introduced a
Bill for remodelling the Patent-Law. As for M. Wintgen’s opinion, it is
almost superfluous to say that one is not bound to have in every respect
homogeneous ideas with one’s political friends. In reply to the question
why, as a member of the House, he does not make a proposal, he accepts
the invitation, and will in September next be prepared to take, as a
member of the House, the initiative of presenting a Bill for Reforming
the Patent-Law, provided the project now pending be no longer discussed.
M. VAN ZINNICK BERGMANN replies, and maintains his opinion about the
justice of the Patent-right.
M. DE BRUYN KOPS refutes M. Heemskerk’s reply, and demonstrates, by
means of fresh examples, that the Patent-right is intolerable and most
obnoxious. He considers the question now merely economically; MM. van
Houten and Godefroi having so ably discussed the legal points. The
large benefits acquired by a few are, as taken from his point of view,
prejudicial to the public at large, and against these few advantages
there are great damages, as large capitals dwindle away in the chase for
the snare of Patents. M. Heemskerk himself favours the revocation of
Patents on the right “of admission.” What is left after that? Nothing but
the Patents of invention. Why not try entire freedom and removal of all
impediments?
M. GODEFROI will add one word more with reference to M. Heemskerk’s
readiness in accepting the challenge, of framing a new project of law,
and he must say that, whatever be the nature of such proposal, it can
hardly be expected to satisfy those who condemn the principles of
Patent-Law. But the orator who is so well posted must certainly have
framed already the main points from which the project would have to
be formed. By stating and explaining those points, he would have done
more service to the House than by mere opposition to those who favour
abolition. The hon. member repeats the important query, whether Patents
should be granted without previously inquiring into the merits of the
case; and then Government would have to give its opinion just as well on
an improved chignon as on an improved steam-engine.
M. GEFKEN gives his motives for voting in favour of the project. He
says, where there is a right of property, it must be permanent, and even
transferable to the heirs; but a guarantee for a few years would not do.
He consequently does not recognise the right of property, and merely
considers the question with a view to usefulness; and, as far as that
goes, his experience in administrative and juridical offices has taught
him that Patents are not actually useful, and, on the contrary, lead
to speculation and impede the development of many a useful concern. He
favours free competition.
M. VAN VOORTHUYSEN will not revert to M. Bergmann’s remark about his
being accustomed to recapitulate the debates, but denies having intended
to force upon him the authority of M. Wintgen’s opinion. Such is not the
case; but the fact of the opinions of two such jurists as MM. Godefroi
and Wintgen agreeing has set his mind at rest as far as legal opinion is
concerned.
M. HEEMSKERK AZN replies to M. Godefroi, and does not see why he should
just now go and sketch his project. Give him time and opportunity, and he
will introduce a Bill, provided this project be deferred; and, in fact,
what are they making such haste for?
Minister FOCK maintains his sayings about the Prussian Government
favouring revocation, and further explains that the new division in
his department has no connexion with Patents, but was made so as to
concentrate all matters referring to industry. As for the right of
property in inventions, he would merely add that, according to our
legislation, Patents are but favours, which may be granted or not, as the
case may be.
Hereupon the discussion is closed.
With reference to Art. 1, M. Lenting asks, why the date on which the new
law has to take effect should be fixed for the 1st January next. He would
prefer that the words be, “After the day of the publication of the law;”
then no new Patents would be granted, those already applied for only
excepted.
The Minister inserts the amendment, after which Arts. 1 and 2 are passed.
The project is then put to the vote, and passes the House by 49 ayes
against 8 noes.
Against it voted MM. Bichon, Blussé, Vader, Hofmann, Heemskerk Azn, Van
Wassenaer, and Van Zinnick Bergmann.
[8] For this translation I am indebted to the Foreign-office, to whose
reports I have been politely allowed access.
[9] This admirable document is prefixed, see page 185.
FROM THE DUTCH GOVERNMENT MEMORIAL.
The project of law, which is accompanied by an extensive memorial of
explanation, contains the following stipulations:—
_Article 1._—From and after the 1st of January, 1870, no
fresh Patents for inventions and improvements, or the first
introduction of objects of art and industry, shall be granted,
those only excepted for which application shall have been made
previous to that date.
_Article 2._—The term for Patents formerly granted or
deliverable within the provisions of Article 1 of this law may
be extended in accordance with the law of 25th January, 1817.
(Vide “_Staatsblad_,” No. 6.)
The memorial says, _inter alia_:—
“In order to let Netherlands industry and Netherlands people reap the
benefit of the bulk of improvements in industry, the best course to take
appears to be the repeal of the Patent-Law.
“The first requisite of a reform of the existing legislation on Patents
would be to more completely guarantee their rights to inventors, they
being by no means sufficiently protected by the provisions of the law now
in force.
“Considering, however, the consequences of any kind of Patent-Law, the
means that are to be employed and the expenses to be incurred, so as to
render all parties interested quite familiar with the Patents granted;
the fact that, in consequence of the development of industry, the number
of Patents is increasing, the result of which is more and more to burden
the exercise of the sundry branches of industry with a larger portion
of obstructive privileges, besides the abuses and wrong practice to
which they lead; in one word, the price which the public have to pay,
compared with the very few inventors, whose advantage is even at best
uncertain—considering all these points, there can hardly be a doubt as
to the choice the Netherlands ought to make, placed as they are between
the dark path leading to more obnoxious privileges and the highway where
freedom of movement prevails.”
We subjoin the following, with which we have been favoured, on the same
subject:—
The project of law to repeal the Act of 1817 for granting exclusive
rights on inventions and improvements of objects of art and industry,
has given general satisfaction in four Committees of the House, and many
have received it enthusiastically. By introducing this Bill, Government
has satisfied a desire which of late was frequently manifested by members
of the House. The memorial of explanation, with its vouchers, gives
full particulars of the objections raised against the Patent system.
Most members, in fact, simply gave their adhesion in substance, without
considering it necessary to “motivate” their opinion.
A few Members of one of the Committees did not agree with absolute
repeal, and even held such a measure to be at variance with justice and
equity; they recognised the law of 1817 to be defective and in many
cases impracticable; they granted that when a reform might be arrived at
“Patents of admission” ought not to remain in force; but they did not
see why, on account of the insufficiency of the law in this country,
“Patents for invention” should be abolished as well. There are a good
many industrial inventions which cost the originator vast mental labour,
sometimes even heavy pecuniary sacrifice. By means of his invention
he renders society a service which entitles him to enjoy, for a fixed
period at least, the exclusive benefit of bringing it into operation.
Should this benefit be denied him, it would be but fair that the State
should give him a reward; this, however, is subject to difficulties of a
peculiar nature.
The opinion that the repeal of the law would leave intellectual property
altogether unprotected, may be refuted by the fact that the principle of
intellectual property cannot possibly form the basis for a Patent-Law.
Although it was emphatically proclaimed in the French Legislature of the
first years subsequent to the Revolution of 1789, it will not stand the
test of sound criticism. Could right of property be admitted in this
case, it ought to be permanent, and not temporary. Yet no Legislature
ever dared to extend the so-called right, even for the inventor’s
lifetime; the terms were generally ten, twelve, fifteen, and, at most,
twenty years. Another circumstance, which is in downright contradiction
with the notion of right of property, is the fact that everywhere Patents
are granted only on payment of a certain sum.
If Patents are to be defended at all, better try to do it on a principle
of utility. Some appearances are in favour of the plea that anticipation
of reward and pecuniary benefit originates useful inventions; but
pecuniary experience has taught that although every now and then this may
be the case, still the very existence of a strict Patent-Law, is, on the
whole, a decided hindrance to industry; that the inventor’s benefit from
his Patent is, in most instances, but doubtful, whereas by doing away
with this artificial encouragement, inventions will not, on this account,
remain in the bud undeveloped.
A strict Patent-Law is subject to strange drawbacks, which have been
chiefly demonstrated by the inquiry in England; whilst in Holland the
well-known decision of the Supreme Court of 1846 has well-nigh vitiated
it.
Under the circumstances, no choice was left our Government but between
a stricter law than before and complete freedom. Very justly it has
declared in favour of the latter, and, as it states, chiefly Switzerland
in its eye, where very many branches of industry are in a most
flourishing condition, ascribable, in part at least, to the very absence
of Patent-Laws, with their escort of drawbacks and law-suits. There the
manufacturer goes upon his own errand, avails himself of inventions made
by others, and, if he cannot at once get at the bottom of the same, tries
to arrive at them through his own exertions and his own ponderings.
The step taken by Government deserves the more approbation, inasmuch as
no legislation can sufficiently guarantee to the real inventor _that_
exclusive right which is considered a reward for the service rendered to
society. Not seldom it happens that the inventor is a scholar, who makes
the fruit of his labours public, leaving to others the deriving pecuniary
benefits from it.