M. GODEFROI said:[8] I rise to make some observations on three points

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.

Recent discussions on the abolition of patents for inventions in the United Kingdom, France, Germany, and the Netherlands · 第 15 / 26 段