is, that if we retain them at all they must be retained in their present
form. The amendments admissible in their machinery are not important,
and the recommendations of the Royal Commission some years ago were
so slight that it has never been thought necessary to carry them into
effect. What is the scheme of the Patent-Laws? A man discovers, or
believes he discovers, a new process of accomplishing some useful result.
He registers his supposed invention, and acquires a provisional right
to its exclusive use for a definite number of years. After a time he
finds some other person using his invention, and applies to the courts
of law to prohibit him. The alleged infringer of the Patent says that
the assumed discovery was no discovery at all, or that it was of no
public benefit, or that he is not making use of it, and the questions
arising on these issues are then tried. This is a condensed statement
of the whole working of the law as it stands. No substitute for it can
be recommended that will bear examination. It is sometimes said that an
inventor should be required to prove the originality and utility of his
invention at the time he makes his application to be registered. But who
could examine such a claim? A court of law may, after much trouble and
caution, declare that a claimant is entitled to a piece of land, because
the claimant, by exercising rights of ownership over it, gives notice in
a very palpable way to all other claimants of the property, though even
then the court takes extreme pains that the rights of absent or infant
persons may not be abridged. But, when a man claims an invention, by
what possible process could notice of his claim be brought home to every
man in the kingdom? Whoever will consider the matter will be forced to
the conclusion that all the State can do is to tell an applicant that
he shall be protected in the use of his invention provided he shall be
able, whenever occasion arises, to establish its originality and utility
against any one who may arise to contest them. The same considerations
which negative the suggestion that a claimant could receive an
indefeasible title, also negative the proposal that the claimant should
be compensated by a money grant at the outset. If the originality of his
claim cannot be proved, payment for it cannot be made, even if there
existed at that incipient stage any means of determining its value.
The present system of Patents must be retained if Patents are to be
preserved, and the evils of the system flow directly from it. It is
impossible to diminish appreciably the litigation attendant on Patents.
Sir Roundell Palmer referred to the paraffin oil case, which occupied
the Court of Chancery fifteen days. Nor could this be avoided, for the
novelty of the process of distilling paraffin was the point contested,
and to decide this it was necessary to examine the exact stage of
discovery to which a dozen different investigators had advanced, all of
whom were trying simultaneously, but independently of each other, to
distil paraffin oil so as to make it a commercial product. The expense
and uncertainty of Patent litigation being unavoidable, the cardinal
defect of the system, that the reward it offers hardly ever goes to
the right man, follows. The inventor is at one end of the scale; the
transferee or licensee of the Patent is at the other, and while the
latter reaps enormous gains, the inventor often has the reflection that
it was he who made the discovery for his sole reward. The second great
fault of the system of the Patent-Laws is an effect equally inseparable
from it. These laws constantly inflict the most grievous injustice on
innocent persons. Mechanical and chemical discoveries are not made
by unconnected jumps. The history of science and of invention is one
of gradual progress. A hundred different persons are pursuing their
investigations on the same subject independently of each other, and
are all nearing a particular goal, when some one man reaches it a few
days before the others. The law which gives him a monopoly denies to
the rest the fruit of their exertions. It is needless to refer to the
numberless instances in which inventions have been discovered so nearly
simultaneously that the real inventor cannot be ascertained; and it is
impossible to deny that to give a monopoly to the man who is the most
prompt to register his claim often inflicts a grievous wrong on the
investigators who accomplish the same results in perfect independence of
him. So far we have spoken only of primary discoveries. The secondary
Patents, as they may be called, were rightly denominated by Sir Roundell
Palmer unmitigated evils, and, according to the same high authority, they
exceed in number Patents of importance in the ratio of a hundred to one.
A person suggests some small improvement in the course of an elaborate
manufacture, and takes out a Patent for it. Henceforth he blocks the
whole trade. He cannot be got rid of, and it is not easy to deal with
him. He is quite conscious of the obstacle he creates, and in the end
he is probably bought off by some great manufacturer in the line of
business affected by the discovery, who, by accumulating in his hands
the inventions, good and bad, connected with his occupation, monopolises
that particular branch of trade throughout the country.
The strength of the existing Patent-Laws lies in the vague belief of
those who have not considered the subject that it would be unjust
to deprive a man of the benefit of his discoveries. Those who are
impressed with this elementary notion may be asked to reconcile it
with the undeniable fact that the Patent-Laws do deprive, in the way
we have shown, many men of the benefit of their discoveries; but a
little reflection will convince them that their argument rests on a pure
assumption. No man would be deprived of the benefit of his discovery
because he did not receive a monopoly of its use. His own discovery
would be his own discovery still. As long as he is allowed to employ his
own inventions in any way he thinks proper he cannot be said to suffer
any deprivation of a right. The truth is, that the Patent-Laws are a
voluntary addition to our legislation based upon no such obligation as
underlies the ordinary laws of property; and they must be justified, if
they can be justified at all, as gratuitous creations of the Legislature,
by proof that they produce some national benefit. It is from this point
of view that we see the difference between the laws of Copyright and of
Patents. They agree in being added on to what may be called the body
of natural law, but the reasons in support of each are not the same,
and the objections which apply to the law of Patents do not apply to
the law of Copyright. The monopoly granted to an author does injustice
to no one. The monopolies granted to patentees do injustice to many.
Patents are creations of positive law, and must be judged accordingly.
The Attorney-General approves them because they are designed to multiply
inventions, although he admits that the multiplication of Patents is a
serious evil. A sounder judgment will condemn them because of the evils
necessarily attendant upon them; and we have no fear of what would happen
to the course of invention or the progress of the country if they were
abolished, and the inventor allowed to make such use of his invention as
he may be advised. Inventions co-exist with Patents, but the experience
of Switzerland is sufficient to show that they would abound if Patents
did not exist, and the decline of commercial greatness with which Mr.
Howard threatens us should Patents be abolished may be treated like so
many other prophecies of evil which have been happily neglected and
remain unfulfilled.
_Leading Article from the “Economist,” June 5, 1869._
It is probable enough that the Patent-Laws will be abolished ere long,
though the full force of the real objections to them was perhaps not
brought out in the debate last week on Mr. Macfie’s motion for their
abolition. Sir Roundell Palmer was too metaphysical. The supposed
distinction between the copyright of a book and a Patent—that no two men
will hit upon the same composition even in substance, while they will
hit upon the same idea for an invention—does not prove anything. If a
case of general utility could be made out, the abstract justice of giving
a man the monopoly of an idea, should he be the first to come upon it,
would not be much considered. Lord Stanley, who avoided this mistake,
dwelt too much upon such minor points as the practical failure of the
law to secure a reward to the inventor and the frequent disproportion
between the reward and the service rendered, which are points of _no_
consequence so long as the public is generally a gainer by the law. Lord
Stanley, however, touched upon the true reason when he referred to the
injury of third parties, which the present law occasions, by reason of
Patents being granted to only one out of half-a-dozen persons who come
upon the same inventions, or to one of a series of inventors who improve
upon each other’s work, and by reason also of the general interference
with manufacturing. What we should have liked to see fully stated was the
peculiarity of the present circumstances of the country in which these
things are true. The statements in fact amount to this—that there is a
large number of inventions which Patents are not required to encourage;
that these are made as ordinary incidents of business; that invention,
improvement of mechanical and chemical processes, is itself a part of a
manufacturing business; and that in this way the granting of Patents only
impedes manufacturers to whom inventions would naturally come. The full
force of these facts cannot be felt unless we recognise that a change in
the character of invention has taken place. The Patent-Laws were intended
to apply to different manufacturing circumstances from those which
now exist, and were based upon different notions about invention; the
objection to them is that they either are, or are becoming, out of date.
A little consideration will show how true this is.
Let us look first at the notions still customary about inventors and
inventions which are derived from past circumstances. The popular idea of
an inventor is of a man who makes an immense addition to the real wealth
of the world—who invents the steam engine, or the spinning jenny, or the
Jacquard loom, or the hot blast—almost revolutionising the material
powers of mankind. The idea associated with his work is in any case that
of great novelty in means coupled with great accomplished results. Now
there are various reasons why these should not be the characteristics of
modern inventors and inventions, as we see they are not. It might be true
that there are still as many inventions of real novelty and magnitude as
ever, though we doubt if there is; and yet there would be circumstances
which prevented a legislator regarding them as most important. One of
these circumstances is certainly the exaggerated importance of minor
improvements, in consequence of the great development of machinery
and manufacturing. A single improvement to save 10 per cent, in fuel
for the steam engine would probably add more absolutely to the real
wealth of this generation than the invention of the steam-engine itself
added to the real wealth of the generation in which it was invented. A
recent invention just spoken of—the feathering of the blades of screws,
increasing the facilities of using auxiliary steam-power in ships—might
compare on the same footing with the most substantial invention of a
poorer age. Just as the refinement of the machinery of credit, and the
extent of its development, cause the least disturbance to be widely felt,
so the least improvement in mechanical or chemical knowledge, applied to
manufactures, may have great results. A revolutionary invention—owing to
the difficulty of introduction—might not tell so quickly even as a minor
improvement in an existing groove; but, in any case its effects will now
be matched at the first start by these minor improvements.
These improvements again, as well as the great inventions themselves,
are usually come at in recent times in a different way from that of the
old inventor. Formerly the inventor had almost nothing, before him—every
department of industry had to be built up from the foundation. Now a
man must build upon extensive knowledge of what has been accomplished,
and must have great means at his command. What Mr. Mill has just been
explaining in his new book in regard to original authorship in the
present day is equally true of invention: “Nearly all the thoughts which
can be reached by mere strength of original faculties have long since
been arrived at; and originality, in any high sense of the word, is
now scarcely ever attained but by minds which have undergone elaborate
discipline, and are deeply versed in the results of previous thinking.
It is Mr. Maurice, I think, who has remarked, on the present age, that
its most original thinkers are those who have known most thoroughly what
had been thought by their predecessors; and this will henceforth be the
case. Every fresh stone in the edifice has now to be placed on the top
of so many others, that a long process of climbing, and of carrying up
materials, has to be gone through by whoever aspires to take a share in
the present stage of the work.” That is—when we speak of invention—the
inventor must be a man who is closely associated with capitalists,
or be a capitalist himself. In no other way can he have the means of
knowing the thousand improvements of machinery and processes which have
culminated in the present factories and machines; and in no other way
can he find means for experiments on the necessary scale. “Poor men,”
says Sir William Armstrong, “very often come to me imagining that they
have made some great discovery. It is generally all moonshine, or if it
looks feasible, it is impossible to pronounce upon its value until it has
passed through that stage of preliminary investigation which involves all
the labour, and all the difficulty, and all the trouble.” How is a poor
man to get this preliminary investigation undertaken, when the subject
is an amendment of a complicated manufacturing process? The complaint,
in fact, was made before the Select Committee on Technical Instruction,
that English manufacturing was suffering from foreign competition,
because there is less room now than formerly for the play of “untaught
invention.” The machine is too perfect for the workman to meddle with;
and thus the foreigner, supposed to be more technically instructed, has
room to excel us—our peculiar power having been “untaught invention.”
Such having been the change in the character of invention, it is easy to
see why the Patent-Laws are not only not needed, but are obstructive.
The inventor, in the first place, is not in the position of an old
inventor. To give him scope he must be employed by a manufacturer
or capitalist—that is, his skill must be already highly valued, the
manufacturer naturally employing those who can introduce amendments
and improvements, and keep him abreast or ahead of competitors. “I
believe,” says Sir William Armstrong, again, “that if you let the whole
thing alone, the position which a man attains, the introduction and the
prestige, and the natural advantages which result from a successful
invention and from the reputation which he gains as a clever and able
man, will almost always bring with them a sufficient reward.” And again:
“I think that absolute discoveries are very rare things; nearly all
inventions are the result of an improvement built up upon a preceding
one. A poor man who has the ability to make really practical improvements
is almost sure to rise in the world without the aid of Patents.” And if
the inventor may be thus indifferent to a Patent-Law, the question as
to the inducement to capitalists to take up inventions may be settled
by their general objection to Patents. Though there are one or two
manufacturers who have monopolised a number of Patents in their trade,
and so turned the law to account, it is from them that the greatest
complaints come—men like Mr. Platt, or Mr. Scott Russell, or Mr. Macfie,
who has just moved the abolition of the laws. The truth is, capitalists
are now in a position to obtain a profit without a Patent—just as they
can sometimes disregard a Patent for a long time till competition forces
it upon them. Patents, then, are not required as an inducement either to
inventors or capitalists, and the reason of the law fails.
But this is not all. The complaint of manufacturers at the obstruction of
the present law would not be enough by itself, but it is a very serious
matter when invention is part of the business of manufacturing. The law
of Patents, in short, interferes with what has become the normal process
of invention. Mr. Platt states: “I think that there is scarcely a week,
certainly not a month, that passes but what we have a notice of some
kind or other of things that we have never heard of in any way, and do
not know of in the least that we are infringing upon them.” Sir William
Armstrong complains of a personal grievance: “The necessity which I am
under of taking out Patents, not for the purpose of obtaining for myself
a monopoly, but simply for the purpose of preventing other persons from
excluding me from my own inventions.” And much similar evidence was given
before the Royal Commission, of which Lord Stanley was chairman. Thus the
present law is not wanted to promote invention, and it is injurious to a
kind of invention which would go on luxuriantly without it. The gradual
nature of most inventions is a sufficient security that it will proceed
under the law of competition. Perhaps the practice of Government is the
best indication of the necessity for the abolition of Patents. A few
years ago the manufacturing departments of Government found themselves
so hampered by Patents that they resolved to try whether they were bound
or not, the result being a legal opinion that they were not bound. But
Government is only a great manufacturer, its work in some departments
being less than in many private businesses. Is there any reason why
Government should be released, and individuals bound to patentees? As
to the supposition that invention will cease, the mere interest of the
Government in paying for anything worth having is found a sufficient
stimulus to invention in the things which it requires; and so it is
assumed will be the interest of competing manufacturers.
There is a universal agreement, moreover, that no Patent-Law should
cover all the inventions which are now covered. It happens that the
strongest condemnation of things as they are before the Royal Commission
came from witnesses who wished a change, though none suggested anything
which commended itself to the Commission. The idea seemed to be that
a separation could be made between substantial inventions and the
improvements or amendments which are now so important, but are admitted
to be unsuitable for Patents. It was thought that Patents, instead of
being granted indiscriminately, should only be granted in cases of proved
novelty and utility. But no working plan of a court to do this could be
devised, or one which would not probably discourage inventors as much as
the abolition of Patents altogether.
We come, then, to the conclusion that it is for the general interest
that Patent-Laws should be abolished, and that their abolition will do
no great harm to any one—least of all, to the great mass of inventors or
improvers. Perhaps we may point out that, if the circumstances are as
described, this country has a special interest in abolishing such laws.
As the leading manufacturing country in the world, a Patent here is
likely to be worth more to its holder than anywhere else; consequently
our manufacturers are more exposed than any others to the interruption
and worry of Patents. It may well be that other countries which are less
tempting to patentees will find the balance of competition weighted
in their favour in consequence. Looked at another way, the more that
invention falls into the hands of great capitalists, the more likely is
it to strengthen the manufacturing of a country which is already most
powerful. The normal condition of things is all in our favour, and we
should do nothing to thwart it.
_Leading Article from the “Spectator,” June 5, 1869._