and good inventions, by comparison with the obviously trivial claims, is
very small indeed; but we altogether fail to perceive what legitimate
source of grievance this can be to the public. On the contrary, it
seems to us demonstrable that under a competent system of Patent-Law
organisation the fees accruing from these claims of trivial intrinsic
import might be utilised and made to fructify. The surplus thus accruing
might be used in diminution of existing Patent fees, in establishing
a museum of inventions creditable to the nation and the epoch, and in
other ways conducive to the development of invention in general.... Our
own experience points to many cases like this; wherefore we are assured
a proposition of some not wholly averse to Patents, whereby they would
establish courts of preliminary investigation to determine whether any
given process should be deemed worthy of patenting or not, would be
altogether futile.
According to our way of viewing the case, the registration of inventive
novelties should be encouraged on other grounds than that already
specified. We hold the record of failures to be of, at least, equal
importance to the record of successes. Anybody who has given much time
to promote invention will, we are sure, coincide in our opinion, that
the knowledge of what others have been unable to accomplish in some
particular line of invention is one of the most likely conditions of
his own success. This collateral value of failures does not seem to
have been heeded by those who are most prominent amongst the advocates
of Patent abolition. From matters of undisputed non-success, we pass
now to the consideration of others confessedly of some value, but the
importance of which is trivial. In respect to such it is argued by Mr.
Macfie that they much embarrass the manufacturer by needlessly stopping
the way until terms can be come to with the inventor. The plausibility
of this reasoning we fail to see. Does not the assumed worthlessness
of an invention of the series contemplated bar the need of coming to
terms with the inventor at all? What manufacturer in his senses would
treat for the use of an invention that he knows to be worthless—such
foreknowledge being a postulate on which the argument is raised, and on
which the objection turns? The national value of a readily-accessible and
classified record of invention must be obvious to all. Those who would
desire to uphold the Patent-Laws, and those who would wish to abolish
them, must alike coincide in this point. We insist upon this part of the
subject all the more strenuously from the conviction that the upholding
the abrogation or modification of the Patent-Laws will turn, after all,
on considerations of public expediency, not on considerations of right
and wrong to individual inventors. This being so, the collateral value of
Patent-Laws, in establishing a record of inventive progress, cannot be
too prominently kept in view.
PATENT RIGHTS AND PATENT WRONGS.
Sir,—On page 279, in speaking of steel rails, you say: “Could a better
result than that achieved by Mr. Bessemer, and by those who hold licences
under him, have been arrived at under the ‘No-Patent’ system?” Decidedly
not, for it has landed them in wealth; but I will suppose a by no means
improbable case. Suppose Belgian manufacturers had secured Patent-rights
in England, and demanded a royalty preventing English manufacturers from
selling their steel rails, as you state, under 12_l._ per ton, when
without such royalty they could be sold at 9_l._ per ton. Now, the case
would stand thus: the Belgian manufacturers could be supplying the world
with steel rails at 9_l._ per ton, while the English manufacturers were
prevented _by their own laws for fourteen years_ from manufacturing them
under 12_l._ per ton, although all the materials were lying at their
doors, and both masters and men wanting the work. If England wishes to
maintain her position in the trading and manufacturing world, monopolies
and prejudice must be things of the past....
You will say the inventor has a right to the invention. Granted; there
were no laws to prevent him from finding it out, and getting all the
advantage he could out of it, and there ought not then to have been a law
made to prevent any one else finding out the process or improving upon
it. I cannot see the right of giving anyone the power to block the public
highway of thought and enterprise. Necessity is the mother of all useful
inventions, and if steel rails were required, English manufacturers would
have soon found out how to make them, without a Patent Law to help them.
R. R. S.
—From the _English Mechanic_.
REPORT OF THE CHAMBER OF COMMERCE OF COLOGNE ON THE PATENT QUESTION.
For the following translation I am indebted to the Hon. J. C. Heustler,
of the Legislative Council of Queensland:—
The resolution to abolish Patents on inventions, arrived at by the
Chamber of Commerce of Cologne, at their sitting of the 15th Sept., 1863,
has been confirmed in a report to the Ministry of Commerce, as follows:—
The Patent is a monopoly, and if it has been said in its favour that it
is justifiable and only temporary, it is, notwithstanding, subject to all
the disadvantages in its consequences which are common to all monopolies.
Endeavours to compete in the sphere of inventions are suddenly checked by
Patents, while, on the other hand, many a patentee, instead of continuing
to work with zeal, and to advance in the direction commenced, simply
occupies himself to watch with jealousy possible infringements of others
on his monopoly during the currency of his Patent.
Consumers pay exorbitant prices during a number of years for the
manufacture so patented, or receive the same in a less perfect condition
than would be the case if competition had exercised its wholesome
influence on the manufacture of the article in question. It may be
rejoined, that nobody is forced to buy the patented article, or to make
use of the patented invention; also that the common weal would profit
more by the utilisation of an invention, even if burthened for a period
of from five to fifteen years, than not have it in use at all.
To this it could be replied, with good reason, that with the constant
activity which working minds develop upon all fields of industry, the
invention of it would have been made shortly after by B, and by him
possibly would have been brought to light in still greater perfection. If
the invention of A, however, is patented, the inventive perfectioning of
the object by B must rest until the expiration of A’s Patent.
The more an invention is to the purpose for general adaptability, the
more reasonable appears the supposition that others would have arrived at
the same invention.
In spite of the contrary intention, Patents proved themselves an
impediment to the progress of human ingenuity, and by each newly-granted
Patent an unrelenting “halt” is shouted to the competition in that
direction.
On closer reflection, even persons who move in circles which, from
personal interest, have hitherto used their influence to give the
greatest possible stability to Patent-rights, will come to the conviction
that the disadvantages outweigh by far the advantages.
The Patent system, viewed from a standpoint of political economy,
produces a similar influence as the Lottery. The “grand prize” dazzles
all; however, only one can have it, and the multitude of those who
contributed to the solving of the problem lose very often a not
inconsiderable stake in uselessly-incurred costs, and lost time and
trouble.
Many have been induced by the system to rush after doubtful reward in
the shape of a Patent, instead of steadily applying their ability and
knowledge to regular industry.
Besides, it is not sufficient to make up one’s mind to make an invention
capable of being patented; such proceedings lead to a success in the
most rare cases. The most important discoveries have proceeded, on the
contrary, from those who thoughtfully prosecute their regular avocations.
The fear that with abolition of Patents the ingenuity of mankind would
slacken, we cannot share, because the germ of progress is embodied
in human nature, and because the joy over an invention made, and the
satisfaction felt at a new discovery, in themselves are powerful impulses
for the employment of energies in such directions. A strong proof of the
correctness of this assertion the men of science furnish, whom we have to
thank for the most important discoveries, in so far as the application
of physical and chemical laws to industry are concerned—which have been
always handed over immediately to the public with the utmost liberality.
Others have based their inventions on such laws, and managed to acquire
for this one or that other a Patent, and thus, to their own advantage
and to the cost of the public, made an invasion of territory hardly
legitimately theirs. They reaped where others had sowed.
Let us take, for instance, all the lighting apparatuses during the last
twenty-five years. The different lamp contrivances during this period
for which Patents have been granted by the industrial States of Europe
will number several hundreds. Now, if we sift the matter, we will find
that all these patented combinations are simply variations of a principle
which Berzelius established and applied to his spirit-lamp.
Similar is the experience with the invention of Bunsen, who reduced the
costs of the electric battery considerably, by applying a hard sort of
coke in place of the platinum in Grove’s Battery.
In a still higher degree has Morse acted meritoriously. It is true,
Morse, in consideration of the signal importance of his invention,
has received a public reward in the shape of money, and this mode of
acknowledging real merit in the province of inventions recommends itself
for adoption even in individual States.
After the abolition of Patents, apart from such acknowledgments as
aforesaid, very soon associations of the various interested parties who,
by each discovery, would be equally benefited, will be formed for the
purpose of rewarding new inventions made in accordance with indicated
problems, the solution of which may be felt to be most important to them.
For State rewards only such inventions should be taken cognizance of as,
according to their nature, cannot be kept secret, and are not of a kind
that will ensure to the inventor an adequate reward by his own use of
them.
Principles, which hitherto have not been admissible for Patents, would be
likewise excluded from rewards. There could be also no premiums for new
modes of manufacture, such as simpler or cheaper manufacture of materials
already known, and in the same manner manufacture of new articles
directly going into consumption, because, in the first case, the secret
use of the invention would present an equivalent, while in the latter
cases the start which the inventor has with regard to manufacturing, as
well as disposal, before and over his competitors, in most cases is more
than sufficient reward for the merit of having given mankind new means
of satisfying human enjoyments and necessities. It was consequently a
timely Convention between the States of the Zollverein, which already,
under date of 21st September, 1842, acknowledged the principle that the
granting of a Patent henceforth could establish no right to prohibit
either the import or the sale, nor the use of articles agreeing with
those patented, as far as articles of consumption are concerned, and
that a right of that nature was only applicable to machinery and tools
for manufacturers and artisans.[10] Accordingly, the granting of rewards
would have to be restricted to inventors of useful machinery and
tools, who do not use them solely in their own interest and keep their
construction a secret, but, on the contrary, make them accessible to
everybody by multiplication.
With such regulations as to Patent-right in force in Germany, it will be
observed that here, as in other countries, the great disadvantage arises
from this, that by the patenting of an invention its utilisation or trial
is prohibited to home industry, while the foreigner is quite at liberty
to make use of it and to bring the articles in question to market in the
country where the Patent exists.
In this manner foreign industry is actually enjoying a preference, to the
detriment of the industry of that country in which the Patent is granted;
consequently even the patentee, through such foreign competition, loses
the intended reward partially. The example furnished by the Patent on
the manufacture of aniline colours in France illustrates the case.
On the whole, it is not to be denied that those advantages which the
Patent monopoly should guarantee are often not in harmony either with
the value or the importance of the patented invention; just as often
these advantages do not reach the author of the invention at all, but
flow into the pockets of such people as make it a business either to
purchase Patent-rights, and so work them for their own account, or in
partnership with the patentee, taking care to secure for themselves the
lion’s share. It is further proved by experience that insignificant and
most simple inventions have often brought extraordinary advantages to
the patentee, while the discoverers of important novelties (we instance
only Reissel, who introduced the screw as a motor in navigation), in
spite of Patent-rights, could not find gratitude nor reward for what they
accomplished.
We arrive, consequently, at the conclusion, that the partly imaginary
advantages of Patents are outweighed by the disadvantages attached, and
that, as the industrial condition of Switzerland exemplifies, no further
use of such means is any longer required in helping to elevate industry
in all its branches to a very high standard, or to keep pace with the
development of other countries in that direction.
[10] I cannot but think the patenting of machinery a great disadvantage
to any community. Yet if importing were allowed in spite of the Patent,
the exaction of heavy royalties, and of royalties graduated according
to work performed (which is the greatest source of evil), would be
impossible, and the disadvantage be neutralised.—R. A. M.
EXTRACTS FROM M. VERMEIRE.
After most of this _fasciculus_ is in type, I am favoured with a copy of
M. Vermeire’s “Le Libre Travail,” Brussels, 1864, from which I subjoin
three extracts.
The first, a noble passage quoted by that gentleman from M. Bastiat’s
“Harmonies Economiques:”—
“C’est la concurrence qui fait tomber dans le domains commun
toutes les conquêtes dont le génie de chaque siècle accroît le
trésor des générations qui le suivent. Tant qu’elle n’est pas
intervenue, tant que celui qui a utilisé un agent naturel est
maître de son secret, son agent naturel est gratuit sans doute,
mais il n’est pas encore commun; la conquête est réalisée, mais
elle l’est au profit d’un seul homme ou d’une seule classe.
Elle n’est pas encore un bienfait pour l’humanité entière.
Si les choses devaient rester ainsi avec toute invention, un
principe d’inégalité indéfinie s’introduirait dans le monde;
mais il n’en est pas ainsi, Dieu, qui a prodigué a toutes ses
créatures la chaleur, la lumière, la gravitation, l’air, l’eau,
la terre, les merveilles de la vie végétale, l’électricité et
tant d’autres bienfaits innombrables, Dieu, qui a mis dans
l’individualité _l’intérêt personnel_ qui, comme un aimant,
attire toujours tout à lui, Dieu, dis-je, a placé aussi au sein
de l’ordre social un autre ressort anquel il a confié le soin
de conserver à ses bienfaits leur destination primitive, la
gratuité, la communauté. Ce ressort, c’est la concurrence.
“Ainsi l’intérêt personnel est cette indomptable force
individualiste qui nous fait chercher le progrès qui nous le
fait découvrir, qui nous y pousse l’aiguillon dans le flanc,
mais qui nous porte aussi a le monopoliser. La concurrence
est cette force humanitaire non moins indomptable qui
arrache le progrès, à mesure qu’il le réalise, des mains de
l’individualité, pour en faire l’héritage commun de la grande
famille humaine. Ces deux forces qu’on peut critiquer, quand on
les considère isolément, constituent dans leur ensemble, par le
jeu de leurs combinaisons, l’harmonie sociale.
“Et, pour le dire en passant, il n’est pas surprenant que
l’individualité, représentée par l’intérêt de l’homme en
tant que producteur, s’insurge depuis le commencement du
monde contre la concurrence, qu’elle la réprouve, qu’elle
cherche à la détruire, appelant à son aide la force, la ruse,
le privilége, le sophisme, la restriction, la protection
gouvernementale, le monopole.”
The second, portion of an interesting letter by M. Paillottet,
éditeur-commentateur of Bastiat’s works, (written in May, 1863):—
“Cette connaissance, résultat de son travail, est pour toujours
à lui; nul ne peut la lui enlever ni ne doit l’empêcher de s’en
servir.
“Seulement, comme la nature permet à d’autres hommes de se
livrer à la même recherche, qu’elle les y excite et souvent
même leur en fait une nécessité, le jour doit arriver où la
notion que cet homme possédait seul est aussi possédée par
d’autres. Ce jour-là, je dis que le premier inventeur n’a plus
seul le droit de se servir d’une notion qu’il n’est plus seul
à posséder. Prétendez-vous que je le dépouille du résultat de
son travail? J’ai à vous répondre: Si je dépouille le premier,
vous, vous dépouillez le second, le troisième, le centième
inventeur peut-être; si je dépouille le Chinois, vous, vous
dépouillez Guttemberg!
“Un mot maintenant sur le droit à la réciprocité de services.
“Je crois fermement, avec Bastiat, que ‘la véritable et
équitable loi des hommes, c’est: Echange _librement débattu_ de
service contre service.’
“Si un inventeur me rend service, je lui dois un service
équivalent; Dieu me garde d’en disconvenir. Mas de même que je
n’exige pas de l’inventeur ses services et ne l’oblige pas à
en recevoir de moi, j’entends qu’il n’exige pas les miens et
ne m’impose pas les siens. Entre lui et moi, l’échange doit
être précédé d’un libre débat amenant le consentement des
deux parties. M. Le Hardy de Beaulieu oublie ou supprime la
nécessité du libre débat.”
The third, a narrative by my able and ardent Belgian fellow-labourer
in this great cause, the Abolition of Patents, M. Vermeire himself,
to whose work I refer readers. He will allow me to say I impute it to
no deficiency in courtesy on his part that it escaped earlier and due
notice. He there gives the Chambers of Commerce of this kingdom credit
for opinions which they have not generally embraced up to this hour:—
“M. Eugène Flachat attaque la loi des brevets comme une _lépre
industrielle_. M. Arthur Legrand ne critique pas moins vivement
cette législation surannée ainsi que M. Michel Chevalier,
que l’on peut considérer, à juste titre, comme le chef des
économistes français.
“Quand l’opinion de ces hommes érudits me fut connue je
n’hésitai plus et je publiai l’exposé de ma doctrine du _Libre
travail_ dans l’_Economiste Belge_ du 28 Mars, 1863.—Plus tard
M. Macfie, president de la Chambre de Commerce de Liverpool,
fit connaître ses idées sur la matière et le congrès des
économistes allemands réuni à Dresde en Septembre, 1863, émit
la résolution suivante qui fut adoptée à une forte majorité:
“‘Considérant que les brevets d’invention n’encouragent pas
les progrès des inventions et mettent plutôt obstacle à la
réalisation de celles-ci.
“‘Considérant, que les brevets d’invention entravent plutôt
qu’ils ne favorisent la prompte exploitation des inventions
utiles et qu’ils ne sont pas un mode convenable de récompense.
“‘Le congrès a résolu que les brevets d’invention sont
nuisibles au développement de la prospérité publique.’
“Cet avis des hommes de la science a été écouté en Allemagne
par les hommes de la pratique; car sur les 47 Chambres de
Commerce que renferme la Prusse, 31 viennent de se prononcer
pour l’abolition des brevets d’invention d’après ce que je
viens de lire dans les journaux, au moment même où j’écris ces
lignes.—
“_Le libre travail_ qui fut suivi, de mon _Examen critique de
la garantie légale des modèles et dessins de fabrique_ provoqua
une ardente discussion,” &c.
MOVEMENTS IN GERMANY, BELGIUM, AND HOLLAND.
A Belgian _projet de loi_ in favour of copyright of models and designs in
manufacture, having been defeated, in consequence, as is alleged, of M.
Vermeire’s efforts through the press and otherwise, we are told—
“This fact demonstrates once more that in Belgium, as
everywhere else, opinions in favour of intellectual property
within the domain of industry are declining, and that so far
from legislation tending in the direction of giving such
property increased proportions, it will soon be proposed
to demolish entirely the superannuated legislation which
interposes so many and so serious obstacles to the progress of
industrial operations.
“The tactics of the partisans of such property consist in
identifying or assimilating it with material property. This
similarity permits the conclusions and deductions to be drawn
which form the basis of Patent legislation.
“The pretended identity or similarity has been completely
overthrown by M. Vermeire in his ‘Le Libre Travail.’ His
‘Examen Critique de la Garantie Légale des Modèles et Dessins
de Fabrique’ deals a fresh blow against the confounding of
property in a thing and property in an idea.”
EXTRACT OF LETTER, BRUSSELS, JUNE 11, 1869.
There is in Belgium, as in England and all other countries, a feeling
antagonistic to Patent-rights. It is even shared in by many eminent
political economists. I think, however, I may venture to assert that in
this country the Government, far from participating in this feeling,
would rather be inclined, in the event of a revision of the Patent-Laws,
to secure in a more effectual way the rights of inventors.
GERMANY.
EXTRACT FROM LETTER OF AN EMINENT HOUSE IN COLOGNE.
Although we think it rather difficult to form a general opinion on this
matter, we still believe that most Industrials would welcome abolition
of Patents for Inventions. The Cologne Chamber of Commerce expressed,
in September, 1863, its opinion in the same sense. German legislation
regarding Patents will probably be reformed. A proposition made in this
direction by Count Bismarck to the Bundesrath, contained in the “Annalen
des Norddeutschen Bundes,” by Dr. George Hirth, 1ster Heft Jahrgang,
1869, page 34, 42, II., would interest you much, as it coincides, we
believe, with your motion. The latest publications in German literature
on the subject are Klostermann “Die Patents Gesetzgebung aller Lander,”
Berlin, 1869; Barthel “Die Patent-frage,” Leipzig, 1869.
EXTRACT FROM “DIE PATENTS GESETZGEBUNG ALLER LANDER,” BY DR. R.
KLOSTERMANN (BERLIN, 1869).
A short time since, in the course of the present decade, the public has
spoken out, following numerous and important persons who wished the
entire abolition of Patents for inventions, because they allege that the
existence of such is incompatible with the free-trade movements. They
said that such impede industry instead of advancing it; that the claim of
the first inventor to a monopoly is untenable; that discovery is not the
work of one man, but the ripe fruit of industrial development.
From the difficulty and complexity of the subject, men would do away with
Patent-Laws; but the real cause of the agitation against them lies in the
enormous development which our international commerce has undergone in
the last ten years through free-trade, steam-boats, and railways.
As the complete abolition of the “customs-limits,” with the German
Zollverein [customs-union], was not made without a direct transformation
of the Patent-Laws and a positive limitation of Patent protection, so
is—through the concluding of the treaties of commerce made during the
last ten years between the Zollverein and France, Great Britain, Belgium,
and Italy—a _total reform_ in the Patent-Law rendered necessary.