possible, which baffle the ablest and most judicial minds possessing
the best attainable information, should read the debate which has just
taken place on the proposed abolition of the Patent Laws. The most
remarkable fact of the debate was the uncompromising attack upon these
laws by Sir Roundell Palmer, his eager advocacy of the opinion that they
should be at once abolished; but the most significant speech was made
by Lord Stanley, who exhibited perfectly the incapacity of reasonable
men to come to a wholly satisfactory judgment upon them. In fact, there
is a real balance of considerations which were almost exhaustively
stated by Lord Stanley. If you look at one set of facts, you see good
reason for conceding Patent rights; if you look at another set, you find
innumerable mischiefs arising from the concession; and there is hardly
any means of measuring which set of arguments preponderates. The motive
of granting Patents is _primâ facie_ very simple and unobjectionable.
You wish to encourage inventions, by which the wealth of the world is
so much increased, and you therefore promise inventors a temporary
monopoly of their use, on the single condition that the inventions shall
be made public. But for some such guarantee, it is said, many inventors
would have no temptation to rack their brains, and capitalists would be
afraid to help them in putting their ideas into a complete shape. That
invention, as a matter of fact, is to some extent encouraged, is certain,
though Lord Stanley hardly touched upon the point. On the other hand,
hardly any Patent-Law can do what it professes, while it is certain to
do much harm; and this is, at least, the character of our own law. The
rewards with which it tempts inventors are too often delusive, and they
at least would have small real cause to complain of its abolition. No
Patent brings its holder any immediate pecuniary right. He can only sue
people who infringe his Patent, and the costliness of Patent suits is
such that he is seldom able to protect himself. To make the property
worth anything, a capitalist must take it up; but the capitalist, in
doing so, stipulates for the lion’s share of the profit. Probably in
ninety-nine cases out of a hundred the reward was obtained by such
speculators, and not by inventors. This, of itself, we believe, would
not be a sufficient argument against conceding Patent-rights; but it
would certainly be sufficient, if inventors could be induced in some
less costly way to surrender their ideas to the public. Another reason
against Patents, stated by Lord Stanley—that the reward is usually but
of all proportion to the service rendered—is also a strong one, if
a better plan can be thought of; but the main reason, the injury to
third parties, is most serious. There is a great mass of well-founded
complaints as to Patents being traps for manufacturers. Improvements
and amendments in the details of machinery and manufacturing processes,
which would inevitably be come at by the manufacturers themselves, are
appropriated beforehand by inventors who do not possess in reality any
particular merit. Manufacturers, are afraid to make slight alterations,
for fear an inventor comes down upon them; but they never know but what
they may have to encounter an action for “something they have always
done.” Even inventors themselves suffer in this way. It commonly happened
that half-a-dozen men competing in the same line of business would come
almost simultaneously upon the same discovery; but if A was a week or a
fortnight before B, the latter was excluded from his own discovery. The
Patent-Law, then, not only does little real good to patentees themselves,
but a great deal of mischief to other people. Who is to decide whether
the balance of advantage to the public, through encouraging invention by
offering a rather delusive reward, exceeds the disadvantage of impeding
manufacture and preventing people from using what they themselves
discover?
Lord Stanley, though only recommending the matter for the “particular
handling” of the Government, inclines, on the whole, to the view that
the Patent-Laws do more harm than good; and we are quite disposed to
agree with him. The decisive consideration appears to be the unavoidable
abuse of Patents for inconsiderable inventions, or inventions of
simultaneous discovery. The hardship of excluding B from a discovery of
his own because A had patented it a week before, is such as to demand
the clearest proof of the expediency of the general law which deprives
him of the fruit of his labours. Where B is a manufacturer, led up to
the discovery by the necessities of competition and suddenly laid under
contribution by a stranger or a rival, the hardship is especially severe.
We are not sure but that to make any Patent-Law tolerably just, special
provision should be made for proof of simultaneous discovery, and either
compensation to all the discoverers by the patentees, or full liberty to
them to make use of their discovery. It is of equal importance, however,
that the amendment of manufacturing processes in detail should not be
checked; and perhaps the fact that the great majority of Patents now only
apply to what may be termed details is a main reason for abolishing them.
It is a simple monstrosity, to quote the case given by Mr. Scott Russell,
that every conceivable shape of a boiler should be patented, so that the
most obvious change of form, which some particular exigency obviously
suggests when it arises, should not be permissible to a manufacturer
unless he pays black mail to somebody else. If it is said that details
are often important, the answer is that manufacturers and inventors have
a sufficient stimulus with regard to them without a Patent-Law. The
pressure of competition and the large scale of manufacturing, which
make details important, are sufficient inducements to those interested
to find out something new, or encourage others to find out something
for them. Just because invention must usually come in the way of great
manufacturers, who can recoup themselves without Patents, Patents are no
longer necessary. Men like Sir William Armstrong and Mr. Scott Russell,
who are themselves considerable inventors, do not care for Patents,
except to guard themselves against the interference of others who might
take advantage of the present law to reap where they have not sowed. They
are quite content to let others alone, if they are let alone themselves,
deriving their profit from general excellence of manufacture, of which
any single process which might be the subject of a Patent is only one
out of many details, and perhaps not the most important. Nor do such
inventors conceal their detailed improvements, so that they are in no way
tempted to do anything for the advantage of the public by the present
law. It was observable in the debate that the defence of the present law
rested exclusively with representatives of probably the least important
inventors. Mr. Mundella’s assurance that working men are attached to
the present law, and that inventors of the working class would either
not be tempted to invent, or would be deprived of the reward of their
industry, was, in truth, the only argument in its favour. But it was
plainly insufficient. It would be necessary also to show that such
inventions are overwhelmingly valuable, so as to compensate for all the
injury a Patent-Law must do; but this was not, and we believe could not
be, attempted. The special case of poor inventors might be met by an
organised system of voting rewards to those whose inventions had been
largely adopted and used; but we should not frame an entire law, which
the public do not require, and which would work a deal of harm, in order
to suit their peculiar circumstances.
Such being the nature of the discussion, it is, of course, not worth
while saying much on the particular defects of the present law. But
there is hardly a single point where some alteration is not called for.
In particular, the Courts for trying Patent cases could be very much
improved; and additional obstacles might be interposed to frivolous
or entrapping Patents. One of the main reasons for total abolition,
nevertheless, must always be the impossibility of suggesting an amendment
for some defect which is not itself open to equivalent objections.
Nothing, for instance, seems so obvious at first sight than that the
present law might be amended by compelling patentees to grant licences.
Yet the Royal Commission which reported in 1865 was decidedly opposed
to this suggestion, after hearing all that could be said for it. There
is no means of saying beforehand what should be the maximum charge for
licences, while the moment this principle is introduced the special use
of a Patent as a stimulus to inventors is tampered with—the prospect of a
complete monopoly of which they are to make as much as they can. Similar
objections apply to any suggestion for cancelling Patents which are not
used in a year or two to some material extent. The best inventions,
requiring the greatest changes in manufacturing machinery, are often
the slowest to come into operation. For the same reason, it would also
be impracticable to compel patentees to grant licences at fixed maximum
rates after their Patent had been two or three years old. It might be
just as impossible then, as at first, to say what the licence fee should
be. If we are to have a Patent-Law, then we can have no substantial
improvement upon the present one; and it is so bad that it can hardly
last. Perhaps there is at present a deficiency of evidence on the
subject—the workmen not having been heard before the last Commission, and
the information presented as to the Patent-Laws of other countries and
their working being very deficient; but though this may be a good reason
for having another inquiry, we anticipate that it will only confirm the
verdict of impartial judges against the present system.
_Extract from the “Saturday Review,” June 5, 1869._
If the interesting debate on Mr. Macfie’s motion proved, what scarcely
needed proving, that our existing Patent-Law is extremely unsatisfactory
in its working, it equally proved that the arguments against having any
Patent-Law at all are not less unsatisfactory. If it were practicable to
discriminate between true and sham discoverers, and to ascertain with
accuracy to whom the merit of every new invention really belonged, and
if it were at the same time easy to secure to the man who increased the
common stock of useful knowledge the fruit of his own brain, no one would
dream of questioning the moral claim of an inventor to this peculiar kind
of property, any more than we now question the justice of giving to an
author a copyright in his own work. But when it is found, or supposed,
to be extremely difficult to do justice to one man without causing
much inconvenience and some occasional injustice to a thousand others,
there is a strong temptation to sacrifice individual rights to public
expediency. The advocates of a total repeal of the Patent-Laws generally
insist (as Sir Roundell Palmer did in his ingenious speech), not only
that they do a great deal of indirect mischief, but that the discoverer
of the most invaluable invention has no claim to any reward except the
consciousness of having enabled a number of other men to make colossal
fortunes. That such arguments should be used at all proves little more
than an uneasy consciousness that the proposed repeal would work a
certain amount of real injustice. Men who are strongly impressed with the
expediency of ignoring the claims of inventors struggle to escape the
reproach of injustice by stoutly denying the rights which they desire to
disregard. We would rather see the subject discussed with more courage
and frankness. There are undoubtedly instances in which private claims
must yield to public expediency, and any persons who think the case of
inventors to be one to which this rule is applicable would do better to
say so openly than to try to persuade themselves and others that those
who have created the means of making wealth have no claim to share in the
fruits of their discovery. Sir Roundell Palmer affected to dispose of the
whole difficulty by saying that there were essential differences between
Copyright and invention; but a principle is not the less sound because
you may illustrate it by a case which is not on all-fours with that to
which you apply it. And the distinctions between Copyright and invention
are by no means so radical as is sometimes assumed. The Copyright-Laws
give an author a special monopoly because it is conceived that the
production of a new work entitles him to a return proportioned to its
merit, as tested by the demand for it in the market. The Patent-Laws give
an analogous monopoly to an inventor on precisely the same moral grounds.
To say, as Sir Roundell did, that a book was a new creation, whereas an
invention was merely the application of the facts and the laws of nature,
which are common property, was to speak like a lawyer rather than like
a philosopher or a man of science. Whatever other distinctions may be
insisted on between Copyright and invention, this, at any rate, will
not bear a moment’s examination. It may have a colour of plausibility
in the case of a poem, a play, or a novel, though even there it is not
altogether sound. But literature includes history, science, philosophy,
mathematics, and the like; and every book on these and most other
subjects, so far as it has any value, is based entirely upon facts and
laws which are no more the creation of the author than are the facts and
laws on which an invention may be founded. In each case there is creation
in the same qualified sense. Say that a man creates what he reveals, or
what he proves, and the author and the inventor are equally entitled to
be called creators. Say, on the other hand, with perhaps more accuracy,
that to proclaim a previously unnoticed truth is only to announce what
has all along existed in nature and nature’s laws, and some more modest
title than creator must be assumed by author and inventor alike. The
difference between the two cases is not a difference of principle, but of
convenience. The thing created, either in the book or the machine, is the
thought or the method; but property in a thought or a method is not what
the law allows in either case, simply because it would be impossible to
give an effect to such an enactment. What the law does is to lay hold of
the most profitable mode of using the idea, and say that for a limited
time no one but the originator shall be at liberty, in the one case, to
print the book or a colourable imitation of it; or, in the other, to
manufacture or use the machine or any colourable imitation of that. It
is impossible, we think, to deny the abstract right of a real author or
inventor, and more palpably impossible to deny it in the one case while
you admit it in the other.
Apart from his abstract reasoning, there is much in Sir Roundell Palmer’s
argument to show wide differences in practice between the cases of
authors and inventors. It is undoubtedly true that in a vast majority
of instances the patentee of an invention is not the person to whom the
largest share of the merit belongs. The rule, equally in scientific
discovery and in practical invention, has almost always been found to be
that, when a great step in advance is completed, no one man can claim the
entire merit. If one wins the race, there are mostly several competitors
who get a place. Even Newton had rivals treading on his heels, and his
great discoveries would not have been lost, though they would certainly
have been delayed, if his marvellous intellect had never been directed to
science. The thought of the world, as represented by a little cluster of
inquiring minds, was fast ripening for the harvest which Newton was the
first to reap. But no one on this account seeks to deprive Newton of his
glory. And we do not see why the pioneers of practical invention should
be deprived of the reward for which they work merely because what they
have done is but to forestall what would have been accomplished, sooner
or later, without them. The real vice of the Patent-Laws is that they
give a full fourteen years’ monopoly to the first inventor who proclaims
himself, even though it may be clear that he has not a week’s start of
a host of competitors. In order to make sure of adequately rewarding a
very few real benefactors of mankind, you give an inordinate privilege
to a great many who have done nothing at all in proportion to what they
receive; and not only do you prohibit every one from borrowing the
patentee’s ideas, but you actually forbid a second inventor, who has
arrived at the same result without ever having heard of the first, to
make any use for fourteen years of the conclusions which he has worked
out by his own unassisted thought and labour. This, of course, is a gross
injustice, and the opponents of the Patent-Laws say that no machinery
can be devised by which it can be escaped. Another serious objection to
the system, as worked in this country, is the indiscriminate grant of
a Patent to any one who claims it, leaving it to future litigation to
determine whether the Patent is good or bad. The Law Officers of the
Crown receive an enormous amount of fees for Patent business, and it is
their function to determine in the first instance whether a _primâ facie_
title to the privilege is made out. It might be supposed that, if the
identical invention has been patented or publicly used before, or if,
on the face of it, it is no invention at all, the application would be
refused. Nothing of the sort happens. No examination of the records at
the Patent-office takes place to ascertain the existence or non-existence
of earlier Patents for the alleged discovery; and even when there is an
opposition, and it is clearly proved (as in the case of the bullet which
Mr. Metford devised and Mr. Whitworth afterwards patented) that there is
nothing new in the invention, the Patent is allowed to go, in order that
the claimant may have the privilege of a jury to try an imaginary right.
This is the way in which the crop of litigation is raised which is so
often pointed to as a reproach to the law. The present Attorney-General,
it seems, has introduced the innovation of rejecting the claims of
patentees where the alleged inventions are palpably frivolous, but
something much more decided than this is needed to make the preliminary
investigation of any real value. The vast number of worthless and
catching Patents taken out merely as traps for manufacturers is perhaps
the greatest nuisance incidental to the system, but it is by no means the
most difficult to suppress.
All these evils must be cured, or sensibly abated, if the Patent-Laws
are to survive; and if this is to be done at all, it can only be by
an effective preliminary inquiry. That there are difficulties to be
encountered in such a scheme cannot be denied, but it is not yet shown to
be so complete an impossibility as Sir Roundell Palmer assumed it to be.
With the best machinery a few Patents would slip through which, on closer
investigation, would be held to be bad; but even the clumsiest methods
of _bonâ fide_ inquiry would have sufficed to weed out some ninety per
cent. at least of the existing Patents. A mere search by proper officials
at the Patent-office, with the aid of the excellent indexes which they
possess, would settle the fate of the great majority of applications,
and the opposition of rival inventors or manufacturers would expose
a great many more if it were not understood, as it is now, that any
opposition before the Law Officers is a mere waste of time. Under the
existing system we have a tribunal which is not, as a rule, competent
for the work, and which makes no real effort to do it. The Law Officers
give up the investigation in despair; but it by no means follows that
a scientific tribunal, with all the aids which the Patent-office could
supply, might not be found extremely useful. The experiment, at any rate,
has not been tried; and it is scarcely fair to inventors to deprive them
of all protection merely because a perfunctory inquiry by an unscientific
and busy lawyer may have failed to exclude from the list of patentees a
formidable body of mere impostors.
We take it to be quite clear that the attempt to do justice ought not to
be given up until the impossibility of putting the law on a satisfactory
footing is clearly made out. Mr. Mundella is probably as ingenious as
most manufacturers, but he says that all the inventions in which he
is interested came out of the brains of his workmen, and that they
are sharing with him and the public the benefit of their discoveries.
Apart from the serious inconveniences caused by the law as it is now
administered, no one could desire to confiscate the ingenuity of
artisans for the benefit of master manufacturers. As matters stand now,
a poor patentee is generally helpless to turn his invention into money
without the assistance of a capitalist; but to allow a master, because
he is rich enough to use an invention, to pick the brains of a clever
artisan without making him any acknowledgment, would be to aggravate the
plutocratic tendencies of the age, which most serious thinkers would
gladly mitigate as far as possible. The product of invention and thought
is a very difficult kind of property to protect, but it is not on that
account the less deserving of protection, if any means can be devised for
granting it without too grave an interference with the commercial freedom
which public expediency demands. The subject requires a more searching
investigation than it has yet received. Lord Stanley’s Commission
scarcely touched the root of the matter, and no attempt has even been
made to test the feasibility of such suggestions as the report contained.
It is for those who attack the law to make out a conclusive case, not
merely against the particular system in force, but against every possible
scheme for securing to inventors the benefit of their own work. And this
has certainly not yet been done.
EXTRACTS FROM RECENT CLASS PERIODICALS.
Along with some true light and sound sense, the shifts to which advocates
of Patent restrictions are put when they venture upon argument, and the
boldness with which advances are being made on the path of monopoly in
the face of attack, may be deduced from the following extracts picked up
at a glance in current periodical class literature:—
A GOOD ILLUSTRATION AND BAD ARGUMENT.
However absurd it may appear, a valid Patent has been for fourteen years
granted, which gave a monopoly to one person to make all the pins for
all our railways. I should have thought that the use of wooden trenails
to fasten materials together, to have been of ancient date, but for this
Patent. That existing Patent-rights are, to some extent, obstructive
to the “right of way,” is just as true as that the right to enclose
common land is so. The natural remedy, in both instances, is to reserve
“a right of way” to the public, not necessarily a free right, but one
open to all, on payment of a reasonable toll in the latter, and of a
reasonable royalty in the former case. With more show of justice, might
the enclosure of common lands be prohibited than Patent-rights for
inventions be refused, for the common lands were not only discovered, but
in human use before enclosure, which is more than can be said of any true
invention.—_Extract from “English Mechanic,” July 2, 1869._
GROWTH OF STRANGE VIEWS AMONG SURGEONS.
A change in the views of English medical men is perceptible on the
question of the propriety of a surgeon taking out a Patent for an
instrument he has invented. Although we have always felt it the duty of
a physician who subscribed to a fixed code of ethics to abide by its
regulations, and therefore have always opposed, on technical grounds,
the taking Letters Patent on improvements in surgical appliances, we
freely grant that there is no _à priori_ immorality in the act.... If
we read Dr. Chapman’s letter to the _British Medical Journal_, we find
that he there says: “I have been informed that soon after Dr. Richardson
invented his ether-spray instrument, Her Majesty’s physician, Dr.
Jenner, said, if he were Dr. Richardson, he would patent the instrument.”
And further on we read, “Before I patented the spine bags, I consulted
the President of the College of Physicians, Sir Thomas Watson, and the
head of the Privy Council, Mr. Simon; and both these gentlemen expressed
the opinion that I was justified in doing so.” Such quotations, in
our humble opinion, show that Dr. Chapman is, in all probability,
right, and the majority of the profession wrong, in objecting to his
patenting an instrument which is by no means mysterious or secret. We
shall not be sorry to see this frank admission gain ground with the
profession in this country, and the prohibition of patenting instruments
reconsidered.—_Medical and Surgical Reporter._
WHAT PRELIMINARY INVESTIGATION REQUIRES.
... To diminish the period for which he shall be allowed to retain his
exclusive right.... If a gratuitous privilege of five years’ duration be
a sufficient price for John Bull to pay inventors for inducing them to
make their inventions Patent, I know no just reason why he should pay
more in the form of monopoly price for that which he can purchase for
the shorter term.... To enable an efficient preliminary investigation
to be made with facility, either by individuals, or by the official
examiners, I propose to compile a history of inventions, discoveries, and
processes, for one rather more full and modern than Beckman’s would be
required. I have long advocated the compilation and official publication
of this great work, for it is not nearly enough for this purpose to have
only a classified abridgment of the specifications of English or British
Patents. In addition to this, besides all foreign Patents, a brief
classified description of the million things formerly and now being done
and suggested is almost absolutely necessary to enable either official or
private investigators to arrive at anything like a probable resolution of
the question, if a given thing it is proposed to Patent is new.—_Extract
from “English Mechanic,” July 9, 1869._
HARD PUSHED FOR A DEFENCE OF PATENTS.
(Extract from Leading Article in “_Engineer_” of July 9, 1869.)
In a civilised state, we say, everything is property that is the fruit
of a man’s own intellect, and if the law does not make it property, then
the law, not the principle, is to blame. Advocates for the abolition
of Patent-Laws consider the following as one of their most powerful
arguments: They say that if inventors would restrict themselves to the
initiation of inventions great and good, there might be some plea for
the concession of reward through monopoly or otherwise; but the fact is
otherwise. It suffices to take the most cursory glance at Patent records,
they say, to be made aware that processes great and good constitute but a
very small minority of those on behalf of which Patent fees are paid and
the rights of monopoly claimed.