works, intended only for the eye or the ear, or inner man through these
senses—objects to be looked upon, listened to, thought of; not things
to be worked with or employed, nor things consumable, nor mere modes of
doing a thing, like the subjects of Patent-right. It has no regard to
processes, operations, implements. Therefore, unlike Patent-right, it
interferes not with manufacturers, artisans, miners, farmers, shipping.
Its sphere is in finished productions, works of art in their completed
state—objects that are permanent and unmistakable. Infringements,
therefore, are necessarily both manifest and of set purpose, whereas
infringements of Patent-right are often doubtful, even when the subjects
or results can be exhibited, and when the facts of the case are
assented to by all parties; and if it is a question of processes, its
infringements are often undetectable after the fleeting moment during
which they are alleged to have taken place. Further, as before said,
contraventions of Patent-right may be, and not unfrequently are, done
unconsciously or unwittingly.
MODIFICATIONS OF THE PATENT SYSTEM.
The following paper on Patent Monopolies is reproduced from the
_Liverpool Courier_, partly for the sake of presenting a past phase of
opinion with respect to the means of mitigating the injurious influence
of the exclusive privilege contained in Patents:—
At the Social Science Congress at Sheffield, in 1865, Mr. Macfie
read a paper on the following subject: “Long Restrictions on the Use
of Inventions, and Obligation to make heavy Payments to Patentees,
incompatible with free and fair trade.” He said:—
That the inventor has a right of use or property in his invention we
do not dispute; what we dispute is his _exclusive_ right. To give one
inventor such a right is to subvert the principle by denying the right
of other inventors, who may be as original, and have worked as hard, and
spent as much, but who, owing to a desire to perfect their achievement
a little more, or because they live in the provinces,—a day’s journey
further off,—come some hours behind, and so are only second or third
applicants for the coveted privilege. The State ought not, and cannot
in strict justice, give a right of exclusive property; that is, power
to meddle with others, and forbid them to use their valuable knowledge;
except in cases where _common_ use and enjoyment would diminish public
wealth or harm a previous possessor. If the land of England were
constituted common property, its productive value would be lessened,
and the present possessors would be harmed; therefore, it legitimately
is property. Knowledge may be, with the greatest benefits to mankind,
common. God has drawn this distinction between things material or
measurable (in which classification I include labour), and things mental:
between land, ploughs, and the like, and the art or knowledge how to
manage or make them,—that the one cannot be appropriated, and the other
cannot be unappropriated, without loss to our race. _En passant_, do we
conform to the spirit this constitution of nature may be held to commend
to man?
I will not detain you by controverting the arguments of those plausible
reasoners who class Patent-right with Copyright. Both, indeed, are
creations of enacting law. But there is this obvious and broad
distinction between them: that to grant exclusive privileges to an
author interferes with nobody else’s compositions, whereas to grant them
to an inventor continually conflicts with what others have done and are
doing. Nor shall we spend time in discussing the _merits_ of inventors.
These, we allow, may be great, and deserve public acknowledgment. What
ought rather to be discussed is the _kind_ of acknowledgment that is
most expedient. At present a very primitive mode of rewarding inventors
is alone the rule—monopoly. In old times, when political economy, like
the other sciences, was unknown, it was the easy, but at the same time
costly, way of endowing a court favourite to grant him an exclusive right
to sell or make some commodity. When, in the beginning of the seventeenth
century, all other monopolies were prohibited by law, those in favour
of introducers of _new manufactures_ were spared. This exception has
been found or made so expansible, that it is ruled to extend to minute
processes or instruments in existing trades, so that what was intended to
promote manufactures is now too frequently a hindrance. Thus the avowed
object of the exception, public good, is on the whole counteracted. What
we maintain is, that, admitting the monopoly attains to some extent that
object, the disadvantages preponderate over the advantages. We connect
this charge with another which is still more condemnatory, viz., that
these advantages, limited as they are, are obtained by compromise of
sound principle and by positive acts of unfairness, such as cannot be
alleged against our view of the case, which is, that these exclusive
privileges should be abolished.
The title of this paper says almost all I care to occupy your valuable
time with. It speaks of _restrictions_ in the use of inventions. Patents
impose restrictions, nay, prohibitions. They give an absolute monopoly.
Nobody but a patentee has a right to use a patented invention. It speaks
of _long_ restrictions. Patents impose their restrictions, or rather
prohibitions, for the long period of fourteen years, with occasional
prolongations of the term. To be denied the use of an invention for such
a length of time is, now-a-days (whatever it may have been of yore),
much like being denied it altogether. The title speaks of _payments_ to
patentees. These are made in all cases where the patentee allows others
to use his invention. It speaks of _heavy_ payments, because he has the
right to make them heavy, and he, in practice, makes them as heavy as he
can. It speaks of an _obligation_, and rightly, because a manufacturer
who uses a patented invention is under the necessity to pay whatever
the patentee demands or a jury awards, and competition may frequently
compel him to use it, under penalty of losing his profits of trade,
or his trade itself. It speaks of the payees as _patentees_, not as
inventors; because in many cases (how large a proportion I cannot say)
the rights are conferred on mere importers or appropriators of other
people’s inventions. The title further speaks of _free-trade_. This
freedom, which is something different from mere _libre échange_, ought to
extend to manufacturing and all kind of labour, as well as to commerce,
for, according to the great lexicographer, trade is “employment, whether
_manual_ or mercantile.” Of course it does not so extend when labour
is not free, but restricted and burdened. And it speaks of _fair_
trade—fairness is about as important as freedom. Will anybody say it is
fair to tax one manufacturer and let another go free? Yet this is what
Patents do. Those whom the patentee favours, or fears, or forgets, he
does not tax, or taxes lightly, while on others he lays a heavy hand.
But, worst of all, under the open competition to which the British
manufacturer is now exposed with all the world, he often has to pay
heavy Patent fees—often four, and sometimes, as I know, five, and even
six, figures deep—while his foreign rivals wholly escape. How can any
statesman, or member of a Chamber of Commerce, defend or palliate such
gross and grievous inequalities? Unfortunately, the start that the United
Kingdom has got in manufactures and shipping has done much to blind us,
and keep us from seeing the strides that neighbouring nations are making,
and has emboldened our legislators and financiers to make treaties,
in which we consent, as a nation, to run the race of manufacturing
industry weighted. The wise will call this _im_policy, perhaps _conceit_.
Let us not deceive ourselves; peculiar burdens on British traders
are incompatible with free-trade; more, and worse, they are flagrant
inconsistencies, subversive of our character for good sense, incompatible
with reasonable ground for expecting manufacturing prosperity. The cry
and principle so popular this day is belied when there is not a fair
field, and there is the opposite of favour. The cause of all these
evils and wrongs is the sticking to the exploded and illogical system
of monopoly, as if that were the best, instead of being, as we believe,
the very worst form in which acknowledgment can be made. We say enough
in condemnation when we characterise it as _despotic_, inasmuch as it
hands over British manufacturers, absolutely and without appeal, to the
exactions or prohibitions of patentees and assignees of Patents; as
_erratic_, inasmuch as in one case it occasions not gain but loss to the
favourite, in another it overpowers with enormous profit, frequently the
ill-luck falling to the most ingenious, and the extravagant remuneration
to men of slender claims; as _retarding_, inasmuch as it often causes
great delay in the introducing of inventions into use; as _preposterous_,
inasmuch as it hinders the perfecting of new inventions by preventing
the combination of the further improvements that others than the patentee
devise or might devise; as _illogical_, in this among other respects,
that through the far larger share which capitalists or purchasers of
Patents often get beyond the pittance that may or may not reach the poor
inventor, its action is but indirect and small compared with its cost
as a means of rewarding and stimulating inventors; as _inquisitorial_,
for it justifies the hiring of informers to report who and where are
infringers; as _unnatural_, for it takes away a person’s attention from
his own legitimate business, and divides it with the businesses of other
people whom he must watch or teach; as _cruel_, for the unhappy patentee
is continually liable to be engaged in costly, often ruinous law pleas,
far away from home, in order to establish the validity of his Patent and
to prevent infringements; as _extravagant_, because it gives patentees,
or rather costs the public (for it is but a small proportion of the
burden imposed that is the nett profit of the patentee) much more than a
better system would. It is also _partial_, as has been stated, for its
incidence is not equal on all British manufacturers, and it inflicts on
them the hardship of peculiar burdens not borne by rivals abroad; and in
this respect, as in the rest, it is _irremediable_, for equal treatment
is morally impossible at home and abroad. It is quite out of the question
to expect rectifying amendment in this particular, seeing only some
States grant Patents at all. Among those which do, some grant sparingly
or only to their own inhabitants; and to take Patents in all places where
they are granted would involve the command and risking of so very much
capital that few indeed, if ever any, would embrace the whole field;
and, if perchance they did, the labour of superintending a business so
vast, in languages so diverse and many, would require superhuman powers.
The right to demand “compulsory licences” as a mitigation was suggested
at the Liverpool Congress. They would be an improvement, and should be
practicable, seeing something of that nature exists elsewhere, although
the Royal Commission has reported against the plan. But it would be a
serious mistake to anticipate from their adoption as a reform any very
important relief. I hope it is possible to propose some substitute which
will not be liable to these reproaches, one which will give rewards
having proportion to merit, which will give them within a reasonable
period, which will entail little trouble or distraction on the nation’s
assumed protégé, the inventor; one which, being regulated by fixed
principles and controlled by officers who will sift the wheat from the
chaff, will satisfy the yearnings after awards having some proportion to
merit, which now are disregarded; and which, above all, will elevate
the inventor from what you will surely allow me to call his present
equivocal position—that involves little or no honour, and too generally
something approaching the very reverse—to a position that implies merit
and gives status. I do not speak of mere honours, whether in the form of
certificates or medals, or trifles, although all of these I recommend.
What I have submitted already to the association, in a paper to be found
in the Edinburgh volume, I repeat as still in my opinion practicable and
expedient—viz., to grant national rewards in money. I would allow these
to be claimed immediately after inventions are specified. It would be
the duty of a competent board, after due consultation and inquiries, to
award each a fair sum, within certain limits, such as prudence, combined
with liberality, would prescribe for their regulation. Or, the patentee
might prefer postponement of the adjudication for three years. This
should be allowed, or even encouraged, in order that time may be gained
for practical expression of the benefit conferred by actual use of the
invention. In that case, the reward should be ampler.
This system, I am persuaded, would be found in practice much less
expensive to the nation than the present system. So slight are the merits
of the majority of Patents that the State would have comparatively
little to pay; but the relief to manufacturers and the gain to commerce
would be very great; for, however unprofitable a Patent is, it may be
very effectual as a restraint and a burden. Such a system would sweep
away every hindrance to the immediate enjoyment by every one of every
invention, and to the combining with it every cognate improvement; a
great emancipation and stimulus would at once be felt to operate. If
other nations adhere to the antiquated Patent system which they have
borrowed from us, we would be happily invested, in competition with them,
with the immense advantage which the Swiss, for instance, enjoy over
their rivals, that of being free from Patents, yet knowing the inventions
of all other nations. But they would not adhere; on the contrary, they
would either totally free themselves from the encumbrance, and leave
us to pay the rewards, or (and this is more probable and would be more
honourable) they would join in international arrangements, in virtue
of which, every State contributing a little, inventors would receive
large emolument, and trades would rejoice with them in the advent of an
invention millennium, in the bliss of which workmen would share,—on whose
interests, by preventing them from benefiting by use of the knowledge
they acquire, Patents, I apprehend, act unfavourably.
I am aware that to persuade Government and Parliament to adopt national
grants would involve indefinite, perhaps long, postponement of the happy
year of release. Therefore I repeat another proposition, also already
submitted to you. It is this: To grant Patents much as heretofore (not
resisting any reformation that may appear expedient); but to enact
that, on the demand of any manufacturer, after three years of monopoly,
any invention may be valued—not, of course, on the basis of the return
which it might bring—but on that of its originality, the cost incurred
in working it out, its advantage, &c., whereupon it shall be lawful
for a Patent Board to extinguish the grant in any of the following
circumstances: 1. If the patentee’s books (which he should be obliged
to keep in all cases where his fees from any individual exceed £100 per
annum) show that he has already received in fees the valuation price. 2.
If manufacturers and others interested unitedly pay as much as will make
the price up. 3. If the State pay the remainder of the price, purchasing
the invention for the nation. And I would include a condition that any
one may obtain exemption for himself or his firm, by paying, say, a tenth
of the price.
And now, a kind word to the amphibious class of persons whom we style
inventors (we are most of us inventors, more or less, in some form or
other). Try to meet the legitimate demands of manufacturers; act in
consonance with the spirit of the age and the requirements of the time;
and remember how, by resisting conciliatory propositions, the great
agricultural, sugar-producing, and shipowning interests had to succumb to
enlightened doctrines, and accept a settlement far less accordant with
their pretensions. Manufacturers (with whom, as in like manner liable
to be affected, I class miners, farmers, shipowners, &c.) who employ
inventions in their businesses on a right system, ought not to regard the
patentee, still less the inventor, as an intruder and an obstacle in his
path. Yet that they in general do so regard these reputed benefactors
and auxiliaries is, I fear, too true. It is the fault of the system. Let
us be well disposed to a better, in which the interests and feelings of
both sides—for opposite sides they appear to be—shall harmonise. Either
of the plans I sketch would, partially at least, bring them into unison.
The only objection that I anticipate is that the amount to be received
will not reach the often, it must be admitted, extremely high ideas of
inventors. In so far as this objection is well founded, in consequence
of the rare merit of any particular invention—a case that does not arise
every year—it can be met by special votes, which I would be far from
excluding.
It may be regretted that the investigations of the recent Royal
Commission to inquire into this subject (most significant against the
present system is their report) were not more extensive and radical. This
arose from the purposely defective terms of appointment. The Liverpool
Chamber of Commerce has consequently asked Government, through the Board
of Trade (that department calculated to be so very useful, but somehow
in these days jostled aside, and scarcely seen or heard of in deeds),
to appoint a fresh commission which shall inquire into the _policy_ of
Patents. This request has had the honour of public endorsement (either
in that form or in the form of a Parliamentary Committee) by no less
an authority than the Right Hon. Chairman of the Commission, who also
stated to the House the remarkable and most encouraging fact, that doubts
like his own had sprung up in the mind of that eminent lawyer, Sir
Hugh Cairns, the very member who, almost in opposition to the late Mr.
Ricardo, a decided opponent of the monopoly, moved the address to the
Crown for the Commission. On the other side of the Speaker’s chair we
have law officers of the Crown, if I mistake not, impressed with the same
dislike, and among the Radicals we know that equally opposed were Mr.
Bright and the late pure and noble patriot Mr. Cobden. It is within my
own observation that candid inquirers, preimpressed though they may be in
favour of inventors’ claims and monopolies, reach the same conclusion. As
to the Continent, M. Chevalier, Swiss statesmen officially consulted, and
the German Congress of Political Economists, have strongly declared that
they are utterly opposed. The Social Science Association can, and I hope
will, as in the past so in the future, lend important aid to the cause.
Nobody is better fitted to reconcile those interests that unnecessarily
conflict, and to emancipate productive industry from trammels so hard to
bear, while also promoting invention.
The reader is also referred to the following lapsed
_Scheme submitted to the International Association for the Progress of
the Social Sciences at Brussels in 1863._
1. The principal States of Europe and America, with their colonies, to
unite and form a Patent Union.
2. Every capital to have a State Patent-office, in correspondence with
the offices in the other capitals.
3. Every invention patented in one of these offices to be protected in
all the associated States.
4. Each State’s Patent-office to receive copies of Patent specifications
lodged in the Patent-office of every other State, and to translate and
publish within its own territories.
5. The Patent to confer exclusive privileges for three years.
6. With these privileges is conjoined the right of granting licences.
7. An agent or assignee, fully empowered to negotiate for the patentee,
must reside in each State.
8. Commissioners shall appraise each invention at the end of the second
or third year (or later, if deemed advisable).
9. In estimating the value, the Commissioners shall be entitled to claim
the advice of practical men, and may take into view all circumstances
affecting value—such as the originality of the invention, and its
importance; the probability of its being soon made by another; the
expense and hazard of preliminary experiments and trials; the benefit it
is calculated to confer; the gain which use and licences during the three
years will bring the patentee.
10. If the patentee resign his monopoly before its term expires, this
concession to the public shall be regarded in the price.
11. The Commissioners shall adjudicate in what proportions each State
shall pay the price fixed, on the basis of population, revenue, or
commerce.
12. They may recommend a further grant, as an _honorarium_, in special
instances of singular merit.
13. Their valuation and grants must be framed on the basis of a total
yearly expenditure on inventions of not more than one million pounds
sterling at the utmost, from all countries of the union, of which sum,
however, no one country can be called upon for more than £100,000 in one
year, nor more than £1,000 for one invention.
14. The Commissioners shall be entitled to recommend for honorary medals,
ribbons, or certificates, real inventors of strong claims, especially
such as voluntarily shorten, or never exercise, the exclusive use of
important inventions.
OPINIONS OF THE PRESS ON THE DEBATE IN PARLIAMENT ON THE PATENT QUESTION.
_Leading Article from the “Times,” May 29, 1869._
Public attention has for some little time been withdrawn from the
consideration of the Patent-Laws; but, if we may judge from the
discussion upon the subject in the House of Commons last night, the day
is at hand when this branch of our legislation will be wiped out of the
statute-book. It is impossible to withstand the weight of authority
and reason advanced yesterday. It was all on one side. Mr. Macfie, the
newly-elected member for Leith, introduced the subject, and, incited
apparently by injuries he had himself suffered through the operation of
the Patent-Laws, argued very vigorously against them on theoretical and
practical grounds. He was not left unsupported. Sir Roundell Palmer,
who, had he consulted his private interest, would certainly have been
among the first to uphold a system productive of such immense pecuniary
benefits to the practitioners in the courts, seconded Mr. Macfie’s
motion for the unconditional abolition of the Patent-Laws in a speech
of the closest reasoning, supported by a vast array of facts which
had come within his own personal experience. He was followed by Lord
Stanley, who confessed that, against all his early prepossessions, he
had been convinced, when acting as Chairman of the Patent Commission,
that the abolition of the Patent-Laws was demanded on grounds of justice
and of sound policy. Two of the foremost representatives of law and
of statesmanship thus enforced the reform demanded by Mr. Macfie as
a spokesman for manufacturers. It is true that others followed who
opposed, or attempted to oppose, the arguments of Sir Roundell Palmer
and Lord Stanley. This was inevitable. Men who have not looked into
the question are in the same position as Lord Stanley says he himself
was when he first began to consider it. They are under the influence
of impressions they have never thought of questioning, and are biased
by supposed analogies, drawn from cognate subjects, the unsoundness
of which they have not investigated. Hence they protest, not without
vehemence, against an amendment of the law which is in conflict with
their own habits of thought, but they do not reason upon it. Analyse the
speeches delivered last night by Mr. Howard, Mr. Mundella, and, we must
add, the Attorney-General, and the residuum of argument contained in
them will be found to be very small indeed. They are all satisfied the
Patent-Laws have been useful to the nation, as people were once satisfied
that the Corn-law was the secret of our greatness. They insisted
that the abolition of the Patent-Laws would be a blow to our national
pre-eminence, just as their predecessors agreed in predicting not so long
ago that with the abolition of the Corn-laws Old England would dwindle
and decay.