to the new system being in accordance with morality, and perhaps be an
encouraging of the dishonesty which lies in the appropriation of another
man’s invention, thereby reminding the Netherlander of Güttenburg. To
this we may bring forward the argument that, as far as the deed ascribed
to that German falls within the limits of theft, or of violation of
contract between master and servant, nobody will defend it; but in the
circumstance that Güttenburg, having once mastered the art, applied it to
bring it into operation, and by exerting his intellect, raised it to a
much higher pitch of perfection, there lies nothing dishonest. If these
proceedings be incriminated, then the principle ought to be transferred
to another field—that of trade. Then the merchant who takes advantage of
a new outlet or a new branch of commerce inaugurated by another, ought to
be reprobated; but if so, farewell to all competition—nay, to the very
principle of free-trade.
A few of the supporters of the Patent-Law ask whether Copyright does
not rest upon the same basis as the exclusive right to inventions, and
whether the new law will not be followed in its wake by the ignoring
of literary property. But against a few similarities we have a material
difference in substance.
If not all, yet most literary productions bear such a marked stamp of
individuality, that intellectual property cannot be contested. However it
may be, the different subjects have each their own laws, and both authors
and publishers we quite leave out of the question.
OPINION OF THE LEADING JOURNAL OF HOLLAND, THE “ALGEMEEN HANDELSBLAD.”
In the history of the Netherlands economy, the 22nd June, 1869, will be
long remembered. Whatever shall be the decision of the First Chamber,
the fact of the Law [Bill] having passed the Second Chamber by 48 yeas
against 8 noes is a highly gratifying occurrence.
The chief feature in the opposition on the part of the Conservatives was
the able speeches made by their leader, M. Heemskerk, in order to prove
that invention confers a right of property. Without going into the merits
of the case, we cannot help recording that, in the opinion of those that
side with M. H., it must be a suggestive circumstance that, despite
all the earnest pleading of the honourable gentleman, 48 out of 57
representatives, of men of the highest moral and intellectual standing,
did vote for abolition, and still did not intend despoiling anybody of
his own.
Invention is the effusion of thought, and just as thought cannot but be
free, so invention must be the same.
We hope that the Netherlands will not long remain alone in this instance.
At any rate, we may be proud of the overwhelming majority of men able to
understand the real means of progress.
EXTRACT FROM AN OBLIGING PRIVATE LETTER.
Amsterdam, June 28, 1869.
... In some respects, the rather powerful arguments of the members
who were favourable to the continuance of the system of Patents—and
who contended that an inventor, the same as an author, has a right
to protection of his individual mind-work—were defeated, principally
by the pretty general opinion of the majority that it would be
next to impossible to adopt any new Law on Patents efficient to
protect one inventor without at the same time injuring not only some
brother-inventor, but also the public at large.
FROM THE “FRANKFORT JOURNAL,” JULY 21.
The abolition of the Patent-Laws in the Netherlands will, it is evident,
not remain without influence on the decision which other European
States, and in particular those of Germany, will form in regard to
these laws. Of the two countries, one of which is in possession of the
sources of the Rhine, and the other of its mouths—the former the most
industrious country in the world, never had a Patent-Law; the latter,
eminent for its foresight, dispenses with those laws. Through this act
are intensified the unsatisfactory circumstances which the existence of
these laws produces, and the want of confidence which is felt in their
advantage to inventors and the public. The number of their defenders is
constantly declining. People are daily more and more becoming convinced
that these laws belong to the same category as the Usury-Laws and the
Corn-Laws, and other similar excrescences introduced by bureaucracy, and
that they should be thrown into the lumber-room of laws which effect the
very reverse of what they profess to do. They stop progress. Inventions
of importance can always be made useful to the inventors without
Patent-Laws. Great inventors might perhaps be indemnified by Government
on behalf of a nation, but as for the innumerable herd of small inventors
who prosecute inventing as a trade, they cause the consumer severe injury
instead of benefiting him. Since Patents for inventions in Germany do not
extend to protection against dealing in foreign articles patented here,
we may consider the abolition of Patents in the Netherlands a reason why
Patent monomaniacs should now ask themselves whether the cost is likely
hereafter to yield a good return.
PROCEEDINGS IN LIVERPOOL CHAMBER OF COMMERCE.
At a meeting of the Council on July, 1869, E. K. MUSPRATT, Esq., rose and
spoke to the following effect:—
Mr. President,—I rise to call your attention to the late debate on the
Patent-Law. This Chamber has frequently expressed its dissatisfaction
with the working of the present law, and after the issue of the Report
of the Royal Commission on the subject, endeavoured to bring about an
inquiry into the policy of granting Patents for inventions. I cannot
but think the time has now arrived for further action in this matter.
The late debate upon the motion of Mr. Macfie has re-awakened public
interest in the subject, and it is gratifying to note, both in the
debate itself and the subsequent discussion in the newspapers, that the
formerly very prevalent idea of a natural property in inventions has been
tacitly abandoned. In some of the arguments used the old fallacy seems
to lurk, for the _Pall Mall Gazette_, in a very able article, says: “It
is plausible to say that if there were no property in invention every
one would get the benefit of all inventions; but this appears to us to
have some analogy to the notion that if there were no property in land
every one would get the benefit of the crops.” There is, however, a
very great difference, because an invention cannot possibly yield all
the benefits which society can derive from it until it becomes public
property; whereas all experience proves that land, in order to yield
the greatest results, must become and remain individual property. Let
us discard, therefore, all comparison of property in invention with
other property, and discuss the subject as one of expediency. Is it the
interest of the community at large that Patents should be granted for
inventions? I am not prepared to say whether or not inventors should
be remunerated by the State; but, after mature consideration, I have
come to the conclusion that, in the interests of the nation and of all
engaged in industry, Patents for invention should be abolished. A Patent
is a monopoly, a patentee a monopolist. When the Protectionist system
was in vogue, Patents which were in full harmony with that system could
be justified; but in these days of Free-trade all monopolies which act
in restraint of trade should be abolished. Some of the arguments used
in support of the system of Protection to inventors by granting to
them a monopoly of manufacture are, to my mind, very similar to those
used in former days in support of other monopolies. Before the repeal
of the Navigation Laws, it was said that without them our marine would
be destroyed, and no more ships would be built, because there would be
no inducement to build them. Without Patents, say the defenders of the
system, there will be no inventions, because there will be no special
inducement to make them. We maintain, however, that under a freer system
invention would be stimulated, and not restrained. As was well pointed
out by Sir R. Palmer in his able speech, “Bounties and premiums might be
adapted to a rude state of the arts and an early stage in the progress
of commerce; but when a nation had reached so high a degree of progress
in all ingenious arts and discoveries, and in trade and commerce, as we
had, he thought that in this department, as well as in others, the system
of bounties and premiums was much more likely to be mischievous than
useful.” He then very clearly showed how the Patent system worked; how,
in the place of securing the reward to great and meritorious inventions,
it gave a monopoly to the first claimer of those minor improvements
which he classed as unmeritorious Patents, and which improvements would
necessarily be made in the ordinary progress of manufacture. As an
example of this, I may mention the manufacture of artificial manures. The
modern history of manures dates from the publication of Liebig’s book
in 1840, in which the conversion of insoluble into soluble phosphate
of lime is recommended. This suggestion has been perhaps more fruitful
in results than any other of modern times, and forms the basis of the
enormous manufacture of super-phosphate and other artificial manures. It
was patented in 1842, not by Liebig, but by Mr. Lawes; and since that
period various improvements in the manufacture have been patented, but
the real inventor has never been rewarded. There can be no doubt that
without a system of Patents all of the subsequent minor improvements
would have been made in the ordinary course of trade; and one of the
main objects of the Patent-Law, to secure a reward to the inventor, has,
in this instance, as in many others, failed of accomplishment. Then, on
the other hand, all these minor improvements, being patented, stand in
the way of further progress, and if the manufacturer wishes to adopt a
new process, or to improve his manufacture, he must do it at the peril
of litigation with some unknown person, who at some time or other has
thought fit to claim for himself a monopoly. No matter whether his
claim be good or bad, it stands in the way of improvement until it is
either disclaimed by the patentee himself or pronounced invalid in a
court of law. As an example of how, under the present system, a patentee
may create a virtual monopoly and embarrass manufacturers even when
his claims are, according to his own showing, to a very great extent
invalid, permit me to draw your attention to a Patent, No. 12,867, A.D.
1849, for compressing peat for fuel, making gas, &c., and with which I
unfortunately became acquainted, because the patentee, under another
Patent (connected, however, with the first), endeavoured to make my
firm pay him for the use of a substance in the manufacture of sulphuric
acid. Now, the patentee, Mr. F. C Hills, finding, I presume, that in its
first state his Patent was invalid, filed what is technically termed a
disclaimer, in 1853; and on comparing the original specification, which
is very long and consists of about 230 lines, I find at least one-half
is disclaimed. This Patent secured to Mr. Hills the monopoly of the
purification of gas by means of oxide of iron; and although, owing to
the exertion of the Liverpool Gas Company, he failed to have it renewed
at the expiration of fourteen years, by a subsequent Patent for the use
of the said oxide (after it has been used in the purification of gas)
in the manufacture of sulphuric acid, he continues virtually to enjoy
that monopoly, and to prevent chemical manufacturers having access to
what, under certain circumstances, may be a cheap source of sulphur. And
this I would wish you to bear in mind, although the second Patent is
undoubtedly invalid. It would detain you too long were I to enter into
full detail on the subject, but I may mention that our firm used some
2,000 or 3,000 tons of this gas refuse from the Liverpool Gas Works,
when pyrites was high in price; and it was only because of the annoyance
and waste of time which a law-suit would have cost that we relinquished
its use in our manufacture when the price of pyrites fell. But this case
is but a sample, and I have no doubt every manufacturer has experienced
similar loss and inconvenience from the action of the Patent-Law. When
we consider that there are at the present moment 11,369 Patents in
force, most of them as invalid as that to which I have referred, and
acting as a restriction on manufacturers, we may form some idea of
what the community at large has to pay for the luxury of a Patent-Law.
But it may be said these objections are due to the imperfections and
mal-administration of the Patent-Law. I would refer you, then, to
the Report of the Royal Commission, which, in conclusion, says that
“these inconveniences are, in their belief, inherent in the nature of a
Patent-Law, and must be considered as the price which the public consents
to pay for the existence of such a law.” There is, however, another
aspect of the question which must not be lost sight of. The Lower House
of the States-General of Holland has, by a large majority, voted the
abolition of Patents. In Switzerland they don’t exist; and in Prussia,
owing to a very strict preliminary examination, faithfully carried out,
they are very few in number. We in this country have to compete with
the manufacturers of these countries; and is it fair, I would ask, that
we should be thus weighted in the race? I beg to move that a petition
be prepared for presentation to the House of Commons, praying for the
appointment of a Committee to inquire into the policy of granting Patents
for invention.
(The motion was unanimously adopted.)
CORRESPONDENCE.
The subjoined letters, with which I am favoured, will be read with
interest and advantage:—
FROM SIR WILLIAM ARMSTRONG, C.B.
As to the cost of the system to the public, I don’t see how it could be
calculated, for it consists not merely of the licence fees, but also of
the loss resulting from the stamping out of competition, which would
cheapen production and, in most cases, lead to improvement. My great
objection to our indiscriminate Patent system is, that it is scarcely
possible to strike out in any new direction without coming in contact
with Patents for schemes so crudely developed as to receive little or no
acceptance from the public, but which, nevertheless, block the road to
really practical improvement.
Nothing, I think, can be more monstrous than that so grave a matter as
a monopoly should be granted to any person for anything without inquiry
either as to private merit or public policy—in fact, merely for the
asking and the paying. Amongst other evils of this indiscriminate system
is that the majority of Patents granted are bad, and yet such is the
dread of litigation, that people submit to a Patent they know to be bad
rather than involve themselves in the trouble and expense of resisting
it. So that a bad Patent, in general, answers just as well as a good one.
One of the most common arguments in favour of Patents is, that they are
necessary to protect the poor inventor, but it is manufacturers and
capitalists, and not working men, who make great profits by Patents,
and that, too, in a degree which has no reference either to the merit
of the inventor or the importance of the invention. One rarely hears of
a working man making a good thing of a Patent. If he hits upon a good
idea he has seldom the means of developing it to a marketable form, and
he generally sells it for a trifle to a capitalist, who brings it to
maturity and profits by it. He could sell his idea just as well without
any Patent-Law.
May 13, 1869.
FROM ANOTHER HIGH PRACTICAL AUTHORITY, LIKEWISE A NOTABLE INVENTOR.
I would not for one moment deny that instances could be named in which
the absence of a Patent-Law might have proved a hardship to a real
inventor, but I feel quite satisfied in my own mind that whatever
may hitherto have been the case, the time has now fully arrived when
infinitely less injustice would, upon the whole, be occasioned by the
absence of all Patent-Laws than by the best Patent-Law that could be
devised. All Patents for inventions must be considered as founded upon
expediency and not upon the idea of any inherent right which the inventor
possesses beyond the right of using his invention, or keeping the
secret of it to himself. A community may consider it to their advantage
to protect inventions by means of Patent-Laws, but a man can have no
abstract or natural right to the exclusive benefits of his invention, for
such an idea would imply that nobody else could have produced it. The
question is, therefore, entirely one of expediency, but not one of right.
Again, a very common argument used in support of a Patent-Law is that
an inventor is as much entitled to an exclusive right to his invention
as an author is to the produce of his pen, but there is really very
little resemblance between the two cases, and I believe it would be very
inexpedient to utterly abolish Copyright. “Paradise Lost” would never
have been written but for Milton; but with the utmost respect for Bell,
Fulton, and Stephenson, who would pretend to believe that without them we
should still have to be dependent upon the wind for our movements at sea,
and the common road ashore? A man who writes a book does not interfere
with me in the slightest degree, but the inventor, or more probably the
so-called inventor, backed by the Patent-Law, may most unjustly involve
me in much trouble and expense. I should be very glad to see a good round
sum set apart by Government for the purpose of being awarded to real
inventors by competent and impartial authority. Then the poor inventor
might have some chance. You will certainly, in my opinion, have done a
good turn to this country if you can only get every vestige of Patent-Law
swept from the statute-book, and with my best wishes for the success of
your motion, I am, &c.
FROM ANDREW JOHNSTON, ESQ., M.P.
7th July, 1869.
MY DEAR SIR,
I am glad to hear that you intend printing the results of your inquiries
as to the operation of the Patent-Laws, as the conclusions at which you
have arrived tally entirely with my own experience as a manufacturer.
I had no opportunity of speaking in the recent debate on your motion, and
will therefore put down one or two points which have specially presented
themselves to my attention.
I am not biased, I believe, by self-interest, as the business with which
I am connected has profited to a considerable extent by the purchase of
patented inventions; but it is my firm conviction that the commonwealth
would benefit by the refusal of the State in future to grant Patents.
Nothing can be more superficial than the objection that the intelligent
working man benefits by the present system. For one such who really
benefits by his invention, ten sell theirs for the merest fraction of its
value; ten others who may get a fair price are led, by the possession
of the capital sum so obtained, to give up regular employment, and
generally “muddle away” all the money in seeking to “invent” afresh,
while the remaining seventy-nine reap nothing by their invention but
disappointment, privation, and misery.
Abolish Patents, and these men would stick to regular work. They would
choose the service of employers who had a name for liberally rewarding
their workmen for ingenious and profitable inventions, and also for the
insight necessary to decide whether inventions were so or not. Employers
would vie with one another in getting such a name, and the whole tone and
level of the artisans would be perceptibly raised, while useful invention
would proceed faster than at present, because the certainty of moderate
rewards would stimulate men more than the remote chance of large ones.
No doubt you want facts rather than opinions. I can testify to this
much as to another branch of the subject: when there is an infringement
of a Patent, or supposed infringement, and an appeal to the law is
in prospect, it never occurs to either party to consider whether the
Patent-rights in question are good, bad, or indifferent. It is too well
known that the longest purse will win, and that whichever party is
prepared to spend most money will defeat and probably ruin the other.
Make any use you like of these notes.
Yours, very truly,
ANDREW JOHNSTON.
R. A. Macfie, Esq., M.P.
ON THE DISTINCTION BETWEEN COPYRIGHT AND PATENT-RIGHT.
The following is reproduced under a conviction formed by hearing, in the
recent debate, so much stress laid on the resemblance of Patent-right to
Copyright, that superficial views are very generally held and require to
be met:—
_Extract from “The Patent Question under Free-Trade,” 1863._
We may now, in order to clear away what has been to some a
stumbling-block—the argument from analogy founded on the case of literary
property—notice certain distinctions between the subjects respectively
of Patent-right and Copyright. Those things that belong to the province
of Patent-right are in their nature capable of being independently
discovered or originated, in the same identical form, by a plurality of
persons. Of this character are the principles of mechanism, processes of
manufacture, and forms or methods accordant thereto. Such, indeed, are,
as a rule, actually discovered or invented by several persons, and this
very often almost simultaneously. It is otherwise with things that belong
to the province of Copyright—literary and artistic combinations, books,
pictures, musical compositions, involving any degree of elaboration.
Such, at no interval of time, have ever been produced by even one other
person except a copyist.
This ground for differential treatment is connected with others. In
particular, the literary or artistic compositions of any person are
perfectly distinguishable from all those of every other. Hence the
Copyright privilege is conceded in the absolute certainty that the
grantee is their true and only originator, or first producer or creator.
No second person can come forward, after the Copyright privilege is
secured to an author or artist, and allege that the poem or picture he
composed also. To infringe Copyright means to slavishly or meanly copy
the work of another. To constitute infringement it is not sufficient
that the second person’s book has the same subject and the same purpose
in view, and is written in the same spirit as the first; the “matter”
must be the same, and in the same form. And so with pictures, the
subjects may be the same; the ideas may show great correspondence.
_Exactness_ of “matter” and of arrangement is everything. Patent-right,
on the contrary, may be infringed where there is no such exactness, and
no copying whatever, but complete originality. Disregarding form, it
forbids the embodiment and use of _ideas_, even of ideas entirely one’s
own.
We have thus the inconsistency, or paradox, that the exclusive privileges
which have for their province only material objects—which engage only our
bodily frame and those senses merely that have their exercise on matter
apart from mind (and this is all that patentable inventions do)—carry
prohibition into the region of ideas; while those other exclusive
privileges, in whose province matter serves only as a vehicle or excitant
of things immaterial—conceptions, memories, tastes, emotions—and as an
instrument to set the mind a-working and affect the higher senses and
faculties—make no such incursions, keeping entirely clear of interference
with any man’s practical use of ideas.