RECENT DISCUSSIONS
                                  ON THE
                   ABOLITION OF PATENTS FOR INVENTIONS
                                  IN THE
          UNITED KINGDOM, FRANCE, GERMANY, AND THE NETHERLANDS.

               Evidence, Speeches, and Papers in its Favour
                                    BY
          Sir WILLIAM ARMSTRONG, C.B.; M. BENARD, Editor of the
     “_Siècle_” and “_Journal des Economistes_;” Count Von BISMARCK;
     M. CHEVALIER, Senator and Member of the Institute of France; M.
      FOCK; M. GODEFROI; Mr. MACFIE, M.P., Director, or Member, of
      the Liverpool, Edinburgh, and Leith Chambers of Commerce and
      Merchants’ House of Glasgow; Sir ROUNDELL PALMER, M.P., late
     Attorney-General, &c.; Right Hon. LORD STANLEY, M.P., Chairman
       of the late Royal Commission on Patent-Law; JAMES STIRLING,
     Esq., Author of “Considerations on Banks and Bank-Management,”
               “Letters from the South,” &c.; and others.

            WITH SUGGESTIONS AS TO INTERNATIONAL ARRANGEMENTS
                   REGARDING INVENTIONS AND COPYRIGHT.

                                 LONDON:
                    LONGMANS, GREEN, READER, AND DYER.
                                  1869.

       *       *       *       *       *

    “La legislation des brevets d’invention peut avoir l’effet
    d’entraver notre commerce d’exportation, et de priver
    l’industrie nationale de débouches utiles.... Un brevet est
    un privilége et un monopole. Pour que le monopole puisse être
    reconnu par la loi, il est indispensable qu’il repose sur un
    droit certain ou sur une utilité publique parfaitement établie.
    Le peu qui précède suffit ce me semble a démontre que l’utilité
    publique n’existe pas.... Le brevet d’invention a-t-il pour
    base un droit positif? Il semble pourtant que non....

    “Telles sont les réflexions qui sont venues à un certain
    nombre d’hommes éclairés depuis quelque années et qui ont
    l’assentiment d’un bon nombre d’hommes des plus notables
    parmi les chefs d’industrie. Elles ont de l’écho dans touts
    les pays civilisés, et en Angleterre pour le moins autant
    qu’en France—(1) Elles ne tendent à rien moins qu’à renverser
    le système même des brevets d’invention, sauf à rémunérer
    par une dotation spéciale tout homme ingénieux qui serait
    reconnu, après un certain temps d’expérience, avoir rendu à la
    société un service signalé par quelque découverte. C’est ainsi
    qu’il a été procédé en France à l’égard des inventeurs de la
    photographie.”—From the Introduction to the “Rapports du Jury
    International de l’Exposition 1862, publies sous la direction
    de M. Michel Chevalier, President de la Section Française.”

       *       *       *       *       *

    “Selon moi donc, le char du progres social doit être mu par
    l’industrie et dirigé par l’esprit chrétien. Il s’arrête à
    défaut de travail, il déraille à défaut de charité.... Et
    s’il est prouvé que c’est industrie qui nourrit l’humanité,
    que c’est elle qui la chauffe et la préserve contre toutes
    les intemperies, n’est il pas juste de dire que pousser au
    développement du travail, comme nous nous proposons, répandre
    dans l’esprit des travailleurs des idées qu’ils peuvent
    féconder pour arriver à une invention, a un perfectionment,
    a un nouveau procédé quelconque diminuant le prix de ce qui
    entretient la vie, que c’est là, messieurs, de la bienfaisance
    par excellence.”—President’s Opening Address of the Industrial
    and Scientific Society of St. Nicolas, 1866.




CONTENTS.


                                                                      PAGE

  Prefatory Note                                                         v

  Letter from Professor J. C. THOROLD ROGERS                          viii

  Remarks on an Article in the WESTMINSTER REVIEW                        1

  Petition of the NEWCASTLE CHAMBER OF COMMERCE                          8

  Notes of Mr. MACFIE, M.P., for Speech upon Motion, 28th May, 1868      9

  Speech of Sir ROUNDELL PALMER, M.P., on that Occasion                 93

  Speech of Lord STANLEY, M.P., on same Occasion                       109

  Paper by JAMES STIRLING, Esq.                                        116

  Papers by M. BENARD, “_Are Inventions Property?_”                124-150

  Speeches of M. CHEVALIER and M. PAUL COQ                             164

  Papers by M. BENARD, “_Results of a Bad Law_”                    175-180

  Message of Count VON BISMARCK to NORTH GERMAN PARLIAMENT             185

  Debate in the Netherlands Second Chamber                         197-204

  Extracts from a Memorial of the Dutch Government                     225

  Other Extracts regarding Abolition in Holland                    226-229

  Speech of E. K. MUSPRATT, Esq., in LIVERPOOL CHAMBER OF COMMERCE     231

  Letter of Sir WILLIAM ARMSTRONG, C.B.                                237

  Letter of JOHN THOMSON, Esq.                                         238

  Letter of ANDREW JOHNSON, Esq., M.P.                                 239

  On the Distinction between Copyright and Patent-right, by Mr.
   MACFIE, M.P.                                                        241

  On Patent Monopoly, by Mr. MACFIE, M.P.                              243

  A Scheme for International Patents, by Mr. MACFIE, M.P.              250

  Article from the TIMES on the Debate in Parliament                   251

     ”      ”      ECONOMIST        ”          ”                       255

     ”      ”      SPECTATOR        ”          ”                       259

     ”      ”      SATURDAY REVIEW  ”          ”                       263

  Extracts from Recent Periodicals                                     268

  Report of the COLOGNE CHAMBER OF COMMERCE                            272

  Extract from M. BASTIAT’S “_Harmonies Economiques_”                  276

  Extract from a Letter of M. PAILLOTTET, his Editor                   277

  Extract from M. VERMEIRE’S “_Le Libre Travail_”                      277

  Extracts showing Movements in BELGIUM, GERMANY, and HOLLAND          278

  Extract on Perpetuity of Patent-right, by M. BOUDRON                 281

  Extracts on American and British Patent-Law                          282

  Classification of Patents                                            283

  Illustrations Drawn from the Copper and Iron Trades                  284

  Note on Working Men as Inventors                                     286

  Note on the Inventors’ Institute                                     287

  Note on State Rewards                                                288

  Note on the Patent-office                                            289

                               COPYRIGHT.

  Observations on Remunerating Authors by Royalties                    293

  Suggestions How to Give Effect to this Mode                          296

  Extracts Showing Mr. WATTS’ Opinions on this Mode                    297

  Chapter from M. RENOUARD’S “_Traité des Droits d’Auteurs_” in
   Favour of it                                                        301

  Extract from Dr. LEAVITT’S Cobden Club Essay on International
   Copyright                                                           305

  Extracts on the State of the Question of Copyright in the UNITED
   STATES and CANADA                                                   307

  Statement of Mr. PURDAY on Same Subject                              313

  Letter from the Same on International Copyright in Musical Works     314

  Extracts from Papers laid before the CANADIAN PARLIAMENT             316

  Tendencies of Copyright Legislation, and Extracts from Recent
   Bill regarding Copyright in Works of Art, with Remarks on it        320

  Duties on Books in Several Colonies on Behalf of Authors             326

  On Trade-Marks and the CUSTOMS ESTABLISHMENT                         328

  The Export Book Trade of Various Countries Exhibited             330-331

  Extract from the “BEEHIVE”                                           332




To all who are serving their generation as employers and employed,
in the Arts, Manufactures, and Trades, of Leith, Musselburgh, and
Portobello, and have seen and felt the evils inherent in the present
State method of dealing with Inventions, these pages are inscribed,—with
congratulations that in the front rank of statesmen, as well within the
Cabinet as beyond it, there are earnest advocates of that emancipation
of British productive industry from artificial restraints which is the
needful accompaniment and the complement of free trade;—and in hope that
public attention will now at length be turned towards procuring such a
solution as will satisfy at same time all just pretensions of meritorious
inventors and men of science.

My own bulky contribution to the attack on the last stronghold of
monopoly is to be regarded as but a rough-and-ready earthwork thrown
up by a pair of willing hands in front of powerful artillery whose
every shot is telling. It comprises the jottings and materials which
I collected for a speech intended to be delivered on 28th May, when
proposing a motion in favour of abolishing Patents for Inventions.

Notwithstanding imperfections in execution, the present compilation
may acceptably supply a _desideratum_ and prepare the way for further
discussions, and especially for the Committee which Her Majesty’s
Government continue to view with favour and will heartily support.

                                                                  R. A. M.

_June 9, 1869._

While in the hands of the printer, fresh matter has, through the kindness
of honoured fellow-workers in the cause, reached me almost daily, part of
which is added. The reader will find in this accession to the testimonies
on behalf of freedom of industry, besides some new arguments, such a
striking concurrence and oneness in the principles enunciated, and even
in the illustrations made use of, as, coming from various quarters
independently, may fairly be regarded as presumptive proof of their
accuracy.

The Government has been so good as agree to produce, in conformity
with a request from Parliament, any documents in possession of the
Foreign-office which show the reasons or motives of the Prussian and
Dutch Governments for proposing the abolition of Patents in Germany and
the Netherlands. The adoption in the latter country of abolition pure
and simple, without (so far as I can see) the slightest indication of a
substitute, may well reconcile professional inventors and all who unite
with them to the propositions with which I close my “speech.” Now that
the continental stones are dropping out of the arch which forms the
System of Patents, the rest cannot long keep their place. The antiquated
fabric may be expected to tumble. For public safety, the sooner
Parliament and all concerned set themselves to take it down, the better.

A communication from Professor Thorold Rogers, and remarks on a recent
Review, are given herewith, the former on account of its value as
a vindication of economic truth and justice, the latter by way of
correcting the reviewer’s accidental mistakes.

The _Daily News_, in a leading article on the 27th July, having attached
importance altogether undue to a small meeting called under peculiar
circumstances on the 24th, which was supposed to express opinions and
wishes of artisans and operatives,[1] I addressed letters to that
influential paper, which will be found in its issues of the 29th, 30th,
and 31st. Of course Sir Roundell Palmer, who did the promoter of the
meeting the honour to take the chair, had not, any more than myself, the
smallest connexion with its origination and arrangements.

Appended are suggestions and information regarding Copyright, which came
in my way while in the press about Patent-right, and which may be useful
if international negotiations are contemplated for one or other or both
of these kindred subjects.

I hope imperfections of translation, which I regret, and errors of
the press, for which I take blame without correcting them, will
be indulgently pardoned, as well as faults entirely my own in the
unaccustomed part of advocate and compiler.

_July 31._

⁂ No rights are reserved. Mr. Macfie will be glad to be favoured, at
Ashfield Hall, Neston, Chester, with a copy of any transcripts made or
any printed matter illustrating the question of Patents.

[1] When members of “Inventors’ Associations” ask mechanics to join
a crusade against freedom of industry, the best rejoinder is to ask
a statement in writing to show how it can be for the interest of the
millions to perpetuate fetters for the sake of investing a few hundred
individuals with a chance of obtaining personal advantage by means of the
power of fettering.




LETTER FROM PROFESSOR THOROLD ROGERS.


My dear Sir,—.... The fact is, no one, I presume, wishes to say that an
inventor is undeserving and should go unrewarded. All that the opponents
of the Patent system do say is, that the present machinery gives the
minimum advantage to the inventor, and inflicts the maximum disadvantage
on the public. Besides, in ninety-nine cases out of a hundred, the
patentee is only a simultaneous inventor with a number of others, who
lose their labour and ingenuity because one man happens to get in
first....

It has always seemed to me that the weakness of the inventor’s case lies
in the fact already alluded to, that he rarely is the sole inventor.
Hence the fundamental distinction between Invention and Copyright, though
I am no fanatical admirer of the latter privilege.

Now, if a law can confer a right on one person only by inflicting a wrong
on a number of other persons, it is intrinsically vicious, and cannot be
defended on the ground of its intentional goodness.

                            Yours faithfully,

                                                  JAMES C. THOROLD ROGERS.

July 29.




REMARKS ON A RECENT ARTICLE.


The _Westminster Review_ for July contains an article on Patents. Its
proofs should have been corrected with more care. In my answer to
question 1947 in the Royal Commission’s Report, the word “patented” in
the following the _Review_ misprints “neglected:”—

    As a matter of fact, patentees have patented things of so
    little value.

And in question 1954 a worse mistake is made by substituting “_some_” for
“none” in the following:—

    There being 400 Patents now in existence affecting your trade,
    none of which are made use of by you.

I have right also to complain of mistakes which do not originate with the
printer. The following opinions and arguments imputed to me I disclaim:—

    Had Mr. Macfie said this, we should not have been surprised.
    It closely resembles his contention that a book should be
    protected because it is something tangible, whereas an
    invention is something which, if not invisible, is in the
    nebulous condition of an idea.

What I wrote will be found below, page 241. My argument is, that the
subjects of Copyright being tangible _can_ be identified as the author’s
production, and nobody else’s; and that the subjects of Patent-right
being modes or plans, belong to the region of ideas which may easily
occur to anybody besides the first inventor.

Again: the reviewer says of Lord Stanley:—

    The latter, while supporting Mr. Macfie on the main issue
    distinctly repudiated his leading arguments.

This would be strange if true, seeing I coincide in all his Lordship’s
arguments. How, then, can he, twelve pages further on, say again:—

    As for Lord Stanley, he did not hesitate to dissent from Mr.
    Macfie’s arguments, while giving a qualified support to his
    motion.

Perhaps I should object to the following representation:—

    It has been proposed to replace Letters Patent by grants from
    the national purse. This is to revert to an obsolete custom.
    During the eighteenth century it was fairly tried, and the
    result should serve as a warning now. Seventy thousand pounds
    were distributed among plausible inventors in the course
    of fifty years. The advantage to the public was _nil_. The
    encouragement given to impostors was the only tangible result.
    Johanna Stephens obtained 5,000_l._ for disclosing the secret
    of her cure for the stone. A Mr. Blake got 2,500_l._ to assist
    him in perfecting his scheme for transporting fish to London by
    land, while a Mr. Foden was greatly overpaid with 500_l._, “to
    enable him to prosecute a discovery made by him of a paste as a
    substitute for wheat-flour.” Give a man a sum of money for his
    invention, and you run the risk of paying him either too much
    or too little. Give him a Patent, and you secure the invention
    for the public, while his remuneration in money is absolutely
    determined according to its value.

The _system_ of State-rewards has _not_ been tried. The reviewer’s
cases do not apply. The scheme that I submit could never be abused so
as to sanction such follies. It may not be a generous and royal way of
dealing with inventions, but it is equitable and safe; whereas, _pace_
the reviewer, the remuneration from a Patent is not at all “determined
according to its value” (that of the invention).

This interesting article is remarkable for what it omits rather than
what it contains. Like almost every, if not every, defence of Patents
which I have seen, it ignores the grand objection to Patents—their
incompatibility with free-trade. From the beginning to the end there is
not in the article the slightest allusion to the hardship they inflict on
British manufacturers in competing with rivals in home, and especially
in foreign, markets. Reformers of the Patent system fail to realise
this—that no conceivable mere _improvement_, even, though it should clear
away the present encumbrance of a multiplicity of trifling Patents, can
be more than an _alleviation_ of the mischief now done. The remaining
few would be the most important and valuable ones, and therefore the
most burdensome, because those which, on account of the heavy royalties
that will be legally claimed, must subject British manufacturers to the
largest pecuniary exactions—exactions that they cannot, but their rivals
often would, escape.

The writer of the article has a way of pooh-poohing adverse arguments,
even when he mentions them.

    That no two men produce the same book is true. It is almost
    as difficult for two men to give to the world two inventions
    identical in every detail, and equally well-fitted to subserve
    the same end. Much has been said about the ease with which this
    may be done, but authentic proofs are lacking of this having
    been done on a large scale.

And

    Again, then, we ask for proofs of the allegation that six men
    are often on the track of the self-same invention.

Why, the simultaneousness, or rapid succession, of identical inventions
is notorious.

He goes in the face of the strongest evidence when he says—

    It is doubtful even if these objectionable Patents do any real
    harm. An invention which will answer no purpose is simply
    useless, whether it be patented or not.

And, elsewhere,

    The truth must not be blinked that, if a multiplicity of
    worthless Patents be an evil, if the profits of manufacturers
    are diminished owing to the battle they have to fight with
    patentees, if the bestowal of Patent-right be the source of
    mischief and the occasion of pecuniary loss, the like complaint
    may be laid at the door of Copyright, and its abolition might
    be demanded with as great a show of fairness.

How lightly he can regard arguments of his opponents is also seen in the
following passage:—

    Another of Lord Stanley’s objections is that the right man
    hardly ever gets the reward. As he puts it, litigation being
    costly, and the grant of Patent-right merely amounting to
    permission to take legal proceedings against infringers, the
    poor man has no chance of asserting and defending his rights.
    “If a poor inventor took out a Patent, and the Patent promised
    to be productive, in nine cases out of ten he was obliged to
    sell it to some one who could command capital enough to defend
    it in a court of law.” We submit this proves nothing more than
    that the poor inventor, in nine cases out of ten, deserves our
    pity. But then, if these nine inventors are unfortunate, that
    does not justify the ill-treatment of the tenth.

The source of the writer’s idea, that cessation of Patents is
ill-treatment, lies in the assumption which pervades the whole article,
that to inventors belongs property in inventions—_i.e._, _exclusive_
right of property; or, in other words, right to require the State to use
its power to prevent other persons from doing what they do, and what
every other man has a natural and inalienable right to do.

Still further: shutting his eyes to the difficulty of mollifying the
grievance of invention monopoly by means of “_compulsory licences_,”
which the Royal Commission declared they found no way of rendering
practicable—and, I add, if practicable, would be no cure of the evils,
which are radical—he writes—

    If to this were added a system of compulsory licences, the
    amount of royalty to be determined by a tribunal, in the event
    of the parties failing to come to terms, nearly all the really
    serious and valid objections to the working of a Patent-Law
    would be obviated.

Yet, believing himself the friend of _the public_, in spite of all the
strong arguments _against_ his views and the little he himself adduces
_for_ them, he very complacently tells us—

    Speaking on behalf of the public, we maintain that a Patent-Law
    is necessary in any uncivilised community, because, without its
    protection, industry cannot flourish, and ingenuity can have no
    scope for its triumphs.

The reviewer can hardly have consulted any practical man when he
pronounces it—

    absurd to plead that a Patent has been infringed in ignorance,
    when it is certain that the ignorance, if not wilful, is wholly
    inexcusable.

Undoubtedly, infringements often are not acts done blamelessly in
ignorance; still, I would be surprised in most cases if the infringer
knew he was infringing. He is not likely to know it in making trivial
improvements, for how can he know without subjecting himself to no small
trouble and expense, such as ought not to be laid upon him.

There is an important point as to which the reviewer and I perhaps
differ, “the extent to which Letters Patent give a monopoly in ideas.”
The fact is, that the whole breadth of a _principle_ is patentable,
provided any single mode of applying it can be specified.

The reviewer, adverting to the changes which have taken place in the Law
of Patents since the days of Elizabeth, characterises them as “changes
towards greater freedom of action on the part of the State, and greater
liberty of choice on the part of the people.” This, I confess, I do not
understand, except so far as it may mean there has been less and less
control exercised by the State, and more and more advantage taken of this
supineness by all sorts of persons. I am quite prepared to admit that in
my speech I have exhibited rather a popular than a strictly legal and
logical view of the meaning and legitimate applicability of the words
in the statute, “nor mischievous to the State by raising prices.” All
that I maintain is this,—that the spirit of the proviso is opposed to
any individual Patent that keeps prices up at a level below which, if
there were no grant, they might, by the natural progress of industry,
be expected to fall, and to a Patent system that characteristically has
that effect and is also chargeable with “hurt of trade” and “generally
inconvenient.”




SPEECHES AND PAPERS ON THE ABOLITION OF PATENTS.




The following petition, which Mr. Macfie had the honour to present,
contains the motion which gave occasion for the speeches that form the
principal part of this compilation:—

    _To the Honourable the Commons of the United Kingdom of Great
    Britain and Ireland in Parliament assembled._

    THE PETITION OF THE NEWCASTLE AND GATESHEAD CHAMBER OF COMMERCE

    Humbly sheweth,—

    That your petitioners have had many opportunities of
    becoming acquainted with the working of the laws under which
    Patent-rights are granted to inventors in the United Kingdom.

    That your petitioners are informed that notice has been given
    in your honourable House of a motion in the following words:—

        “That in the opinion of this House the time has
        arrived when the interests of trade and commerce,
        and the progress of the arts and sciences in this
        country, would be promoted by the abolition of
        Patents for inventions.”

    That your petitioners, believing the proposed total abolition
    of Patent-Laws will be of great benefit to the country, are
    most desirous that the above-named resolution should be adopted
    by your honourable House.

    Your petitioners, therefore, humbly pray that the said motion
    may pass your honourable House.

    And your petitioners will ever pray, &c.




NOTES OF SPEECH OF MR. MACFIE, M.P.


Mr. Macfie, after apologies founded partly on the circumstance that, so
far as he knew, this was the first occasion when the policy of granting
Patents for Inventions had been discussed in Parliament, proceeded to
say, that manufacturers could not be indifferent to improvements. It is
indeed significant that they do dislike Patents, while they appreciate
and honour inventors, even those inventors who claim from the State
exclusive privileges, some of whom have the glory of being among the
greatest benefactors of mankind.

In considering the important subject which he now brought forward, he
submitted that it is not the interest of inventors, nor even the interest
of manufacturers, of agriculturists, of miners, nor of shipping, that
this House should consult, but those of the nation. The question to be
considered is, do Patents, on the whole, promote our national welfare?

Another principle on which he proceeded is, that there can be no property
in ideas. The Creator has so constituted nature that ideas can be held in
common, which is not the case with things material. Letters Patent for
inventions have been instituted in order to confirm to certain persons,
and deprive every other person of, the common, natural right to act on
the ideas or knowledge there patented. These exclusive privileges, while
they last, are, of course, property.

Further: It is a recognised principle, that the State is not bound to
grant Patents. These are grants dictated by royal favour. In the words of
Stephens’ Commentaries: “The grant of a Patent-right is not _ex debito
justitiæ_, but an act of royal favour.” Every Patent is a voluntary
transference by the State to an individual of power for fourteen years
to tax at pleasure other persons for making or doing the thing patented;
aye, if he likes, to prohibit or withhold the thing altogether.

Patent-right must not be confounded with Copyright. The latter stands
on perfectly different grounds, and can be advocated and upheld, as
he (Mr. Macfie) himself does, in perfect consistency with disfavour
for the former. There can be no rival claimant to the authorship of
any particular book; many persons may honestly and indisputably claim
originality in an invention. The true similarity between these two
subjects of privilege is not between the book and the invention or
machine, but the book and the specification of the invention. When you
buy a Murray’s handbook, a book on medicine, or a commercial guide, you
are at liberty to act on information you find in it, and to travel,
trade, or prescribe, according to the directions you find there. But mark
the contrast in what Patent-Law creates. When you buy a specification,
you know it tells only of certain things that you are not at liberty to
do.

Lastly: I acknowledge that it is legitimate to legislate with a view to
promote or protect trade. The interference, however, which is now wanted
is not a return to the old protective system of discriminative duties,
but the clearing away of evil laws, and especially deliverance from the
bondage and wrongs involved in Patent monopolies.

For the origin of our definite Patent legislation we go back to the
famous statute of James I. of England. At that time the people of this
kingdom were in a state somewhat resembling our present state. They
were desirous to extend trade and introduce new arts and manufactures.
Parliament was powerful and hated monopolies, under which the people
had been writhing. These it reprobated in the spirit of the jurists of
antiquity. While by that statute it swept away all other monopolies, it
permitted, or tolerated, that the Crown should grant the exceptional
privilege for “the sole working or making of any manner of new
manufactures within this realm, to the true and first inventor and
inventors of such manufactures, which others at the time of making such
Letters Patent and grants shall not use, so as also they be not contrary
to the law nor mischievous to the State, by raising prices of commodities
at home or hurt of trade or generally inconvenient.”

The House will keep steadily in view the wholly different condition of
commerce and the arts at that time. When these monopolies were spared,
trade was very far from being developed. The field of commerce was still
in a great measure clear and unoccupied. The kingdom was, commercially
as well as geographically, detached from the continent. The operations
of trade and the arts were slow, were conducted on a small scale and on
rude systems, and yielded large profits. Exports to foreign parts were
inconsiderable. There were no periodicals to give information as to
anything new in the arts and sciences. Under such circumstances, if new
kinds of business were to be established, it was not unreasonably thought
safe, or even needful, to allure by promise of exclusive privileges. The
very reverse are our present circumstances and condition.

May I be allowed now to call particular attention to the Act. Anybody may
see that it authorised exclusive privileges as something exceptional,
something almost loathed, as “monopolies.” The House may remember how, in
conformity with this view, Patents used to be construed by the judicial
bench with a leaning against them. It was clearly not contemplated that
they were, as they are now, to be had at a comparatively easy price,
by a very simple course of procedure organised to hand, at an office
established and with machinery ready to be set in motion for the purpose.
A rigid testing examination, or severe, perhaps somewhat adverse,
scrutiny was implied. They were granted for England only, then containing
a small population, and requiring not very much for its supply of any
new article. Moreover, the coveted privilege was a concession of no more
than leave or right to “work” or “make” (not vend), and that within the
kingdom, which, although it is the only thing the Act allows Patents to
be granted for, is not required now-a-days. The right was conferrible
only on the patentee himself; whereas now-a-days, and perhaps from the
first, the usage is altogether different; for the patentee is now allowed
to transfer his right, by licence, to others: that is, to vend his
“invention,” taking the noun, not in its sense of a thing made, but of a
method, or idea, or right to make or do a thing. Without this licensing,
it is of consequence to remember, the monopoly would be too grossly
and glaringly bad to be defensible or maintainable. There is another
contrast: by the words of the statute nobody could be patentee but only
the true and first inventor. Besides, the subject of a Patent clearly was
to be something palpable and visible—something that admitted not of doubt
as to what it was or as to its being novel—something respecting which
there could be no fear whatever that it would interfere with any already
existing trade. Above all, a process or operation, especially in a trade
that already existed, does not appear to be contemplated by the statute.
How entirely and sadly different is the present practice in this respect.
Let me first quote from Brande’s Dictionary the opening definition that
shows how naturally, and as it seems, unconsciously, writers speak of
“processes,” as the great or only subject-matter:—

    “The word Patent is commonly used to denote a privilege
    accorded to an inventor for the sole use of some process by
    which an object in demand may be supplied to the public; or
    some product already familiar to the public may be made more
    easily and efficiently.”

So the commencement of a Paper on Patents, in the last volume of the
Proceedings of the Association for the Promotion of Social Science—in the
following words, “The point asserted in the following paper is, that in a
grant of Letters Patent, the subject of the grant is a ‘process,’ and not
‘product’”—shows as decisively the complete change that has taken place,
and, let us not forget it, without consent of Parliament, who indeed have
never been consulted. The alteration of the practice, which is nothing
less than a new law—a law diametrically opposed to the spirit of the
statute—is the work of the courts of judicature. Better principles might
have been expected to prevail, for how just is the following reflection,
taken from the most important “Treatise on the Law of Patents:”—

    “Every member of the community receives many benefits from the
    society in which he lives, and he is therefore bound, by every
    means in his power, to advance its interests. And it seems
    to be but reasonable that he should be expected to promote
    the public weal by putting the community in possession of any
    discovery he makes which may be for the public good.”

The observations I have been making are founded on the words of the
statute. It is possible, and perhaps I may say probable, that outside
of the statute there was an influence drawing in an opposite direction,
which found expression in the Letters Patent. If these were scrutinised,
it is not unlikely even the earliest would be found not to contain
the strict conditions and limitations which are laid down in the Act.
An incidental proof of this tendency I notice in one Patent which has
met my eye, where, though the duration of the Patent in England was
confined within the permitted period of fourteen years, the duration
in Ireland, which was not subject to the limitation, was in same grant
made so long as between thirty and forty years. I do not find, in the
excellent Chronological Index issued by Mr. Woodcraft on behalf of the
Patent-office, anything at all to indicate that desire to favour trade
was the motive for granting Patents even after the statute was passed.
On the contrary, a money consideration seems to have been customary.
The Crown stipulated for yearly payments of various amount, some of
these being fixed sums, others a tenth, or three-tenths, or a quarter,
or a half, of the clear benefit. In one case 4d. per bushel of salt was
claimed. In another case 6d. per 100lbs. of bones was stipulated for. In
another I find 5s. per ton of metal stipulated. All this is suggestive,
but not less the condition, introduced occasionally, that the articles
manufactured should be sold at moderate rates. The moderate rates appear
to have been sometimes defined, _e.g._, 100 seals of a new kind were to
be sold for 1d. Similar and more stringent care was taken when Copyright
first became the subject of systematic legislation, to prevent the
monopoly from making books dear. All such precautions have, in our modern
unwisdom, disappeared. Grotius requires under monopoly a restriction on
price.

One thing, I presume, may be regarded as certain, that neither in the Act
nor in the Letters is there any vestige of the modern political heresy
that an invention may be legislated for as in any sense property. Even
the high-sounding phrase, “the rights of inventors,” appears a recent
introduction.

It is not forty years since the greatest number of persons allowed to
participate in a Patent was five. This limitation was a lingering remain
of the traditional character of Patents, as monopolies which ought not to
be provided with facilities for extension but rather be confined within
the narrowest bounds.

It is proper I should now prove from that and other authorities in law,
what is the correct interpretation of the word “manufactures” in the
statute, on whose meaning so much depends. My quotations will exhibit
progressive development—a thing justly viewed with suspicion, whether its
sphere be the ecclesiastical or the legal. What I now bring under notice,
taken in connexion with the startling perversion of the words “first and
true inventor” and the setting at nought the letter and spirit of the
words “to make within this realm,” matches the whimsical and ruinous
sophistications we smile at in the “Tale of a Tub.”

My first appeal is to Sir E. Coke’s “Institutes:”—

    “If the substance was in being before, and a new addition
    made thereunto, though that addition made the former more
    profitable, yet it is not a new manufacture in law.”

That by a manufacture was meant something so definite as to involve or
imply an art in the sense of a trade, will be seen by another quotation
which I make from Serjeant Hawkins, who says—“the King may grant the
sole use of an art invented or first brought into the realm.” So also in
“Bacon’s Abridgment.” The Court of King’s Bench held—

    “A grant of the sole use of a new invented art is good.... This
    is tied up by the statute to the term of fourteen years; for
    after that time it is presumed to be a known trade.”

Mr. Hindmarch writes—

    “It was long doubted whether a mode, method, or process of
    itself, and apart from its produce or results, could legally be
    made the subject of a Patent privilege.”

After citing cases, he adds—

    “These cases show clearly that a process of manufacturing,
    separate and apart, may be made the subject of a Patent
    privilege.”

Mr. Coryton, in his volume on “The Law of Letters Patent,” expresses his
mind thus plainly:—

    “On the assumption that a Patent confers a monopoly, it
    follows directly that the subject-matter of the Patent must
    be a material thing, capable of sale,[2] and cannot be either
    an improvement, principle, method, process, or system. In
    other words, the subject-matter must be, as it was originally
    defined, a ‘new manufacture.’ A thousand evils have arisen from
    affixing other than the literal interpretation to the terms,”
    &c.

He quotes Justice Heath, who said—

    “That which is the subject of a Patent ought to be vendible;
    otherwise it cannot be a new manufacture.”

So Tyndal—

    “That it is a manufacture can admit of no doubt: it is a
    vendible article, produced by the art and hand of man.”

Mark from the words of Justice Buller, on the same occasion, the
sentiment which was permitted to prevail and neutralise the statute:—

    “Few men possess greater ingenuity, or have greater merit. If
    their (Boulton and Watt’s) Patent can be sustained in point
    of law, no man ought to envy them the profit and advantages
    arising from it. Even if it cannot be supported, no man ought
    to envy them the profit,” &c.

We come to C. J. Eyre:—

    “According to the letter of the statute, the words ... fall
    very short ... but most certainly the exposition of the
    statute, so far as usage will expound it, has gone very much
    beyond the letter. ‘A deliberate surrender,’ comments Mr.
    Coryton, ‘of judicial power in favour of an accumulation of
    popular errors.’... Later judges, following in the same course,
    have striven rather to regulate the inconsistencies they found,
    than to address themselves to the cause and thus prevent the
    possibility of their recurrence. Writers on this subject have
    on this head followed in the course indicated by the Bench.”

A practical commentary, and a confirmation of Mr. Coryton’s views, are
furnished by the fact that the number of Patents granted in the six
reigns preceding that of Geo. III. was only 540 in 85 years, or less than
6½ a-year; whereas now a greater number is granted daily.

The actual administration of Patents is exhibited to us by a Return which
the House has been good enough to order on my motion. That return shows
how the rate of multiplication has increased, especially in Scotland and
Ireland.

There have been granted for—

                                                   In England
                England.   Scotland.   Ireland.  for the Colonies.
    In 1650—None.
    1700            2
    1750            7
    1800           96          13            2              6
    1825          250          62           33             87
    1850          523         227          531            191
    1866        2,121       2,121        2,121           none
    1867        2,292       2,292        2,292           none

There were in operation in the United Kingdom at the end of last year no
fewer than 11,369.

The House is aware that the Patent-office makes a classification of
Patents. The classification for 1866, the latest year that could be given
in the Return, shows that there are nearly 300 classes, and there were
Patents granted that year affecting those classes to the number of more
than thirty each on the average. Taking the manufacture and refining of
sugar as a test of other classes, the Return shows that in that trade
there were granted more than thirty “affecting processes or operations”
(without including hundreds of others of a more general character, to
which manufacturers of all sorts are subjected, as, for instance, Patents
for motive power, heating, &c.). Many noteworthy matters will meet the
eye of any person who examines the Return, such as the following: For
medical, curative, and similar “revelations,” there were granted about
80; for improvements tending to safety, nearly 350; affecting food, about
400; affecting steam-boilers, about 160; steam-engines, about 120.

But we have yet to consider the most material points in the Act. To these
I now call attention. The conditions or limitations which the statute
makes necessary are extremely significant. They are in these words—“Not
contrary to the law nor mischievous to the State, by raising prices of
commodities at home or hurt of trade or generally inconvenient.”

On these words Sir Edward Coke remarks—

    “There must be _urgens necessitas_ and _evidens utilitas_.”

What might be understood by being “generally inconvenient” in
the statute, and how little disposition there was to render that
disqualification a dead letter, we may gather from the following extract,
which shows that saving of labour was in those early days, so far from
being a recommendation, an inconvenience. Hear the same authority:—

    “There was a new invention found out that bonnets and caps
    might be thickened in a fulling mill, by which means more might
    be done than by the labours of fourscore men who got their
    living by it. It was ordained by an Act, 7 Edward VI. c. 8,
    that bonnets and caps should be thickened and fulled by the
    strength of men, and not by a fulling mill, for it was holden
    inconvenient to turn so many labouring men to idleness.”

On which passage Mr. Farey (a gentleman eminent on Patent questions), who
quotes it in an elaborate review of Patent-Law at the end of the Blue
Book of 1829, the Report of the Committee on Patents for Inventions,
makes the following remarks: “If this decision had been followed, it
would have set aside every Patent for invention.” True, and the more’s
the pity, perhaps! Let us hail the admission.

Sir Edward explains, and I read, the whole passage that I have cited,
not as a lawyer might who wished to ascertain whether by oversight in
drawing the Act or by the malleability and elasticity of language it
could be interpreted even non-naturally to suit a purpose, but as honest,
blunt Englishmen would understand it, as the English gentlemen who passed
the Act must have understood it and meant the Crown to understand it.
I submit, Mr. Speaker, that at this moment, and by this statute, and
according to the common law which this statute declares, Patents are
illegal which raise prices or hurt trade. The framing of the sentence
leaves no doubt whatever that the antecedent to the words “they be not
contrary to the law nor mischievous to the State, by raising prices of
commodities at home or hurt of trade,” are these words, “Letters Patent
and grants of privilege.” The preceding section contains the same words.
That section was introduced in order to shorten the duration of Patents
granted previously, and to nullify any that raised prices or hurt trade.
It is plain that the intention of Parliament and of the Sovereign was to
allow no monopoly to exist whose effect would be either to interfere with
the extent or efficiency of industrial occupations, or to make prices,
even of the new manufacture or commodity, dearer under the restriction
than they would be without it. Even so late as the last century, the
consistency of monopoly with cheapening of prices was believed in. As
an example, I have been told that when the Paraphrases of the Church of
Scotland were issued, the monopoly was given to a particular printer,
with this purpose expressly stated.

What language can be plainer than that of the statute? As that statute
is still the charter of our commercial freedom and the chart by which we
may discover the track we must follow in order to our return to the open
and safe, and as its sound limitations are still the law of the land, I
am entitled at the outset to contend that they ought to be put in force.
They have been utterly neglected, and the nation suffers much from the
neglect. As to this, hear my witnesses. I produce them chiefly from the
following Blue-books: That issued by the Committee of this House which
sat in 1829, that issued by the Committee of the House of Lords which sat
in 1851, and that issued by the Royal Commission in 1865. Here remark
the strange failures of expectations that characterise the proceedings
of Parliament in regard to Patent-Law. The Committee of 1829 recommended
that they should be allowed to continue their investigations next
Session, but they appear not to have been allowed. After the inquiries
of 1851 there was, as a Petition which I have perused, presented to this
House, shows, an understanding that the whole subject would be inquired
into; but this never has been done down to this day. A Commission was
indeed appointed in 1862, but they were confined to the question of the
“working” of the laws. Indications were given, both before and after it,
that the question of the policy of these laws should be examined into.
The Liverpool Chamber of Commerce repeatedly urged this; _e.g._, in
March, 1862, when that body petitioned the House thus: “They therefore
pray that your honourable House will appoint a Select Committee to
inquire into the policy and operation of those laws.” But the matter
is still in abeyance, and, notwithstanding promises in a Royal Speech,
legislative action is suspended.

To proceed: Mr. Lennard in this House, in April, 1829, declared his
opinion—“It was not desirable to facilitate overmuch the obtaining of
Patents by any reduction of expense.”

So Sir Robert Peel, in the interest of the manufacturers of Lancashire,
Cheshire, and Yorkshire, deprecated cheapening of Patents and their
consequent multiplication. At that period another member objected even to
the publishing of specifications, because

    “It enabled persons to carry the invention abroad, where, of
    course, the Patent article was made, the foreign market shut
    against the real invention, and the undue benefit granted
    foreigners of having the free use of the invention fourteen
    years before the patentee’s countrymen.”

The House will observe that the complaint here is not that we were hurt
in British markets—for these the protective system of duties closed—but
that we lost our hold of foreign markets.

Sir Mark Isambard Brunel, the eminent engineer, told the Committee of
1829:—

    “I have had several Patents myself; I think that Patents are
    like lottery offices, where people run with great expectations,
    and enter anything almost.

    “And if they were very cheap, there would be still more
    obstacles in the way of good ones. I think the expense of
    Patents should be pretty high in this country, or else, if it
    is low, you will have hundreds of Patents more yearly, and you
    would obstruct very much the valuable pursuits.”

That Patents are, indeed, a lottery in respect to the uncertainty whether
the patentees draw a prize or a blank, I refer to the words of Mr. Curtis
before the Royal Commission:—

    “We have taken out a number of Patents, and frequently those
    to which we have attached the least importance have become
    the most valuable, and, on the contrary, those from which we
    have expected large things we have reaped comparatively no
    advantage.”

Mr. Coryton says in a note:—

    “The opinions of the witnesses examined before the Committee
    of the House of Commons in 1829 were almost unanimous to the
    effect that Patents should not be too cheap, lest the country
    should be inundated with them.”

Among my private papers, I find in 1851 the Manchester Chamber of
Commerce expressing the same fear in a letter to Mr. F. Hill, a portion
of which I now present:—

    “It is considered by this Board to be a primary axiom that
    every Patent granted is, during its exclusiveness, a limitation
    to a certain extent of the general rights of the people, and
    that in those Patents which have reference to manufacturing
    processes there may be a disturbance of the general industry
    of the people. This Board would, therefore, deprecate a too
    great facility in the obtaining of Patents. If the cost be
    made cheap, every trifling improvement in every process of
    manufacture would be secured by a Patent. In a few years no
    man would be able to make such improvement in his machinery,
    or processes, as his own experience may suggest, without
    infringing upon some other person’s Patent. Endless litigation
    would follow, and the spirit of invention in small matters
    would be rather checked than encouraged.”

The realisation of these fears, as well as the inconsistency of our
practice with the conditions which our forefathers, more wise than the
present generation, imposed, will be seen from the specimen extracts
which I will now read, begging that it be remembered a very large
reduction in the cost of Patents was made in 1852. The House will pardon
me if it finds these extracts are not arranged with any rigid regard to
order, but form a too _rudis indigestaque moles_.

The following prove that there is a natural tendency to excessive
multiplication of Patents, and to the making of the same inventions, and
of inventions directed to the same end, or moving on the same line, by a
number of persons at or about one and the same time.

This very week you read in the papers a judgment given by the Lord
Chancellor, which contains the declaration that a person in specifying an
invention may be held as preventing “the loss for a year or more to the
public of the fruits of the ingenuity of many minds which commonly are
working together in regard to the same invention.”

The _Journal of Jurisprudence_ says well:—

    “The rights of the inventor are also liable to interference
    of another kind. A rival manufacturer invents independently
    the same machine, or one involving the same principle. He is
    then, by natural law, at liberty to publish his invention
    without regard to the rights of the first inventor, seeing
    that he did not acquire his knowledge of its powers from the
    latter, and experience proves that, in point of fact, the same
    processes are frequently discovered by different individuals
    independently of each other. In an age of mechanical invention,
    an inventor cannot deprive the world of a new process by
    keeping it a secret. He can at most only retard the progress of
    discovery by a few years.... We submit that the fundamental
    principle of any legislative contract between inventors and the
    public should be, that the right of using the invention should
    be open to all Her Majesty’s subjects. Exclusive privileges,
    conferred for the purpose of enabling patentees to divide their
    profits with a few favoured manufacturing establishments, are
    indefensible upon any recognised principles of economy. Patents
    are in fact, as they are in law considered to be, trading
    monopolies; and the interests of the public imperatively
    require that, as monopolies, they should be swept away.”

Mr. Webster, Q.C., a high authority, says:—

    “I mean the discovery, for instance, of some chemical property,
    or the application of some property, of matter of recent
    discovery, or a certain effect, for instance, in dyeing; that
    becoming known as a chemical law, then persons rush to obtain
    Patents for different applications and different modifications
    of it.”

See by my next quotations how great is the obstruction the multiplication
of Patents creates, or, in the words of the Act, the “general
inconvenience” they occasion.

Mr. James Meadows Rendel, Civil Engineer, in 1851:—

    “During the twenty-five years that I have been in practice, I
    have frequently felt the inconvenience of the present state of
    the Patent-Law, particularly with reference to the excessive
    number of Patents taken out for frivolous and unimportant
    inventions, which I think are much more embarrassing than the
    Patents that apply to really important inventions.

    “I have found them interfere in a way that very much
    embarrasses an engineer in carrying out large works, without
    being of the slightest advantage to the inventors, excepting
    that in some cases a man who takes out a Patent finds a
    capitalist (however frivolous the invention) who will buy the
    Patent, as a sort of patent-monger, who holds it, not for any
    useful purpose, but as a means of making claims which embarrass
    persons who are not prepared to dispute questions of that sort.
    I think that in that way many Patents are granted which are
    but of little benefit to the real inventor, serving only to
    fill the coffers of parties who only keep them to inconvenience
    those who might have occasion to use the particular invention
    in some adjunct way which was never contemplated by the
    inventor.

    “After you have designed something that is really useful in
    engineering works, you are told that some part of that design
    interferes with some Patent granted for an entirely different
    purpose, and which might in itself be frivolous, but important
    in the new combination; and one has such a horror of the
    Patent-Laws, that one evades it by designing something else,
    perhaps as good in itself, but giving one infinite trouble,
    without any advantage to the holder of the Patent. I have
    frequently found this to be the case.”

Mr. W. S. Hale, candle manufacturer, said in 1851, in answer to the
question—

    “At present they are obstructions to you?—Decidedly.

    “You say that, practically, you have found the existence of
    Patents in themselves useless—a great obstruction to the
    introduction of inventions which would otherwise have been of
    value?—Certainly.

    “The great objection which I conceive many parties have to
    introduce real improvements arises from useless Patents. I am
    in treaty now for one or two which in themselves are useless,
    yet they contain the germ of something, and it is worth my
    while, if I can get them for a small sum, to purchase them; but
    directly you make application for a Patent of that description,
    it becomes very valuable all at once; the party conceives you
    are desirous of possessing yourself of it, and that you will be
    inclined to give anything for the use of it.”

In like manner Sir William Armstrong answered this question, put in 1864—

    “Is it within your knowledge that considerable inconvenience
    does exist in those branches of business with which you
    are most conversant from the multiplicity of Patents?—Most
    certainly, and great obstruction.”

So also Mr. James Spence, of Liverpool, a well-known correspondent of the
_Times_ during the American war, said—

    “It is difficult for a manufacturer to move in any direction
    without treading on the toes of some sort of a patentee.”

Likewise Mr. Montague E. Smith, Q.C., M.P., said:—

    “In several cases in which I have myself been counsel, very
    great inconvenience has arisen from the multiplicity of Patents
    which an inventor has had to wade through to see that he has
    not been anticipated.”

How truly did Sir W. Armstrong observe to the Commission—

    “You cannot grant a monopoly without excluding other persons
    who are working upon the same subject.”

Again:—

    “Here the State grants to an individual a monopoly, and
    therefore the public are at his mercy.”

Mr. J. S. Russell, who himself has taken out a good many Patents, speaks
more specifically:—

    “There are a great many Patents of that kind taken out for
    boilers of steam-engines, and boilers of steam-engines admit
    of a very enormous variety of shape and proportion without
    damaging their efficiency.... The consequence is, that I have
    not defended any of my own. I have never made of mine more
    than a mere registry of priority of invention. I have not made
    mine a source of money, but I have suffered in this way from
    Patents: I have gone on, in the course of my business, doing my
    ordinary work, and I have found other people taking out Patents
    for what I was doing without calling it an invention, and then
    prosecuting me under the Patent they had taken out for my own
    inventions, and it appears that there is nothing to prohibit
    them from doing that.”

This I can from experience endorse. He is then asked—

    “If you were able to prove that you had been carrying on an
    invention, whatever it might be, at the time when the person
    claiming to hold a Patent for it took out his Patent, would not
    that relieve you from all difficulty in the matter?—It would
    only give me the pleasure of defending a law-suit.”

Mr. Curtis, engineer, Manchester, said:—

    “Many parties in trade have made alterations without being
    aware of their being patented, and when they have used them for
    a length of time, they have found that the patentee has come
    upon them and made a claim for Patent-right.”

Mr. Platt, of Oldham, whom you are happy to see as a member, said:—

    “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, and the difficulty is to get at any knowledge. We may
    be now infringing, and may have been infringing for years,
    and a person may have been watching us all the time, and when
    he thinks that we have made a sufficient number he may come
    down upon us, and there is no record. A very large number of
    Patents are now taken out for what is termed a combination of
    known things, and known things for the same purpose, and the
    descriptions of those Patents are generally so bad that it is
    impossible to tell the parts that are actually patented; in
    matters of that kind it has become a very serious question as
    to conducting a large business.”

In 1851, Sir William Cubitt spoke of an inventor of filters:—

    “After he began to supply his customers, he received notice
    from a house in Liverpool that he would be prosecuted; he
    received intimation of legal proceedings against him for
    interfering with his, the Liverpool man’s, Patent. I have some
    of those filters. The manufacturer of these things, who had no
    Patent, came to me to consult me upon the subject. I at once
    saw how the case stood, having regard to the specification of
    the Liverpool patentee, that he (the latter) had taken out a
    Patent for that which another man had before done, so exactly
    that the words of the specification and the drawings fitted the
    first man’s invention, which was without a Patent, therefore
    his Patent would have been null and void. I advised my friend
    to write to the patentee to inform him of the fact that he had
    taken up a case which he could not support, and that he himself
    was infringing upon the invention of the first man, who had no
    Patent; that brought the Liverpool man to me, I having been
    referred to as having one of these filters in use. I explained
    to him that I had had the patent filter of the other man for
    two or three years. Then what was to be done? I advised my
    friend, who was in fact one of the Ransomes, of Ipswich,
    to tell the Liverpool patentee if he did not come to some
    arrangement of a business-like nature, he himself would have to
    become the prosecutor, and to sue out the ‘_scire facias_’ to
    make him prove his Patent-right, which is an expensive legal
    proceeding, and very troublesome to a patentee. I believe they
    have since made some business arrangement; but that shows how
    Patents may be, and are frequently, taken out for things which
    have been previously invented.”

As to the bad effects of Patents, I quote again from Mr. Scott Russell:—

    “The unlimited power given by a monopoly to an inventor has
    this practical effect at present, that when an invention has
    been made the subject of a Patent, everybody shrinks from
    it, everybody runs away from it, everybody avoids it as an
    unlimited evil, because the person who has the monopoly can
    subject you to a most expensive prosecution, and can charge you
    a most inconvenient sum for what you have done, and can punish
    you in every way for having touched his invention.”

Mr. Grove says it is natural that people should yield to the holder of
the Patent, for, if

    “He has a letter from a patentee saying, ‘You are infringing my
    Patent;’ I do not believe that the tradesman would go to the
    expense of litigation with the patentee, and for this reason,
    it is the patentee’s interest to give a very large sum of money
    to support his Patent. His Patent, although for a very trivial
    thing, may, taking the vast extent of sale, be a very lucrative
    affair, and therefore it is worth his while to lay out a large
    sum of money to support his Patent. It is not worth the while
    of the opponent, because he has only a little stock which
    affects him; the patentee has his whole interest consolidated
    in the Patent. All those who might oppose the Patent are a
    scattered body, namely, the public generally, not one of whom
    has any strong interest in opposing the Patent; and I believe
    that that has been very much worked by patentees, particularly
    in a small and comparatively frivolous and perhaps an all but
    useless invention. The public is a scattered body, not one
    of whom has sufficient interest to meet with equal force the
    patentee.”

Mr. Platt, M.P., presents the following case, to show how unprincipled
people use the power which the law gives them, and how, even with a
good case, if they but knew it to be so, people in business are led to
succumb to extortion:—

    “The fourteen years of the Patent had expired, and five years,
    so that it was nineteen years from the date of the Patent
    before the action that I now speak of was commenced. It was
    commenced by the parties, and I may say that the person who
    was the original patentee was a person of no money whatever;
    but he persuaded some party, I believe some lawyer, to advance
    some money in order to take up this case. I know that many
    machine-makers, rather than contest the case, absolutely paid
    the money—the different sums of money that were demanded of
    them. I came up this afternoon with a gentleman in a train
    from Manchester, who mentioned this case to me, and who stated
    that one of his own clients offered as large a sum as £2,000
    in one case, to settle the matter. I found that the system was
    to attack the smaller men, and by that means to extract money
    in different ways, and there have been a number of instances
    in which parties have paid in that way. Although not attacked
    in this instance myself, a neighbour of mine was; I looked
    over his evidence, and I told him that I thought I could amend
    it very much, and I told him further that I would be a party
    to the expense. I said, let me take the case in hand, which I
    did. Now, nineteen years is a very long time for a machine,
    and this machine was of a very valuable kind; hundreds upon
    thousands had been made during the nineteen years, and if this
    person could have established his claim to a Patent-right,
    he would have made a very large sum of money, so large as to
    be almost incalculable. It so happened that I recollected,
    when it was brought to my memory, that we had made a number
    of those machines long before the date of that Patent, and
    the difficulty then was to prove that such a machine had been
    made, for in nineteen years, speaking of cotton machinery, such
    machines would probably all have been broken up, scarcely any
    were to be found in the country; but it so happened that in one
    instance a very large firm of manufacturers in Preston, of the
    name of Horrocks, Miller, and Co., had two or three of these
    machines still left. I got Mr. Miller to come up to London, and
    we brought one of these machines with us. It was taken into
    court, and in a moment their own witness admitted that this was
    precisely the same thing that the other parties had been paying
    royalty to this man for, and the case was at once abandoned by
    Mr. Webster, who was then conducting it.”

Sir W. Armstrong told the Commission:—

    “Another great evil of the Patent system is this, that an
    invalid Patent really answers the purpose of protection almost
    as well as a valid one. I believe that there is not one Patent
    in ten which would bear scrutiny, and the mere name of a Patent
    often answers all the purpose. Nobody will face the litigation
    necessary to get rid of it.

    “In very many cases people prefer to pay black mail rather than
    undergo the expense of a law-suit?—In almost all cases; I know
    that in my own experience, if I find that a man has a Patent
    which I am satisfied is not a valid one, I would rather go out
    of the way to avoid any conflict with him.”

So also Mr. Curtis:—

    “I have in one or two cases given £200 to a party for the use
    of an invention in which I have told him at once that what we
    used was not an infringement in any shape or form; but rather
    than run the chance of going to a tribunal where I was fighting
    with a man of straw, I have consented (thinking it was prudent
    to do so) to pay £200.”

Mr. Woodcroft, in keeping with all this, testified—

    “I know of existing Patents which are but old inventions, as
    old as the hills.”

The following extract from the Transactions of the National Association
for the Promotion of Social Science presents another illustration of the
mischief the Patent system works:—

    “The Patent in question having been purchased for a trifle by
    Mr. Foxwell, its merits were subjected to close scrutiny, and
    the specification being found to be defective in some respects,
    but possessing the quality of elasticity from the vagueness
    of its phraseology, it was resolved to improve it under the
    Disclaimer and Amendment Act. After undergoing a compound
    operation analogous to pruning and grafting, it was found to
    embrace almost every kind of shuttle sewing machine. In other
    words, it was hoped by the possession of this invaluable Patent
    to control nine-tenths of the sewing machine trade of Great
    Britain. Fired with this idea, Mr. Foxwell commenced legal
    proceedings against a well-known sewing machine manufacturer
    for compensation for an alleged infringement of his amended
    Patent, and at the third trial succeeded in driving his
    opponent into a compromise, whereby the sum of £4,250 was paid
    in liquidation of all demands. Encouraged by this success, he,
    through his solicitor, apprised the trade of his intention to
    levy royalties on the users of all needle and shuttle machines
    other than those manufactured by his licences, and, failing to
    bring many to his terms, he filed bills in Chancery against 134
    defaulters.”

Mr. Abel, of Chancery-lane, in a recent pamphlet, writes thus, to show
how, in self-defence, Patents require to be taken:—

    “In many cases an inventor takes out Patents for immaterial
    improvements that he is continually making in his processes or
    machinery, merely for the purpose of indisputably publishing
    those improvements, in order thereby to prevent the chance of
    his being debarred from the use of the same, through a Patent
    being obtained for them by somebody else.”

The following statement is authenticated by Mr. Grove:—

    “I had at one time great doubts about it, but things have
    arrived at a dead lock. The Courts now really cannot try these
    cases. We have at these very sittings three Patent cases made
    remanets because they cannot be tried; they interfere too much
    with other business. We have at this moment going on a Patent
    trial which is now in its fourth day. We have had within, I
    think, a week another trial of a Patent, which lasted seven,
    and a third which lasted five days. During the time that these
    Patent cases have been going on there have been heavy Patent
    arbitrations going on, two of which I can speak to myself; one,
    I think, lasted seventeen days, and the other, which involved a
    very simple issue, lasted six or seven days. Those arbitrations
    went on contemporaneously, and the cases were obliged to be
    tried by arbitration because the Courts could not try them; it
    would have occupied too much public time. While these cases
    have been going on several Patent cases have been also ready
    for argument in banco, and one has been postponed.”

On this part of the subject I again cite Mr. Platt:—

    “There being an adjournment, for example, for a fortnight or
    three weeks, is there constantly a fresh burst of evidence to
    meet the difficulty raised at the last meeting?—Yes, it is so;
    and that prolongs the case very much; in fact, the case that
    I have in my mind now I have no doubt will cost the parties a
    sum of £4,000 or £5,000. I cannot see how it is possible for
    the verdict to be against them, for it has been a frivolous and
    vexatious proceeding from the beginning, and with the idea of
    extorting money.”

And Mr. Scott Russell:—

    “In your experience have you not seen a great number of
    dishonest litigants, plaintiffs who bring actions in the way of
    persecution, and defendants who desire to destroy a Patent, and
    where one or other of the parties for the most part acts in bad
    faith, trying to injure his adversary in any way that he can?—I
    should say that the greater number of Patent cases are cases of
    oppression.

    “Have you known cases of oppression where the patentee has been
    the oppressor?—Yes, frequently.

    “Have you known cases of patentees with a good Patent, and in
    which there has been what may be called a dishonest attempt to
    destroy it?—Yes, I have known both on a very large scale; for
    example, there was the great hot blast case. I was engaged in
    that from the beginning in the capacity of arbitrator; and in
    that great hot blast case the whole litigation arose from the
    ironmasters, who were making enormous sums of money, wishing
    to get rid of a very small Patent rate per ton, which had
    accumulated to an enormous sum in consequence of the success of
    the Patent. The expenses in the hot blast Patent case amounted,
    I should think, to more than £100,000.”

In the celebrated capsule case, the expenses have been somewhere about
half of that enormous sum. In another case, about three-quarters of it.
How true, then, is the following, from _Chambers’ Cyclopædia_:—

    “When a Patent has been granted, if it is of such a nature
    as to lead to competition, infringements are almost matter
    of course; and the only mode of discovering and checking the
    infringement is so ineffective that inventors generally pass
    their lives in constant litigation, fighting a succession
    of imitators, who often have nothing to lose by defeat, and
    therefore entail all the greater burden on the legitimate
    manufacturer. It has been said that not more than three per
    cent. are remunerative. A Royal Commission has lately been
    engaged in inquiries as to the best mode of remunerating
    inventors and improving the law with reference to
    infringement; but it is doubtful how far the subject is capable
    of being put on a better footing, so many difficulties being
    inherent in it.”

And how many of these pernicious Patents do honourable members think have
been repealed? Allow me, as to this, to quote Mr. Grove—

    “... Very few Patents have been repealed, and, generally
    speaking, the patentee has been victorious.”

And the Commissioners’ Report:—

    “Number of Patents repealed by _scire facias_ from 1617 to October,
      1852                                                             19

    “Number of Patents repealed by _scire facias_ from October, 1852,
     to December, 1861                                               None.”

A natural question suggests itself, Who is to get a Patent, since in many
cases there is a plurality of almost simultaneous inventors? Listen to
the words of Mr. Webster, Q.C., author of well-known books on Patent-Law:—

    “I have frequently had brought before me five or six Patents
    for the same thing within two or three years, or perhaps even
    within a year. I remember a remarkable case of a Patent for
    an improvement in railway wheels, where there were as many, I
    think, as six Patents almost within six months.”

Sir W. Armstrong shows that sometimes the chief benefit of inventions
goes to the wrong parties:—

    “A person obtaining a Patent for a crude invention prevents
    other persons from entering upon the same ground unless at
    their own peril, and I have known cases where, in the ignorance
    of the existence of a Patent, improvements have been made, and
    practical value given to an invention which has been previously
    patented, and then that patentee has come forward and said,
    ‘That is my invention, and you must pay me for using it.’ Other
    people have given additional value to his Patent, that is to
    say, they have made improvements which he can appropriate to
    his Patent, and in that way it gives it an additional value.
    The mere conception of primary ideas in inventions is not a
    matter involving much labour, and it is not a thing, as a rule,
    I think, demanding a large reward; it is rather the subsequent
    labour which the man bestows in perfecting the invention—a
    thing which the Patent-Laws at present scarcely recognise.

    “But you are unable to do so, because you cannot interfere with
    the Patent over it. Do you find practically that that clogs the
    progress of invention?—I will take one of my own inventions. I
    will take an hydraulic crane, for example, which I will suppose
    that I do not patent, and I will suppose that another person
    invents an improved valve and applies it to hydraulic cranes,
    and that he patents that improvement upon hydraulic cranes;
    clearly the result of that is, that if it gives an improved
    character to the whole machine he will obtain the monopoly of
    the machine, because he has a Patent for the improvement, and
    that carries with it the machine itself.”

Mr. Webster shows how it is that men of science, the real discoverers,
miss reward:—

    “The number of inventions brought out by purely scientific
    people I believe to be very few, and for this reason: purely
    scientific people want practical knowledge to enable them to
    carry out their own ideas; the mass of inventions, I have no
    doubt, are made by workmen, or persons of skill and science
    engaged in some actual manufacture.”

Mr. I. K. Brunel tells—

    “Cooke and Wheatstone derived, I believe, a large sum of money
    from the electric telegraph; and I believe you will find fifty
    people who will say that they invented it also. I suppose it
    would be difficult to trace the original inventor of anything.”

Sir W. Armstrong speaks regarding that frequent case—

    “An idea which is present to the minds of very many persons
    at the same time. Without any reference to his competency
    to develop that idea, and to give it practical value, he is
    allowed to have a monopoly of it, and thereby to exclude all
    other persons.”

He points out that—

    “As soon as a demand arises for any machine, or implement,
    or process, the means of satisfying that demand present
    themselves to very many persons at the same time, and it is
    very unfair, and very impolitic I think, that the person who
    gets first in the race to the Patent-office should have the
    means of preventing all others from competing with him in the
    development of that particular means of process.”

Mr. Grove, Q.C., eminent in science as in law, hints at a remedy:—

    “I am speaking of classes of inventions which, if they may be
    called inventions at all, would inevitably follow the usual
    course of trade and the fair scope which every man should have
    for modifying or improving his commodity. I would not shut out
    the public from those things. I would exclude from Letters
    Patent those changes which would naturally follow in the
    ordinary uses of the machines. I would not prohibit a tradesman
    from exercising the same ordinary skill in using his machine
    as we should all be expected to exercise in anything which we
    happened to make or from changing its form.”

Another question as naturally thrusts itself forward, How far have we
benefited by having more Patents? Although the Act of 1852 has greatly
multiplied the number, Mr. Woodcroft, the intelligent head of the
Patent-office, gives the following answer:—

    “There has been no considerable increase of bonâ fide Patents
    compared with the old law?—No.”

Very suggestive are the following observations of Mr. Grove, as showing
which are the kinds of invention, so-called, that pay best, and how
absurd, if people would reflect, they must consider our present mode of
rewarding and stimulating invention:—

    “A Patent may be an extremely valuable invention; for instance,
    the manufacture of aluminium is of the utmost importance,
    but it was of very little trade value for a long time.
    When aluminium was first made what I may call a practical
    manufacture, it was of no value to any tradesman at all; it
    would take probably ten or twenty years before such a thing
    could have any approach to practical value. On the other
    hand, the most frivolous Patent—the turn of a lady’s hat, the
    cutting of a shirt-frill, or a new boot-heel—may be of very
    considerable value, from the number of bootmakers all over the
    country who would have to order it, every one of whom would pay
    an extremely trifling licence duty, and therefore the Patent
    would be a very good Patent to the patentee. In my judgment
    those are not good subjects for Patents, and there the opponent
    would have no interest equivalent to that of the patentee to
    meet him.

    “Although I know that the Law Courts have come step by step to
    include a greater number of inventions, yet I should not call
    an improvement in a shirt-frill, that is to say, a peculiar
    method of cutting the little puckered linen which is sewn and
    used for shirt-frills, or a particular shape of the brim of
    a lady’s hat (I am speaking of existing Patents), a proper
    subject for a Patent.”

The following is from the evidence of Sir Francis Crossley, Bart., M.P.:—

    “A Patent was taken out for simply putting india-rubber at the
    end of a glove, so as to make it tight round the wrist; that
    might have been considered a frivolous Patent, but I believe
    that it was thought to be a very good one in the trade, and it
    was new and useful.”

So Mr. Richard Roberts, of Manchester—

    “In the case of an improved button, the Patent pays very well.”

Of another class of illegitimate Patents, Mr. Newton, the eminent Patent
Agent, says:—

    “Patents for obvious applications.—I may take for instance the
    use of alpaca for covering umbrellas. There is no invention in
    it.”

In 1851 Mr. Carpmael was as distinct and condemnatory:—

    “A multitude of things for which Patents are granted have no
    invention in them; in nineteen cases out of twenty, if there
    were cheap Patents, they would be for things which already
    exist, and people would only use Patents for the purpose of
    advertisement and publication.

    “If you grant a Patent, and give to a man the means of
    advertisement, for a small sum of money, he will not
    investigate it in the slightest degree in the world; he does
    not inquire, and does not wish to inquire, but he goes and
    spends his money, and then he advertises, because the Patent
    appears to give him a standing different from his competitors
    in the same way of business.”

In 1829 Mr. Farey, Patent Agent, went further:—

    “I have urged the utter worthlessness of their Patents, but
    they did complete the specification; they have sometimes
    acknowledged, and said perhaps they might nevertheless sell the
    Patent to some one who did not know that fact.”

Mark now how Patents hinder progress in manufacture. Hear Mr. Brunel:—

    “Take the Electric Telegraph Company. I believe we should
    have had that telegraph much improved, and that it would be
    working much cheaper, and that we should have had it all over
    the country, but for the misfortune they laboured under, of
    having Patents which they were obliged to protect; and they
    were obliged to buy up everybody’s inventions, good or bad,
    that interfered technically with theirs. I firmly believe that
    they have been obliged to refrain from adopting many good
    improvements which they might have introduced themselves, but
    did not, because they were afraid that it might shake their
    Patent; and I believe that the stoppage put to inventions by
    this state of things is far greater than would result from
    secrecy.”

The same is certified by Sir W. Armstrong:—

    “I am quite satisfied that a very great number of inventions
    which have remained inoperative for years and years, many
    of which I could easily name, would have been brought to
    perfection very much sooner if it had been open to all the
    intellects of the country to grapple with the difficulties of
    them.

    “May we take it that under the present system, if a man has
    obtained a Patent with little or no inquiry, although that
    Patent would not stand investigation if opposed, yet if the
    patentee is content to impose a moderate tax upon those who
    want to use his invention, they will pay that sum without its
    being worth anybody’s while to contest it?—Yes.

    “Do you believe that the cases of that kind are very
    numerous?—Very numerous, and the cases are still more numerous
    in which the existence of a monopoly simply has the effect of
    deterring other persons from following up that particular line
    of improvement.”

Another effect is the restraining of publication. Hear Mr. Richard
Roberts’ thrilling representations:—

    “I have a list of something like 100 inventions that I should
    have patented thirty or forty years ago, but for the cost.

    “I could mention one by which many lives would have been saved
    if I had had a Patent for it.

    “I very rarely make models, but I had one made for this. It was
    made many years ago. I invented it in 1830, and I mean to say
    that, if it had been put into practice, things would not have
    happened which have happened, and which have caused the loss of
    many lives, as connected with railways.”

I adduce this evidence to prove that inventions actually made are kept
back just now. I don’t require to go far for a party who has two or
three small inventions (not connected with his own line of business);
but—such is our “system”—no ready means to publish, and so has for years
kept them back. But a more remarkable instance is present to my mind.
Since about twenty years the same party, having been then consulted by
an _employé_ of a house near Birmingham, is the reticent possessor of an
inventor’s secret. That inventor’s name he does not know. His invention
is ingenious, and may be practicable. It affects an article of universal
consumption, and, so far as I know, has never been patented or thought of
by anybody else than he who confided the secret, nor introduced to use
by him, although, in my opinion, sufficiently promising to be worthy of
attention.

One of the ways in which Patents hurt trade is shown by Mr. Platt:—

    “Are there not some large manufacturers who like to keep the
    monopoly of a Patent in their own hands, who obtain money and
    go on manufacturing without granting licences to others?—Yes.”

Sir W. Armstrong testifies to this power to refuse licences:—

    “Is it not the case that such possessor could refuse you a
    licence, and so prevent you from making the improvements
    altogether?—Certainly he could.”

Lord Chelmsford confirms the legality of this procedure:—

    “If he chooses to work the Patent himself exclusively, it is
    only doing what the law permits him to do.”

Where there is not downright refusal, Sir W. Armstrong shows that
patentees ask too much:—

    “I have known patentees very exorbitant in their demands for
    licences—far beyond the merits of their inventions.

    “In that case the power of fixing an exorbitant price, really
    preventing the use of the article altogether, operates very
    disadvantageous to the public?—No doubt of it.”

So Mr. Newton:—

    “The claims of patentees are very frequently, and I may say
    generally, excessive, and beyond the real value of their
    inventions; but there may be cases in which new conditions of
    things arise, and the invention, if invention it may be called,
    becomes a matter almost of necessity, and the public must have
    it. The case which has been put, I think, is a very strong one,
    in which a public company or a large capitalist buys up all the
    existing Patents, and thereby acquires a power which may be
    exceedingly oppressive.

    “... I have seen much folly in the refusal of licences. I
    introduced the sewing machine into this country. I sold it for
    a small sum, and I offered some years afterwards to the owner
    of the Patent as much licence-money as 10_l._ per machine, and
    that was refused.

    “A poor man invented and patented the making of ‘cock-spurs’
    (supports for dishes and plates while submitted to furnace
    heat) by means of dies, and established a small business upon
    the manufacture. Some years later a gentleman improved upon
    the invention so far as to make the cock-spurs 500 at a time
    instead of singly. The earlier Patent being brought to his
    notice, he desired to make terms with the original inventor,
    and offered him a liberal sum, together with the sole right to
    sell the new manufacture in his own locality (the potteries).
    He could not, however, be brought to accept these, or indeed
    any terms; but, contrary to advice, commenced an action for
    the infringement, and was cast by reason of an unimportant
    claim in his specification being untenable.”

As a preventive of this abuse, and almost as a _sine quâ non_ in the
Patent system, “compulsory licences” have been proposed (see the
proceedings of the Social Science Association, 1858, 1860, ’61, ’62, ’63,
’64), but the Royal Commission has reported against them as impracticable.

No wonder, then, that it is said the system hurts inventors themselves,
even those inventors who are patentees:—

    “Nothing could work greater injustice _qua_ the inventors
    themselves than the present Patent-Law does. Many most
    meritorious inventors under the present Patent-Law are utterly
    ruined, enrich others, and never pocket a farthing themselves;
    therefore the present law is as unjust as a law can be in its
    practical working.”

Listen to the elder Brunel:—

    “Almost invariably when the Patents come before the public, the
    beneficial interest in them is not held, to any great extent,
    by the original inventor, but that it has changed hands many
    times before it comes out before the public. I should say that,
    in the majority of cases, the original inventor gets little or
    nothing. In most cases the original inventor has a very small
    beneficial interest left in it, and in most cases I doubt
    whether, even in Patents that are saleable, he is much the
    gainer on the whole, taking into account his previous loss of
    time and money.”

Sir W. Armstrong points out how, and how much, poor inventors suffer:—

    “I have every week letters from inventors, and I dare say you
    have the same; I have scores of them. Poor men 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.
    Many a poor man is ruined by fancying he has made a discovery
    which, by means of a Patent, will bring him a fortune. He loses
    all relish for his usual pursuits, and sacrifices his earnings
    to a phantom.”

Mr. Spence agrees:—

    “I do not believe that any system of law could be devised which
    would enable a poor inventor in this country to fight his own
    battle. He can only fight it by interesting some capitalist,
    more or less wealthy, in the probable promise of his invention;
    the result is, as all know, that some ninety-eight out of every
    hundred Patents end in loss to the parties and are worthless to
    the public.”

Mr. Grove leads to the same conclusion from another point:—

    “If the patentee himself was a wealthy man and a large
    manufacturer, having 20, 30, or 40 Patents in his possession,
    he would struggle to the utmost to maintain his Patent; he
    would retain the ablest advocates and the ablest scientific
    witnesses; and there would be no chance of repealing the Patent
    unless the person opposing it had something like an equality
    of purse to go into the field. You never could get the battle
    fought if one side was wealthy, without the opposite party
    having something like equal powers to oppose him.”

Mr. Brunel thus states his conclusion:—

    “I believe them to be productive of almost unmixed evil with
    respect to every party connected with them, whether those for
    the benefit of whom they are apparently made, or the public.”

I proceed to call attention to the effect of Patents as seen and felt
in Government establishments. Before doing so I quote experience in a
private shipbuilding-yard.

Mr. Hall, the eminent builder of the Aberdeen clippers, says:—

    “As the sailor with his pockets full is a prey to the crimps,
    so is a ship-contractor a prey to Patent-mongers—patent
    windlasses, patent reefing apparatus, patent blocks, patent
    rudders, patent chain-lifters, patent capstans, patent steering
    gear, patent boat-lowering apparatus, patent paints, and
    numberless others, all attempting to hook on to the poor
    contractor. This would be no grievance, were we not aware that
    most of them are patent humbugs.”

Like many others, he thinks it very doubtful whether the inventor

    “Would not be as well without a law which still allows the
    strong to prey on the weak.”

The following is from the evidence of the Duke of Somerset:—

    “I appear to bring under the notice of this Commission the
    great inconvenience to the Admiralty of the present state of
    the law. The inconvenience consists in the apparent facility
    with which persons can obtain Patents covering a very large
    number of different inventions under one Patent. For instance,
    there is a Patent which one gentleman obtained some years
    ago in building ships for a combination of wood and iron.
    Now, it is almost impossible to build ships in these days
    without a combination of wood and iron. Therefore a Patent of
    that kind, where it is wide-spread, as it is in this case,
    brings us continually under difficulties with this patentee.
    Whenever we apply wood and iron, he is watching to see whether
    or not his Patent is invaded, and he complains and says that
    different improvements which we have made without any notion
    of his Patent have been infringements of his Patent rights....
    We do not know what Patents are now lying dormant; we never
    move without knocking against several. I think that we are
    stopped at every turn.... In the case of the screw-propellers
    the Admiralty, in 1851, purchased five different Patents,
    hoping that they should have peace by that means, but they had
    all sorts of claims afterwards; they were told that they had
    infringed different Patents, and they have had to pay for other
    Patents since.

    “Persons run and take out a Patent for what they think is
    going to be done in that way. There are a great many in the
    case of iron ships. I think that when the Warrior was built
    there were five or six persons who all said that their Patents
    were infringed, though I believe that, when the Warrior was
    designed, none of their Patents were known to the designer, and
    they had never been used.... They showed me different forms
    of shot which had been made in the Arsenal a great many years
    ago, but all of which had since then been patented by different
    persons, who claimed these forms of shot under their Patents.

    “Then there are cases of disputed claims by rival inventors,
    which are embarrassing to a department; we do not know who has
    a claim to a Patent, and sometimes when we buy a Patent of
    one person we are told that we have done a great injustice to
    another. I remember that when we paid for the Griffith patent
    screw, which was cutting off a small portion of the screw, I
    had repeated letters from Sir Howard Douglas, telling me that
    it was a great injustice to him; that he had invented all
    this, and that his fame was diminished, and that his rights
    were taken from him by the Admiralty, who had most unjustly
    and unfairly paid Mr. Griffith. Those cases are continually
    arising, and of course they are very inconvenient for a
    department: they not only take up a great deal of time, but
    they very often prevent some very desirable process being gone
    on with.”

Admiral Robinson said—

    “There have been twelve upon the construction of ships since
    1861.

    Mr. Bush                             Construction of ships.
    Mr. J. Clare                         Construction of ships.
    Mr. P. Drake                         Construction of ships.
    Mr. A. Lamb                          Construction of ships.
    Mr. W. Rae                           Keels, stern posts, &c.
    Mr. Thomas and Col. De Bathe         Mr. G. Clarke’s target.
    Mr. Truss                            Animal fibre. Armour plates.
    Mr. Beslay                           Preservation of iron.
    Capt. Wheatley                       Position of guns in ships.
    M. De Lapparent                      Carbonising timber.
    Commander Warren                     Bow rudder.
    Mr. Feathers                         Construction of ships.
    Messrs. Woodcraft, Smith, Ericsson,  Purchase of Patents for screw
      Lowe, Blaxland, and Mr. Currie.      propellers.
    Capt. Carpenter                      Screw propeller.
    Capt. Trewhitt                       Disconnecting apparatus.
    Mr. Griffith                         Screw propeller.
    Mr. J. O. Taylor                     Screw propeller.
    W. Ireland                           Cupola.
    Messrs. Laird and Cowper             Trimming coals in ships.
    ——                                   Distilling apparatus in ‘Defence.’

    “In those cases the patentees claimed compensation for
    infringement?—Yes; and it was necessary for the Admiralty to
    have recourse to their solicitor, and to enter into a very long
    correspondence.

    “It is very possible that you may infringe upon these Patents
    without knowing it?—Constantly. The inconvenience which the
    Duke of Somerset has mentioned resulting from Patents applied
    to shipbuilding is so very great that it is scarcely possible
    to build a ship, being a combination of wood and iron (and
    you always have some of each in a ship), without treading
    upon somebody’s Patent; and I am entirely of opinion that the
    Patents are drawn up for that especial purpose, without any
    idea of their being practically applied for the benefit of
    the public, but only that the patentee may lie in wait for a
    colourable evasion of his Patent taking place.”

Now I present the evidence of General Lefroy, deputed by the War-office:—

    “The expectations of patentees are very extravagant, generally
    speaking, and prior to trial it is very difficult to determine
    at all what is the value of an invention. As an example, a
    gentleman some time ago made a great improvement in cooking
    apparatus, and he assessed his own reward at a large portion
    of the whole saving in fuel which might be effected by the
    application of this improvement to an enormous extent upon the
    whole military consumption of the Crown, which would have come
    to many thousands of pounds. Such an improvement should not be
    assessed by the value to the Crown, but by what it cost the
    originator in intellectual labour or previous experiment, and
    its importance in a large sense.”

Let me next cite Mr. Clode, Solicitor to the War-office:—

    “If he has not the power either of keeping those improvements
    perfectly secret, or of securing them to himself by Patent,
    then the War-office authorities are placed in the position
    of having in all probability to pay private individuals for
    inventions or improvements actually made by their own officers.”

Next Mr. Abel, F.R.S., Head Chemist to the War Department:—

    “In your experimental inquiries, when you have happened to
    fall upon any discovery, you have not been much annoyed by
    claimants saying that they have had precedence of you?—Not at
    all, and it is to that that I referred in my first answer.
    We do not meet practically with those embarrassments during
    experiments, but we may meet with them in applying the details
    of improvements. For instance, I am at present engaged upon the
    working out of the application of gun cotton, the whole details
    of which application were communicated as a great secret to
    this Government by the Austrian Government.... While every care
    was taken by this Government to keep them secret, a Patent was
    taken out in this country for the whole improved process of the
    manufacture.”

Mr. Clode again:—

    “Some time after I commenced these experiments, while they
    remained a perfect secret, and while every care was taken
    by this Government to keep them secret, a Patent was taken
    out in this country for the whole improved process of the
    manufacture.... One of them who is present is experimenting
    upon gun cotton, but it is with him a matter of extreme
    embarrassment to know how to deal with the subject; if he
    discloses by way of specification all that he knows, he sends
    the invention or discovery he has made away to the winds—the
    very night that it is put upon the file it goes to Paris,
    Dresden, Berlin, and elsewhere. If he does not do that, he is
    afraid that some man will find out precisely what he has in
    view, and put a Patent on the file, and tax the Government in
    that way. So that we are upon the horns of a dilemma.”

If I were now to stop, and say not a word more, I might trust to the
candour of the House for an admission that the case against Patents is
proved, on the ground that the conditions of the Statute of Monopolies
have been systematically violated, these violations being of the very
texture and vitals of the institution.

But I proceed. If the House permit, I will now advert to the new
phases the question has assumed since the inauguration of free trade,
understanding by that term _le libre échange_, and not _la liberte du
travail_.

The pernicious effect of home Patents on trade with our Indian empire, is
stated thus by Mr. Rendel, in 1851:—

    “As engineer to the East India Railway, we had a little
    inconvenience the other day; we wanted to manufacture articles
    patented in this country, and we would have had to pay
    Patent-rights; it was a question whether we had not better buy
    the iron in India, and avoid the Patent-rights. Those cases,
    I think, are constantly occurring. The Patent-Laws not being
    applicable to India, people will not unfrequently order things
    to be manufactured in India to avoid the licence dues in this
    country; and the consequence was that I made an arrangement
    with the patentees at about one-half of the ordinary charge for
    the Patent in this country.”

In 1851 it was proposed, and in 1852 an Act was passed, to limit British
Patents to the United Kingdom, with exclusion of the Colonies. This
change was desired by an influential and intelligent portion of the West
India Association. Their conduct contradicted, and their experience
proves the fallacy of, the allegation so confidently made and repeated
in spite of its futility, by some interested or else ignorant parties,
that inventions thrive most where Patents exist—_i.e._, where trade
is trammelled with prohibitions or burdened with royalties. The home
sugar refiners exclaimed against an exemption which, being partial,
operated against their trade. The following is an extract from one of the
petitions presented by that body:—

    “That, so far as regards home manufacturers and producers, such
    a change of the immemorial usages of the kingdom is virtually
    a bestowal on parties carrying on the same businesses in the
    colonies of a right to use patented inventions fourteen years
    sooner than they.

    “That if, at any time, the British Parliament might have put
    home manufacturers on such an unfavourable footing, surely
    this cannot be supposed under free-trade and equalised duties,
    when they must task their utmost energies, and adopt every
    improvement in mechanism and processes, in order to maintain
    their ground.

    “That the use of future Patents, at the rates that have been
    freely paid by sugar refiners for Patents granted before now
    would subject each sugar house, of average size, to a payment
    of about £3,000 a year.

    “That to exempt their competitors in the colonies from such a
    tax (for tax it is, payable by order of, though not to, the
    State) is really to give them a bounty of that very large
    amount.

    “That, in so far as patent fees may be considered a premium
    for stimulating improvements, an equal share of the benefit is
    enjoyed by the colonists, who, therefore, should bear a due
    share of the burden.”

Soon after that time, protection having ceased, the unfairness of
burdening British manufacturers came more vividly into sight. How can
they compete with Prussia and Switzerland? Here is evidence regarding
those countries. From a Prussian witness:—

    “I am a member of the Board of Trade and Commerce, and at the
    same time a member of the Patent Commission.

    “Will you be good enough to state what is the system adopted in
    Prussia with regard to protection to inventions?—We have the
    principle in our country to give as much liberty as possible to
    every branch of industry and art, and, considering every sort
    of Patent as an hindrance to their free development, we are not
    very liberal in granting them. We merely grant a Patent for a
    discovery of a completely novel invention, or real improvement
    in existing inventions.”

From an important Swiss witness:—

    “There is no want of persons to import them into Switzerland,
    although those persons thus importing them obtain no
    monopoly?—When a Patent is taken out in France or England, the
    process is published; therefore it becomes the property of the
    public in Switzerland; the Swiss have access to the French or
    English Patents.

    “In that way the Swiss have the benefit of the invention
    without the charge of the licence?—Yes.

    “And so far they have an advantage?—Certainly.

    “When inventions in the watchmaking trade are made in France,
    are they immediately introduced into Switzerland?—I should
    think so, if they are useful.”

How, I ask, can British manufacturers compete with Prussia, which
prudently grants less than 100 Patents in a-year; or with Saxony, which
grants only about 134; or the Netherlands, which grant only about 42?
Rather, I may ask, how can they compete with other countries in general,
even those that grant Patents freely, seeing that it is not incumbent on
the British patentee to take a Patent in any other country whatsoever;
seeing also that, unlike some countries which grant Patents, we in most
cases do not terminate the currency of those we grant at the time when
the Patents taken elsewhere expire? Honourable members will understand
how serious is the disadvantage under which our manufacturers, and
with them, of course, the labourers and artisans who co-operate in
manufactures, are placed if they are precluded from using inventions
which their continental rivals may use. When licences are given by
patentees, the disadvantage is lessened, but not very greatly. The
House will agree when it hears how enormous are the royalties sometimes
exacted. For a set of inventions in the iron trade, which is not the
subject of Patents in Prussia, a single firm is said to be paying at the
rate of £16,000 every quarter. Let me quote from a leading article in the
_Engineer_:—

    “Owing to the invalidation of his Austrian Patents, Mr.
    Bessemer derives no pecuniary benefit from the working of
    his inventions in that country. This is also the state of
    things in Prussia, whose really iniquitously-managed Patent
    Commission have refused to give Mr. Bessemer any Patent at
    all. The great Prussian steel works there manufacture Bessemer
    steel unweighted by any royalty. We regret this, not merely
    for Mr. Bessemer’s sake, but also on public grounds. Our steel
    makers are thus heavily handicapped in the industrial race with
    royalties of from one to even three pounds per ton.”

See a confirmation of this in the following piece of a private letter:—

    “The very heavy royalty payable under Bessemer’s Patent does,
    to a very great extent, prevent English manufacturers competing
    on the Continent for steel rails; but, from the accidental
    circumstance of continental manufacturers being obliged to buy
    a considerable portion of their raw material from this country,
    we have not been exposed to competition in England, as the cost
    of carriage backwards and forwards about equalled the benefit
    which the Germans enjoyed of paying no royalty.”

The sugar-refiners, in a printed document before me, put the case,
convincingly no doubt to all who will consider how small is the
percentage margin of profit in great businesses:—

    “If, for any invention, French producers of refined sugar
    should have only royalties of one per cent. _ad valorem_, while
    the British should have to pay royalties of five per cent., it
    is obvious the Patent-Law may in effect impose on the latter a
    most onerous differential duty.”

In that trade I myself, shortly before my retiring from commerce, paid
£3,000 for a year’s right to use a new process, which proved unworkable,
and had to pay a _solatium_ of £1,000 for leave to discontinue it.

The agricultural interest should not remain indifferent. Mark what was
told the Commission by Mr. Reeve, Registrar to the Privy Council. In
Mr. Bovill’s Patent there was charged a royalty of 6d. a quarter on all
the corn ground in Great Britain by millers who thought it desirable to
adopt his plan. Obviously the royalty in that case had the effect of a
protective duty leviable for individual benefit, and enabling foreigners
to undersell in the British markets. And what title to this power had
Mr. Bovill? He was not the inventor. Another case is exhibited in the
following extract from a private letter with which I am favoured, from a
highly respectable quarter:—

    “Patents have become so numerous and so various, that it is
    not safe to use any piece of machinery, or make any variation
    without first making a careful search to ascertain whether it
    is not protected by a Patent. The Patent-Law has also been
    the cause of much litigation, there being very few Patents of
    any real worth but have had to go through the ordeal of the
    Law Courts, and there can be little doubt that injustice has
    frequently been done both to patentees and to the public. A
    case of considerable hardship connected with our own trade
    occurred regarding the application of the exhaust to grinding
    purposes. It was clearly proved at the trial that the machine
    for which the patentee claimed protection had been in public
    use in Denmark, where it had been seen by a Glasgow miller,
    who erected a similar machine on his premises in Glasgow,
    but hastily threw it aside without putting it to a proper
    test prior to the date of the Patent, but it was held that no
    profitable use having been made of the machine by the Glasgow
    miller, the Patent was good and perfectly protected. In our
    opinion a Patent obtained in such circumstances should never
    be allowed to stand, and if some means could be devised for
    ascertaining the circumstances beforehand, it should never be
    granted. The trade suffered very considerably in consequence
    of this Patent being sustained, and the consequence was,
    that although the patentee was not the original inventor, he
    pocketed a very large sum of money.

    “A more recent instance has occurred, however, of a large sum
    being pocketed by parties not the inventors of the article
    patented. We can, however, only give you the figures as
    popularly reported, without vouching for their accuracy, and in
    relating the story we shall endeavour to reply to your queries
    _seriatim_. 1st, The patented article is a machine for dressing
    millstones by means of a black diamond, or piece of ‘bort,’
    instead of by the hand with picks. It was originally patented
    in France by the party said to be the inventor, and shortly
    afterwards was patented by him in this country. 2nd and 3rd,
    A Leith commission agent (a German) and an Edinburgh miller
    saw the machine in the Paris Exhibition of 1867, and induced
    the patentee to bring it over to Scotland for trial, and
    ultimately they, in conjunction with a third party, purchased
    the patentee’s right for the whole kingdom for £4,000. 4th,
    These parties immediately put the machine in the market, and
    it was at once seized hold of by speculators, who readily gave
    most extraordinary sums for it. One party is said to have paid
    £40,000 for the right for a dozen counties in England; another
    £15,000 for three counties; and another £20,000 for some
    counties in Ireland: the whole sum realised by the original
    purchasers amounting, it is said, to upwards of £150,000. 5th,
    The consequence is, that such enormous sums having been paid
    by the speculators, the trade can only get the use of the
    machine by paying a most exorbitant price, and hitherto it has
    remained all but a dead letter. We cannot give you in round
    numbers the amount expected to be realised by the speculators,
    but the price originally charged by them would have yielded
    four or five times the amount they paid if the whole trade had
    become purchasers. This machine has not yet been the subject of
    litigation, but there is every probability that it soon will
    be.”

But I can reproduce a case where the effect was far, far worse,
communicated to me in a private letter:—

    “The patentee of the Howard series of improvements in
    sugar-refining granted licences to houses in Liverpool and
    Hull, with a condition in each case that he would not grant a
    licence to any party carrying on business within seventy miles
    of either town. A sugar refiner of long standing, established
    in Sheffield, applied for a licence, and was refused for the
    reason above stated, Sheffield being just within the prescribed
    distance. The consequence was, he had to carry on his
    manufacture for nearly fourteen years on the old system; and
    during this period sustained great losses by working, which he,
    as well as parties cognisant with the facts, attributed to the
    disadvantage he was compelled to carry on under. His fortune
    disappeared, and he became insolvent.—I am, &c.

    “Sheffield, December 17, 1863.”

This distressing result will, I trust, drive home the conviction that,
great as is the evil of multiplying Patents, it would be but a mitigation
not worthy of being looked to as a cure, to get the number lessened.

If in an earlier part of this address I have shown that the condition
not to produce “general inconvenience” has been preposterously set at
nought, surely these passages prove no less conclusively that there
has been equal disregard of the condition not to “hurt trade.” I will
satisfy myself, and I hope the House, with one extract only to prove what
I apprehend is the rule rather than the exception, that Patents offend
against the other condition, not to “raise prices.” It is from a paper
read by Mr. Lowry Whittle before the Statistical Society of Dublin:—

    “I was informed lately of a case in the North of England where
    a successful patentee produced a machine at the cost of £200
    for working in the linen trade. On this machine his royalty is
    £1,000.”

I may give one instance from my own experience, where the pretensions
of the applicant for a Patent were equal to about a farthing a pound on
all the sugar that the process perfected. The House may understand the
hardship this would inflict on the population when told that it was for
the use of a single process only, or rather of a machine invented by
another, an engineer firm, who had overlooked, and not included in their
Patent, its applicability to sugar. My experience in that case was very
instructive. Pardon my introducing a few particulars. I have no reason
to think the idea of applying the machine to the refining of sugar was
original; on the contrary, it had been already made practical on the
Continent. Nor was the idea patented by my friend alone; on the contrary,
to several persons it had occurred, by some (I forget how many) it had
been patented. One of my partners and I had a good deal of travelling
in England and Scotland, when we discovered the first patentee of the
application at length. We traced the indubitable priority home to a
good neighbour, whose office was within a bow-shot of a sugar-house of
which I myself was managing partner. He told me, when I called about his
Patent, that he had not attended to it for years. I regret to be able
to add that he was afterwards led, by representations which I will not
characterise, to part with his privilege—it was really a very valuable
one—for a most inadequate consideration, to a person who had applied
for a parasitical Patent for something, the value of which could not
be substantiated. Perhaps the worst of all is, that the really most
meritorious person, the patentee of the machine, got comparatively
little advantage from its new but natural application. A coalition was
formed whose terms violated one of the conditions to which I have called
attention, by charging an exorbitant price for the machines, and, what is
the greatest mischief of Patents as now administered, by further charging
high royalties proportioned to the quantity of work they did.

Now will the House consider why it subjects the nation to all this
inconvenience, loss, and expense? It is not because without it we would
miss many important inventions. The groundlessness of such a fear has
already been indicated with sufficient plainness.

The House can hardly doubt, from its individual acquaintance with what
goes on in the world, and from the extracts I have troubled it with,
that whatever argument in favour of maintaining a Patent system may
be founded on the claims of inventors, the material interests of the
nation would suffer little from the cessation of Patents as a stimulus.
Unquestionably, if the system induces some inventions to be made and
published, it deters others. What we gain is a matter of doubt. That much
inconvenience is inflicted by it, and much disadvantage and very heavy
burdens, is no matter of doubt. It is a case in which we have to balance
the positive disadvantages against the supposed advantages. To enable the
House to weigh these, by seeing how few inventions we would lose by total
abolition, a few more quotations may be permitted.

Very significantly Mr. Richard Roberts answers:—

    “Would the absence of Patents for inventions, in your judgment,
    have any effect in producing secret trades; or have you had
    any opportunity of judging whether non-patented inventions are
    used much in secret trade?—I do not think there is much secret
    trade, but I know this, that no trade can be kept secret long;
    a quart of ale will do wonders in that way.”

Let me adduce Mr. Woodcroft:—

    “Do you think there is any natural tendency or propensity in
    inventors to keep to themselves their inventions, or have they
    a natural tendency to make them known?—The natural tendency of
    an inventive mind is to make the invention known.”

I now adduce the late able Mr. Fairrie:—

    “You believe that the same energy of mind would be displayed,
    and the same anxiety to make new discoveries felt, whether
    there were this hope of protection or not?—I think so; in the
    case of manufacturers certainly. I think the great bulk of
    improvements proceed from the manufacturers themselves, and not
    from mere inventors.”

Hear Colonel Reid, so well entitled to speak:—

    “Supposing the law were so modified as to make the acquisition
    of a Patent easy and simple, and to provide for the publication
    at the earliest possible period, do not you think there would
    be more inducement to the disclosure of the secret under such a
    system than if all privileges of the kind were abolished?—I am
    inclined to think that the advance in improvement in all our
    arts would be greater by leaving them entirely unshackled.”

Sir W. Cubitt was asked—

    “Have you ever been an inventor yourself?—Yes, of many things;
    but a patented inventor of but one.

    “You have taken out a Patent?—I took out a Patent in the year
    1807.

    “Has your attention been at all directed to the advantages or
    disadvantages of the present system?—Yes, it has been drawn to
    the subject very frequently indeed; but the more it was drawn
    to it, and the more I saw of it, the less I approved of it; but
    with that disapproval I could not satisfy myself how to devise
    anything much better; whether to make alterations, or whether
    to do away with Patents altogether would be best, I can hardly
    determine.

    “Will you state, generally, your objections to the present
    system?—The objections to the present system are the very
    advanced state of scientific and practical knowledge, which
    renders it difficult to secure anything. The principles of
    mechanism being very well known and very well understood,
    inventions involving exactly the same principle and to effect
    the same object may be practically and apparently so different,
    that Patents may be taken out for what is only a difference in
    form, intended to produce the same effect, without there being
    any difference in principle.”

So Sir W. Armstrong:—

    “My firm conviction is, that if there was no artificial reward
    for invention you would have just as much as at present.”

Mr. Grove perhaps goes at least part of the way:—

    “The Patent is to encourage invention; if, therefore, you would
    get the same inventions as we now get without Letters Patent,
    I would have no Letters Patent at all. I believe that, with
    respect to the minor class of inventions, you would get them.”

Mr. Platt also has his doubts:—

    “Is not almost every Patent which is now granted a Patent for
    an improvement?—A great many Patents are granted for things
    which are no improvement at all.

    “I would simply limit the Patent-Law to that extent. I think
    there are so many Patents granted that it is a great question
    with me, I confess, if Patents for these combinations are
    to be granted, whether it would not be better to abolish
    the Patent-Laws altogether, as it becomes such a nuisance in
    conducting a large business.”

How emphatic was Mr. I. Kingdom Brunel:—

    “Do you think that there would be an equal inducement for a
    man to turn his attention to improvements if there were no
    Patent-Laws, as compared with the present state of things,
    which lead him to the expectation and hope that he will obtain
    some exclusive advantage from the discovery of some new
    improvement?

    “I feel certain of it; I have felt it very strongly, and
    it always struck me as surprising that it was not seen by
    everybody else; but we have so long been in the habit of
    considering that the granting of an exclusive privilege to a
    man who invents a thing is just and fair, that I do not think
    the public have ever considered whether it was, after all,
    advantageous to him. My feeling is, that it is very injurious
    to him.

    “My impression is, that in every class of inventions you
    would practically in the end have a more rapid supply and
    increase of inventions than you have now; I believe that men
    of science, and all those who do it for pleasure as well as
    for profit, would produce more, they would be less interfered
    with by existing Patents, and they would really produce more; I
    believe that the working class, the smaller class of inventors,
    would introduce very much more. With respect to that class
    of inventions, which I believe to be very few in number,
    though they are talked of very much, which really involve
    long-continued expenses, I believe they would probably be
    brought about in a different manner. I wish, however, to have
    it understood that I limit my observations to the present state
    of things. I do not wish to express any opinion as to what
    might have been formerly the effects of Patents, or whether
    they did originally encourage inventions or not. I believe that
    in the first place they are very prejudicial, on the whole, to
    a large class supposed to exist of inventors, and principally
    from these circumstances: the present state of things is this,
    that in all branches, whether in manufactures or arts of any
    sort, we are in such an advanced state, and every process in
    every production consists of such a combination of the results
    of the improvements which have been effected within the last
    twenty or thirty years, that a good invention now is rarely a
    new idea.”

So likewise Mr. James Spence:—

    “The evils of the present system are serious. There is a charm
    in the name of a Patent which entices large numbers of men to
    neglect their own affairs in pursuit of some phantom. Where
    intellectual power exists of an inventive character, it will
    develop itself without any spur; it is, indeed, irrepressible
    in its nature. To such minds the stimulus of a Patent is
    superfluous.

    “Besides the progress of the arts, another change has occurred
    which affects this question. Formerly improvements made slow
    progress, and unless an inventor were protected for many
    years he had little chance of recompense. Now the power of
    advertising is so great and intelligence is so diffused, that
    any really useful invention can be brought immediately into
    operation and profit. Were Patents abolished, any one with an
    invention of value could find a manufacturer to take it up. It
    is true it would be open to the rest of the world as soon as
    found out, but the manufacturer would obtain the first start
    of all others, in itself a profit. Under the present system
    the legal protection breaks down in practice. The moment a
    specification is published, competing manufacturers strain
    their wits to contrive how to reach the same result through
    other means or modifications; in other words, how to infringe.
    Against this the patentee has no remedy, except proceedings at
    law of the most costly nature.

    “No change can be proposed in Patent-Law that will not be open
    to objections based on individual cases of hardship; but, on a
    comprehensive view of the subject in all its bearings, I hold
    that it would benefit the country to abolish the system _in
    toto_. Manufacturers would be relieved from present perplexity,
    delusions would no longer be kept up by excitement, an enormous
    waste of money would be stayed; and whilst the mass of
    worthless Patents would disappear, any of real value would be
    taken up on its merits and produce sufficient remuneration to
    the inventor.”

The Report of the Commission, founded on the evidence of which I have
shown the general character, contains the following just observations:—

    “The majority of witnesses, however, decidedly affirm the
    existence of practical inconvenience from the multiplicity of
    Patents. It is clear that Patents are granted for matters which
    can hardly be considered as coming within the definition, in
    the Statute of Monopolies, of ‘a new manufacture.’ It is in
    evidence that the existence of these monopolies embarrasses
    the trade of a considerable class of persons, artisans, small
    tradesmen, and others, who cannot afford to face the expense
    of litigation, however weak the case against them may seem to
    be; and a still stronger case is made out as to the existence
    of what may be called obstructive Patents, and as to the
    inconvenience caused thereby to manufacturers directly, and
    through them to the public.

    “Other instances will be found in the evidence of particular
    manufactures and branches of invention which are so blocked up
    by Patents, that not only are inventors deterred from taking
    them up with a view to improvement, but the manufacturer, in
    carrying on his regular course of trade, is hampered by owners
    of worthless Patents, whom it is generally more convenient
    to buy off than to resist. The evil also results in another
    practice, having the same obstructive tendency—namely, that of
    combination amongst a number of persons of the same trade to
    buy up all the Patents relating to it, and to pay the expense
    of attacking subsequent improvers out of a common fund. From a
    comparison of evidence, it cannot be doubted that this practice
    prevails to a considerable extent. We must also conclude that
    when the obstruction is not to be got rid of without the
    expense and annoyance of litigation, in a large majority of
    cases the manufacturer submits to an exaction, rather than
    incur the alternative.

    “We desire to call special attention to the evidence given by
    the First Lord of the Admiralty, and by various witnesses on
    behalf of the War Department, showing the embarrassment which
    has been caused to the naval and military services by the
    multitude of Patents taken out for inventions in use in those
    departments.

    “It has long been the practice, founded on judicial decision,
    to consider that the use or publication of an invention
    abroad did not deprive that invention of the character of ‘a
    new manufacture within this realm.’ It appears to us, and is
    generally admitted in the evidence, that the present facilities
    of communication subsisting between all parts of the world have
    done away with the only valid reason for such a construction of
    the words of the Statute of Monopolies. The object of allowing
    such Patents might fairly be, in an age of slow international
    communication, to encourage enterprising persons to go in
    search of, and to introduce to this country, useful processes
    employed abroad, but not otherwise likely to be adopted here,
    for the want of which we should long have been behind other
    nations. It does not, however, seem worth while to continue
    the same facilities now, when foreign inventions are most
    frequently patented in this country and in their native land
    simultaneously; especially, as we are well informed, that one
    result of the practice is to encourage unscrupulous persons to
    steal the inventions of foreigners and to run a race with the
    legitimate owner to get them patented here.”

The extracts which I have culled sufficiently prove that, in the opinion
of men selected because they were competent to speak with authority on
account of their character, ability, and experience, our Patent system
is “generally inconvenient” and is “hurtful to trade.” Being so, it
is inconsistent with the conditions on faith of which, while other
monopolies were prohibited by the Act, it was spared. But I rest my
case on absolute evils, without regard to that inconsistency. I am sure
nobody can go over the evidence as a whole, or even those scraps of
evidence which I have presented—I am well aware in a very promiscuous
and ineffective manner—without becoming convinced that the trade and
manufactures of this country are seriously obstructed, fettered,
retarded, harassed, and burdened, sometimes demoralised, often wronged,
or even robbed, by the multitude and vexatious character of Patents,
and by the claims and conduct of patentees;—that these Patents, though
very numerous, in general possess little merit, yet often produce large
revenues, the result of exactions from persons who use them, to the
assignees, rather than to the original grantees,—that the uncertainty
of receiving a good return (in place of which experience shows there
is, in most cases, disappointment or even positive loss), and the utter
incongruity existing between the earnings, where there are any, and
the merits of inventions, render the system of Patents an exceedingly
unsatisfactory way of stimulating invention or rewarding inventors;—and
that there is wide-spread dissatisfaction with things as they are, yet
despair of amendment, among the most intelligent of those portions of the
community for whose benefit the system is plausibly represented to exist.

The evidence goes to show that the poor man and the working man suffer
in two ways. Such cannot bring their inventions into play for want of
capital, and they could not, even if it were in that respect different,
make head against rich infringers who are able by the costliness of law
proceedings to set them at defiance. I might allege, also, that while the
expenses of patenting are clearly too heavy to suit the circumstances
of the poor, there is little or no favour shown by any influential
witnesses to propositions for reducing them, because of the tendency that
a suitable reduction would have to still further multiply Patents. Surely
this indicates sufficiently that there is something radically wrong in
the principle on which we proceed.

Allow me, while adverting to the case of the poor, to express my belief
that the Patent system has an effect on wages which demands the serious
consideration of the friends of working men. I believe it helps to
keep wages low. The abolition would work in this manner: whenever, in
any establishment, an improvement is introduced, the fact of its use
becomes, of course, speedily known throughout the establishment and in
other establishments. The _employés_ who in their ordinary occupations
must come to know what the improvement is and how to work according to
it—for this is a matter of necessity, especially now that operations are
conducted on a large scale, with the indispensable aid of men intelligent
and independent—very soon find they are in request. To prevent their
leaving, they are offered an advance, which itself in its turn may
be outbid. The rise which indisputably would result in the case of
individuals will, in my opinion, tend towards a general rise. If I am
correct in my anticipations, operatives and artisans are much injured
by Patent-Laws. But independently of this hypothetical advantage, a
good system of dealing with inventors will be beneficial directly to
operatives, by removing from trade the present hindrances.

Having seen how little store there is set on Patents by eminent
engineers, by manufacturers, and by the public services, let me appeal to
eminent statesmen. Among these I name foremost the apostle of free-trade.
Mr. Cobden told me, many years ago, that he was opposed to Patents; and
at a later period, Oct., 1862, he wrote:—

    “I have a growing doubt of the value and justice of the
    system, whether as regards the interests of the public or the
    inventors.”

Lord Granville, then Vice-President of the Board of Trade, the Chairman
of the Committee on the Patent Bills, told the House of Lords, on July 1,
1851—

    “The last witness was the Master of the Rolls, who,
    notwithstanding the experience he had had as one of the law
    officers of the Crown in administering the Patent-Laws, and
    although he took charge of the first Bill which the Government
    proposed on the subject, was decidedly of opinion that
    Patent-Laws were bad in principle, and were of no advantage
    either to the public or inventors.... All the evidence that
    had been brought before the Committee, both of the gentlemen
    who were opposed to the system of Patents and those who were
    most strongly in favour of it, had only tended to confirm
    his previous opinion that the whole system is unadvisable
    for the public, disadvantageous to inventors, and wrong in
    principle. The result of the experience acquired by the present
    Vice-Chancellor and Lord Chief Justice of the Queen’s Bench
    had raised great doubts in their minds as to whether a law of
    Patents was advantageous. The Chief Justice of the Common Pleas
    likewise had written him a letter, which he authorised him to
    make what public use of he pleased, declaring his concurrence
    in his opinion that a law of Patents was neither advantageous
    to the public nor useful to inventors.... The only persons,
    he believed, who derived any advantage from the Patent-Laws
    were members of the legal profession. Except perhaps warranty
    of horses, there was no subject which offered so many
    opportunities for sharp practice as the law of Patents. As
    regards scientific men, too, the practice of summoning them as
    witnesses on trials respecting Patents had an injurious, if not
    a demoralising, effect.... They sometimes allowed themselves to
    be betrayed into giving a more favourable opinion of the merits
    of an invention than was strictly accurate.”

Lord Harrowby judiciously said, in reference to the proposition then for
the first time made to exempt the Colonies from the incidence of British
Patents—

    “The colonial refiner would be enabled to avail himself of
    every new invention in the manufacture of sugar, to the
    prejudice of the home refiner, who would have to pay for the
    Patent-right.”

Lord Campbell—

    “Having been some years a law officer of the Crown, had some
    experience as regarded the question at issue, and he begged to
    say that he entirely approved of the view of his noble friend,
    Earl Granville.”

Sir James Graham, on Aug. 5 of the same year, observed—

    “There was also evidently great division of opinion among Her
    Majesty’s Ministers upon this subject. The Vice-President of
    the Board of Trade, in the House of Lords, when introducing
    this Bill, expressed a decided opinion adverse to the principle
    of Patents altogether. The noble Secretary for the Colonies
    (Earl Grey) agreed with the Vice-President of the Board of
    Trade, and now it was found that the advisers of the Crown had
    put an end altogether to Patents in the colonies. Was it right,
    then, to continue a system in England which had been condemned
    in principle by the advisers of the Crown? And were they to
    legislate upon a question which the divisions in Her Majesty’s
    Council rendered still more doubtful?”

Mr. Cardwell, sensibly and patriotically,

    “Would remind the House of the case of the sugar-refiners of
    Liverpool, who complained of this part of the Bill.”

I need not quote Mr. Ricardo, whose lamented death prevented him from
urging the present subject as he intended. Allow only the following
observations of Mr. Roche, who on the same occasion—

    “Entirely agreed that the Patent-Laws should be abolished
    altogether. They might depend on it that nine-tenths of the
    Patent inventions, under any law that could be passed, would
    be nothing less than so many stumbling-blocks in the way of
    improvement.”

Here is an extract from the proceedings of the British Association at
Glasgow:—

    “Mr. Archibald Smith was convinced that a majority of
    scientific men and the public were in favour of a repeal of the
    Patent-Law, and he believed its days were numbered. He held it
    was the interest of the public, and not the patentees, that
    should be consulted in the matter. This was a growing opinion
    amongst lawyers and young men of his acquaintance.”

I revert to the injurious influence of Patents in incapacitating
manufacturers to compete with their foreign rivals, and am able to submit
Continental testimony that such is the inevitable effect. The following
lengthy quotation will suffice from M. Legrand, Auditor of the Council of
State of France:—

    “There is in this institution not only an obstacle to the
    development of home trade, but also a shackle on foreign
    commerce.

    “The doors which we open by our Treaties of Commerce may by
    means of Patents be closed.

    “Let an invention be freely worked in Belgium; if in France
    it be patented, Belgian produce cannot enter there. Let
    the contrary be the case; we cannot export to Belgium the
    production which is free with us, but patented at Brussels.

    “Let us suppose, for example, that a new colour is patented
    alone in France, and that the patentee only permits the
    manufacture of the colour on payment of a high royalty: this
    colour will become dear, to the profit of the patentee alone,
    and the detriment of all; its exportation, or the exportation
    of articles dyed with this colour, into a country where the
    manufacture is free, will become impossible, because in that
    country they will begin to fabricate it, and its price will be
    diminished to the extent of the royalty exacted for it by the
    patentee.

    “The French producer will necessarily be placed in such a
    situation that he will be unable to sustain any foreign
    competition.

    “It is of consequence, so far as it depends on legislators,
    to place those countries on the same footing who unite in the
    peaceful, beneficent struggle of competition.

    “But with the sound notions which prevail amongst persons of
    intelligence, it is evident that the uniform solution to which
    every one would adhere cannot be one which would recognise
    Patents.

    “The making all discoveries free is the system which alone
    would have the chance of being adopted by all nations.

    “It would certainly put an end to more injustice than it would
    originate.”

I had the pleasure of being present at a numerously-attended meeting
of the Economists of Germany held at Dresden in 1863, which almost
unanimously adopted a resolution against all Patents; quite in harmony,
I may say, with formal resolutions of commercial and industrial
associations in that country and France.

The House must long ago have been prepared for the following conclusions,
which close the Royal Commission’s Report on the Law relating to Letters
Patent for Inventions:—

    “That in all Patents hereafter to be granted a proviso shall
    be inserted to the effect that the Crown shall have the power
    to use any invention therein patented without previous licence
    or consent of the patentee, subject to payment of a sum to be
    fixed by the Treasury.

    “While, in the judgment of the Commissioners, the changes above
    suggested will do something to mitigate the inconveniences
    now generally complained of by the public as incident to the
    working of the Patent-Law, it is their opinion that these
    inconveniences cannot be wholly removed. They are, in their
    belief, inherent in the nature of a Patent-Law, and must be
    considered as the price which the public consents to pay for
    the existence of such a law.”

This is signed by Lord Stanley, Lord Overstone, Sir W. Erle, Lord
Hatherley, Lord Cairns, H. Waddington, W. R. Grove, W. E. Forster, Wm.
Fairbairn.

The public understood this to mean that the Commission were by no means
satisfied that there should be any longer any Patent-Law at all. The
_Journal of Jurisprudence_ gives it this interpretation.

But I can adduce a higher and more authoritative exposition with regard
to the views of at least the noble Lord the Chairman of the Commission.
When the question was put as to legislation in conformity with the
Report, Lord Stanley told this House on June 10, 1865:—

    “The House ought first to have an opportunity fairly and
    deliberately of deciding upon that larger question which had
    not been submitted to the Patent-Law Commission—viz., whether
    it was expedient that Patents for invention should continue to
    be a part of the law.”

We all know there is in general society, and even among politicians
and men in business, an acquiescence almost amounting to approval of
Patents in the abstract. Its existence I attribute to unacquaintance
with actualities. I acknowledge that when the more able advocates of
the system state their reasons, these look conclusive enough, and would
be so if there were but one side of the case. What we, their opponents,
claim is that our objections be met. This, I apprehend, cannot be done
without, at least, leaving so much inevitable evil confessed as must
turn the scale. Some of these arguments that we hear are futile and
far-fetched enough to deserve to be repeated. Admitting obstructiveness,
a Chancery-lane writer pleads thus:—

    “This very prohibition causes others to exert themselves to
    invent different means by which the same or a better result
    may be obtained than by the invention which they are prevented
    from using, except by payment, and the result is competition,
    in the highest degree beneficial to trade, and an unceasing
    advancement and striving.”

Really no better is the reasoning of an official witness, who told the
Commission:—

    “Three-fourths of the Patents, Inventions of
    Englishmen.—Three-fourths of the applications for Patents,
    or thereabouts, are for the inventions of Englishmen; the
    remaining one-fourth are for the inventions of foreigners, for
    the most part Frenchmen and Americans. The country in which
    inventions are of the highest value will draw inventions to
    it from all others, and so long as any one country protects
    inventions by Patent, so long must all countries protect. Were
    England to abolish protection of inventions, inventors would
    carry their inventions to other countries. Switzerland does not
    protect, and consequently the Swiss take their inventions to
    other countries.”

Why? What harm though the British inventor should go abroad to patent or
even to work his invention? He must specify it in the country he goes to;
and cannot, will not, our artisans at once avail themselves, and revel in
the free use, of what he there records? Call our nation’s not rewarding
him a piece of doubtful policy, or want of generosity; but banish the
notion that our trade will suffer. It will gain.

But there are defenders of very different calibre: Mr. MacCulloch,[3]
Sir David Brewster, Mr. John Stuart Mill. It is meet I should inform the
House what are their arguments. I find them succinctly stated and well
put in Mr. Mill’s “Political Economy.” I will read the whole of that
gentleman’s observations, interlacing, for brevity’s sake, very short and
unargumentative dissents, if not replies:—

    “The condemnation of monopolies ought not to extend to Patents,
    by which the originator—”

Does Mr. Mill know that many an invention is patented by some person who
is not the originator, but only the first promulgator in Britain; still
more often, who is not the only originator?

    “of an improved process—”

I have already shown that the law, rightly read, can hardly be said to
sanction the patenting of a “process.”

    “is allowed to enjoy, for a limited period, the exclusive
    privilege of using his own improvement.”

Which means, the privilege of debarring all other people—some of whom
may, after him, or at the same time as he, or even before him, have
invented it—from doing what he is, and they also should be, allowed to do.

    “This is not making the commodity dear for his benefit, but
    merely postponing—”

For his benefit, and still more frequently and surely for the benefit of
a multitude of other individuals, who have less claim, or no claim at
all.

    “a part of the increased cheapness, which the public owe to the
    inventor—”

But not to him only, for he invents often along with others, and always
in consequence of knowledge which he derives from the common store, and
which he ought, as its participant, to let others share, if doing so does
himself no harm.

    “in order to compensate and reward him for the service.”

The real service, if it be “service,” is the communicating his knowledge.

    “That he ought to be both compensated and rewarded for it, will
    not be denied;”

But it does not follow, surely, even in Mr. Mill’s logic, that he should
be invested with monopoly powers, which “raise prices” and “hurt trade,”
and cause “general inconvenience.”

    “and also, that if all were at once allowed to avail themselves
    of his ingenuity, without having shared the labours or the
    expenses which he had to incur in bringing his idea into a
    practical shape—”

But which, very likely, were trifling, and if heavy, were incurred for
his own sake, and may have produced benefits to himself that sufficiently
compensated all.

    “either such expenses and labours would be undergone by nobody—”

Which is a wild assumption.

    “except very opulent and very public-spirited persons.”

The former are numerous; the latter ought to be; and the service is one
the nation may well expect of them. Why should not there be innumerable
Lord Rosses, Sir Francis Crossleys, Sir David Baxters, and Sir William
Browns, promoting beneficent commerce by their generosity; and why
should not manufacturers systematically combine as an association to
procure through science and experiment every possible improvement?

    “Or the State must put a value on the service rendered by an
    inventor, and make him a pecuniary reward.”

And why should we not prefer this alternative?

    “This has been done in some instances, and may be done without
    inconvenience in cases of very conspicuous public benefit.”

Well: that is a great deal; but why not in cases that are not conspicuous?

    “But in general an exclusive privilege of temporary duration is
    preferable—”

Now, mark the only reasons adduced:—

    “because it leaves nothing to any one’s discretion—”

That is, I suppose, Mr. Mill, to avoid trusting anybody—the danger from
doing which is imaginary, or at least avoidable—would let the nation
remain subject to proved frightful inconvenience and loss.

    “and the greater the usefulness, the greater the reward—”

Which, Mr. Mill rightly thinks, is what ought to be, but it is not and
cannot be what happens under Patents; for, on the contrary, rewards
depend mainly on the extent of use and the facility of levying royalties.

    “and because it is paid by the very persons to whom the service
    is rendered, the consumers of the commodity.”

Here Mr. Mill appears to regard, and it is right he should, manufacturers
as mere intermediates. Well: can they shift the burden which they, in the
first instance exclusively bear, from their own shoulders to those of
the consumer? Perhaps they could have done so before the inauguration
of Free Trade; but since that time, the thing is impossible, and so
will it ever be until the day arrive when either Patents shall apply to
all countries, and in all countries exactly the same royalties shall be
charged for their use, or else they are abolished.

    “So decisive, indeed, are these considerations, that if the
    system of Patents were abandoned for that of rewards by the
    State, the best shape which these could assume would be that of
    a small temporary tax imposed for the inventor’s benefit—”

Would he in general get it? And, let me ask, how collected—how
distributed?

    “on all persons making use of the invention.”

A thing impossible, however, even for conspicuous inventions; and to
which there is the further fatal objection that there must be none but
such recognised, which might be unfairness, as it certainly would be
partiality. If, as indicated, a tax on all users and consumers, will not
grants from the Exchequer be in the main fair enough as to incidence?

    “To this, however, or to any other system which would vest in
    the State—”

Why the State? Why not let inventors decide?

    “the power of deciding whether an inventor should derive any
    pecuniary advantage for the public benefit which he confers,
    the objections are evidently [!] stronger and more fundamental
    than the strongest which can possibly be urged against Patents.
    It is generally admitted that the present Patent-Laws need much
    improvement.”

It is not admitted that they can be made satisfactory, do what we will;
and I contend that no extent of mere improvement can overcome the
objectionableness of the restraints and burdens inseparable from the
system.

    “But in this case, as well as in the closely analogous one of
    Copyright, it would be a gross immorality in the law to set
    everybody free”—

Why, everybody is naturally free, and would continue free if the law did
not step in and cruelly take their freedom away, doing which is the real
immorality.

    “to use a person’s work”—

A fallacy—to use, it may be, his thoughts, which, as soon as they are
communicated, are no longer his only—and not at all to use his “work” in
any proper sense.

    “without his consent, and without giving him an equivalent.”

As if consent were needed to use one’s knowledge, and as if there could
or should be any equivalent.

    “I have seen with real alarm several recent attempts, in
    quarters carrying some authority, to impugn the principle of
    Patents altogether; attempts which, if practically successful,
    would enthrone free stealing under the prostituted name of free
    trade, and make the men of brains, still more than at present,
    the needy retainers and dependents of the men of money-bags.”

As to “free stealing,” hear what the greatest political economist of
France thinks—

    “C’est dans une mesure la même question que le free trade.”

As to the “money-bags,” Mr. Mill plainly is not aware that the dependence
he deprecates is the invariable, almost the inevitable, consequence of a
Patent system.

I am extremely sorry to differ on a question of political economy from
Mr. Mill. But with all due respect I submit that he has not, when writing
the passage which has now been given _in extenso_, realised what a Patent
is in practice. It is the price at which the State buys a specification.
The purchase is a compulsory one, with this peculiarity, that whereas the
inventor may or may not offer to sell—for he is left at perfect liberty,
as in a free country he ought to be, whether to patent and reveal (sell)
or not—yet if he do offer, it is the State, the maker of the law, which,
through the Sovereign, voluntarily puts itself under compulsion to accept
the offer, and—with a defiant violation which the frequency of the deed
in my view makes flagrant of sound principle—pays not out of public
revenues or any funds over which it has legitimate control, but out of
the means of private individuals, reached and extracted either in the
form of exceptional profits on goods the monopolist makes, or by his
levying of a tax called royalties on any of his fellow-subjects whom he
may of grace, if they comply with his demands, associate with himself as
sharers of the monopoly.

Such opponents’ impulses are excellent, but their plan is incompatible
with actual pre-existent interests. They omit to take into full account
the conditions of the everyday world which the statesman has to do with,
and might not unprofitably call to mind a story or parable of juvenile
days wherein certain wise men were represented as, after due counsel,
placing a favourite bird within high and close hedges in order to
gratify their tastes and enjoy melodious notes all the year round. The
conditions of winged existence had not been taken into account; theory
and sentiment could not be reduced to practice. Favouritism, constraint,
and isolation, being contrary to nature, failed. The nightingale loved,
needed, sought, and found freedom. To recall another book of youthful
days. Think of Robinson Crusoe, and the many new inventions his peculiar
position required and elicited. Let me suppose the neighbouring islanders
saw for the first time in his hands a cocoa-nut turned into a cup, in his
hut potatoes roasting in the fire, in his garden guano used as manure.
What would they have thought of Christianity and civilization, if he,
anticipating the pretensions of modern inventors, had alleged, on the
ground of first use, exclusive property in these manufactures, processes,
and applications, and had debarred the imitation for fourteen years? The
unsophisticated savages would have said, “We understand and allow your
claims to possess what you yourself make, but we do not understand, and
we dare not allow, your claim to possess what we make ourselves. You
are welcome to learn what we shall learn, and to do whatever you see us
do. We cannot sell for money the odours that rise from the fruits that
sustain our life; should we forbid to pick up and plant their seeds that
we throw away? Should we grudge the runnings over from the brimming cup
of knowledge which heaven puts into the hand, and the froth at the top
which the wind blows away?” Heathens are pleased to even work at what
is good for all according to opportunity. The fact is, the right of
inventors is too shadowy to have any recognisable existence where there
is not a submissive society to vend to or trample on, and a complaisant
state to compel their submission.

If he were a member this night present with us, I would appeal to Mr.
Mill as a philosopher. Seeing that the world is so framed that whereas
acquisitions of material property or things cannot be possessed in common
without the share or enjoyment of each person being lessened or lost,
it is universally possible that any number of persons, however many,
can possess and use, without any diminution of individual enjoyment,
knowledge or ideas in common, do not wisdom and humanity justly interpret
this as an indication that to interfere is to oppose the order of nature?

Let me appeal to him as a moralist. Seeing that to so interfere with
the communication and enjoyment of knowledge or ideas by limiting the
power and right to apply inventions to use is to withhold that whereby
one man, without loss to himself, may benefit his fellows, do not ethics
favour the philanthropic course which accords with the course that Nature
indicates?

I appeal to Mr. Mill as a political economist. Seeing that the order
of nature and the promptings of philanthropy are favourable to the
communication of inventions and their free use, is it the part of a State
to provide for the gratification of the selfish principle in man by
legislation framed to endorse, and facilitate, and almost to necessitate
it?

I appeal to Mr. Mill as a statesman, and ask, Is it consistent with
enlightened policy to place manufacturers in such a position, that they
are constantly tempted to conceal improvements they are using, from
fear to discover that they are infringing? Does he know so little of
mankind, that he expects them, the poorest as well as the richest, to
employ (and this would be requisite) suitable agents to search whether
any improvement they mean to adopt is already the subject of a Patent
that renders its adoption illegal, and also to institute inquiries as
to who, and where, in the wide world, is the holder of the Patent or
Patents, whom in that case he must first negotiate with and sue for
a licence? Does Mr. Mill think a manufacturer’s time is so free from
absorbing occupations that he can attend to the daily transactions of
the Patent-office, so as to inquire whether such and such a mysterious
application is an unintended, it may be, but in result an effectual,
ousting him from use of a process that he is about to introduce or has
already in operation? Yet these are the superhuman efforts and gifts
which compliance with, and subjection to, any Patent system presupposes
and requires.

Is it nothing in the eyes of this legislator, whose absence from this
House is so generally regretted, that by means of the Patent-Laws there
are thrown loose on men in trade thousands of individuals whose interests
run counter to those of society, men trusted with letters of marque to
prey, not on foreign commerce, but on British? Is it a small matter,
that, having surrendered the principle of discriminating duties leviable
by the State for national purposes, we continue to expose those from
whom this protection is withdrawn to an ever-increasing burden of taxes,
in favour of individuals, levied without State control or any regard to
equality? Does Mr. Mill conceive it is short of recklessness to continue
to stimulate invention by rewards which often turn out ruinous to those
whom they are meant to favour, and which bear not the smallest proportion
to the cleverness, the beneficial results, the cost of elaborating, the
merits or the wants of the inventor, and scarcely to the originality and
legitimacy of the claim of whoever is the applicant? Is he aware that
the advantage reaped by inventors, sometimes very large, is obtained at
so frightful a cost that, as some persons believe, for every pound which
actually reaches him the country loses to the extent of one hundred
pounds? Surely we are asked to obtain our stimulus by a folly (only his
was voluntary, and not habitual) like that of the fabulous sailor who,
for the sake of a tumbler of rum, swallowed the bucketful of salt water
amid which the dangerous stimulant had by accident fallen. I honour the
candour of Mr. Mill, and I hope yet to have his concurrence in my views.
He cannot have reflected on and realised actual facts. One illustration
more, and this of another difficulty which I commend to his attention and
that of any honourable gentlemen who have been carried away along with
him, I give by narrating an incident in my late canvass.

A deputation of the trades of Scotland did the candidates the honour
of submitting to us a very judicious list of questions. One of these
concerned the Patent-Law. They asked, would I support a motion for
reducing the cost of Patents? I answered I would, because I think the
cost too high for the working man; but I added that I would rather see
Patents swept away. One of the deputation properly animadverted on the
hardship this might inflict, and he instanced the case of his brother,
who had invented an improved apparatus for use on board ship. I rejoined
that I accepted the case as sufficient to confirm the conviction that
Patents are on the whole not good, but bad, for working men or any men.
My reasoning was substantially this: In order to reap his reward, the
inventor is required or expected to visit every ship or shipowner at the
port, and endeavour to get the apparatus understood, believed in, and
adopted; and not at Leith only—at every Scotch port, every English port,
and every Irish port. But not to let British shipowners suffer by the
inequality of paying, while rivals use without paying, and at the same
time to promote his own interests, the inventor must take out Patents in
France, Belgium, Holland, and all maritime countries and their colonies.
After he obtains these many Patents he has to sell his apparatus at
all the ports of those countries. The first thing obvious is, that to
do a tithe of that work the inventor must relinquish his own business,
which is the solid beef in the mouth of the dog in the fable, for the
delusive shadow in the water. But never mind that in the meantime: after
the business is relinquished, there remains the insuperable difficulty
of conducting a business so much beyond the power of man as that I have
sketched. He might of course attempt to overcome that by appointing
agents to manufacture abroad or act abroad for him; but where is the
capital to hazard on so great an enterprise? If he were as rich as a
Rothschild, has he the gift of tongues to enable him to correspond in all
languages? And if he had, how can all this work, requiring simultaneity,
be done at once? The end, of course, must be, at the very best—the
Patents, if, indeed, actually taken, are sold for a trifle, and the
persons who secure them, which they only do if valuable, in their turn
sell, for a trifle too; so that the lucky inventor gets but little out of
the tens of thousands or hundreds of thousands of pounds which the public
are made to bear the burden of. _Ex uno disce omnes._

I am unwilling to leave this part of my theme without adverting to a
point which deserves some attention—I mean the tendency the Patent
system has to lower the tone of men of science. In a quotation from Lord
Granville it is seen to be more than insinuated that the sacred claims of
truth are in danger of being compromised by the evidence men of science
are asked and tempted to give in courts of law. But the evil of Patents
begins in the laboratory and the closet; for there is felt the impulse
to conceal anything new and likely to be useful, in order to patent; so
that a conflict is generated between, on the one hand, the theory of the
academic chair which supposes in the very name “university” universalism,
community of knowledge, and on the other, law-created personal interests,
whose nature it is to stifle the man of science’s inherent desire to
spread knowledge and exchange thoughts in order to benefit mankind.

But Mr. Mill presents an alternative. I, for one, have no objection to
see it considered. I have long advocated State rewards; they cannot be
condemned on principle; they are sanctioned by another philosopher. When
I say that I had the honour long ago to receive the following from M.
Chevalier, I am sure of this House’s attention.

     _Extract of a Letter from M. Michel Chevalier to Mr. Macfie._

    “The Patent system, as constituted in all countries where
    it is established, is a monopoly that outrages liberty and
    industry. It has consequences that are disastrous, seeing
    there are cases where it may stop trade for exportation and
    even for home consumption, because it places manufacturers who
    work in a country where Patents are established at a great
    disadvantage in competing with others who live in States,
    such as Switzerland, where Patents are interdicted by law.
    Practice, experience, which is the supreme authority in the
    world, shows daily, in France particularly, that the system is
    a scourge to industry. What might be substituted is a system of
    recompenses, either national or European, as you have proposed,
    to be awarded when practical use has pronounced on the merit
    of each invention, and when the originality shall admit of
    being established. All the friends of industrial and social
    progress ought to unite their efforts to liberate industry from
    the shackles that have been bequeathed from the past. That of
    Patents is one of those which there will be most urgency to get
    rid of.”

The Continental Association for Promoting the Progress of Social Sciences
favours such rewards. Allow me to quote from a Report of M. Tilliere,
Avocât of Brussels, which was adopted by that body:—

    “It is proper to introduce, in respect to industrial
    inventions, the principle of _expropriation_ [or acquisition
    for behoof of the public], with a view to general benefit,
    in order to reconcile the interests of industry and the
    requirements of free trade (_libre échange_) with the interests
    of the inventor.

    “It is desirable, for the satisfaction of the same interests,
    to establish between the different countries by means of
    stipulations with reference to Patents in International
    Treaties, uniformity of system, and, pursuant thereto, to
    provide a depôt where, without the necessity to patent in every
    particular country, specifications might be lodged that shall
    be recognised and published in all.”

The House will observe that in connexion with the principle of
State rewards, or, what is nearly allied to it, of expropriation,
the Association commended another principle, that of international
arrangements as to inventions. On the occasion when the report I quote
from was adopted, another eminent French economist, Professor Wolowski,
spoke as follows:—

    “The free competition which ought to exist between peoples
    requires that Patents should be everywhere ruled by uniform
    laws. Intellectual property must everywhere have limits within
    which there shall be exchange, in order that its products may
    everywhere circulate under the same conditions. International
    legislation with regard to Patents is an object to be
    earnestly pursued. It responds to the demands of free-trade,
    satisfies the needs of liberty of manufacture, and provides a
    compensation for a shortened term of Patent-right by extension
    of area.”

But I come nearer home, and am happy to be able to quote concurrence
in the idea of national rewards on the part of one of our great staple
manufacturers, the sugar refiners. The refiners of Scotland many years
ago petitioned Parliament in the following terms:—

    “That, in the opinion of the petitioners, it is highly
    desirable that your honourable House should devise some means
    whereby discoverers of valuable inventions (to whom alone
    Patents should be granted) might be rewarded by the State, and
    trade be relieved from the restrictive operation and expense of
    Patents altogether.”

Tending in favour of rewards rather than Patents is the following
evidence, given before the Royal Commission by Sir William Armstrong:—

    “How would you give these rewards in the absence of a
    Patent-Law?—I am not prepared to say that. If the country would
    expend in direct rewards a tithe of what is paid for Patent
    licences and expenses, there would be ample provision for the
    purpose. As a matter of opinion, I believe 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.”

A successful inventor writes me:—

    “I should be very glad to see a good round sum set apart by
    Government for the purpose of being awarded to real inventors
    by competent and impartial authority. Then the poor inventor
    might have some chance.”

It is not out of place to inform the House that so far back as the
earliest years of the Patent system a precedent can be adduced. In 1625,
Sir F. Crane received a grant of £2,000 a-year for introducing a tapestry
manufacture. There are several other precedents for similar grants of
public money.

Of course, to reward is not to purchase. We do not buy any man’s
invention or secret. But if he thinks proper, as a good subject, to
reveal that secret, we mean he shall have a substantial mark of favour.
Something like this was, no doubt, the original intention of Patents;
only the favour took the form of monopoly for introducing and working a
manufacture, whereas we prefer to pay, as soon as the value and benefits
of the invention made can be guessed at, such a sum of money as will
be neither, on the one hand, from its magnitude made oppressive to the
people, nor, on the other, from insignificance or paltry conditions
unworthy of a noble mind, whatever the rank, to accept. What is given
will be proportioned to merit or service, and will be, in the fullest
sense, a _honorarium_, a complimentary gift, a mark of national
approbation and gratitude. We all know, though few of us think of it
as a striking proof how Patents have declined in public esteem, that
among us to be a patentee is by no means usually reckoned an honourable
distinction. It is the same in France.

    “The title of patentee is falling into greater disrepute every
    day from the abuse which is made of it.”

This prejudice we must remove, and we can do it. I believe in the
possibility and advisableness of presenting, as a substitute for Patents,
a system of rewards which will reconcile the honour and interests of men
of science and those of practical men, the interests of the master and
those of his workmen, the interests of the many and those of the few.
Such a system, while entirely emancipating commerce and industry, must,
as its condition, deal out its rewards more equitably than the Patent
system does, and with more regard to the just claims of inventors. It
must distribute these without the tedious delays now suffered from. Its
rewards must, in contradistinction to present experience be sure, easily
attainable, and suitable for poor as well as rich. I respectfully submit
the following scheme as one that at least may form a basis for some
system that will obtain general acceptance.


_New System of Rewarding Inventors and Promoting the Publication of
Inventions._

1. The Patent-office to be turned into an office for recording inventions.

2. (Forms for specifications to be furnished gratuitously.)

All specifications to contain a certificate that the inventions promise
to be useful, and are believed to be new, from three persons familiar
with the trade chiefly concerned; one of whom, if the inventor is an
_employé_, to be his employer.

3. These specifications to be registered.

4. Any time after an invention has been tried and proved practically
useful, a fact to be duly certified, the inventor to be allowed to claim
that the invention shall be reported on.

5. A Chief Commissioner for Inventions shall appoint one or more
examiners for this purpose, whose duty it shall be (after, if needful,
first visiting the scene of operations, and conferring with practical
manufacturers) to recommend, if they think it worthy, classification for
a reward, prize, or certificate of merit.

6. Once a year the head of the Invention-office, with the help of
an Adjudicatory Committee, who shall form an Invention Commission,
shall classify the several inventions that have been in the previous
twelve months certified as having been for the first time brought into
beneficial use.

7. In his classification the first rank shall entitle to a

    reward of  £10,000.
    2nd          5,000.
    3rd          1,000.
    4th            500.
    5th            100.
    6th             50.
    7th, Gold Medal, or value in money.
    8th, Silver Medal  ”
    9th, Bronze Medal  ”
    10th, Certificate of Merit.

8. Parliament shall annually place at the disposal of the Invention
Commission £200,000, from which shall be defrayed the expenses of the
staff, and fees to “reporters,” as well as of the several publications
showing the progress of Invention that shall (as now, but on an improved
system) be issued; the balance to be distributed in rewards and prizes,
with an understanding, however, that the amount must be reduced if the
total awards of the Commission shall exceed the money at its disposal.

9. In appointing Commissioners Government shall consult the various
trading interests of the nation in order to select the most acceptable
persons. Inventors collectively might have a veto or the initiative.

10. The prizes may be divided between the originator of the idea of any
invention and the successful introducer into practical use.

11. Where there are rival claimants, the expense of deciding priority in
respect of time and merit to be borne by themselves.

12. The Commission to be at liberty to correspond with foreign nations,
and act in concert with any that shall establish instead of Patents a
system of rewards.

13. In cases in which pre-eminent merit, especially if there has been a
course of costly experiments antecedent, appears to entitle to a reward
greater than the largest in the schedule, Government may propose to
Parliament special augmentations. I do not presume to recommend Royal
decorations and titles, though such honours would be much valued.

A writer on Patents has judiciously said—

    “It would seem very desirable that a system of registration for
    all improvements or ideas which an inventor may think of minor
    importance should be instituted, whereby any one could, at a
    moderate cost to defray expenses, deposit at the Patent-office,
    a description of any new idea, improvement, or invention.”

My scheme is calculated to answer this good end.

Here I may fitly call attention to an interesting and instructive
analysis which Mr. Woodcroft submitted to the Commission. He showed—

    RESULTS of the EXAMINATION of the first hundred inventions, for
    which applications for Patents were made in each of the years
    1855, 1858, and 1862 (abridged).

    1855.

    “Of the first hundred inventions for which applications for
    Patents were made in the year 1855, none are apparently of
    considerable value.

    “Four of the hundred inventions appear to be of some, but not
    of great value, and Patents were granted for all of them.

    “The remaining ninety-six of the hundred inventions seem to be
    of little or no value; and Patents were granted for sixty-six
    of them.”

    1858.

    “Of the first hundred inventions for which applications for
    Patents were made in the year 1858, none are apparently of
    considerable value.

    “Three of the hundred inventions appear to be of some, but not
    of much value.

    “The remaining ninety-seven of the hundred inventions seem
    to be of little or no value; and Patents were granted for
    sixty-two of them.”

    1862.

    “Of the first hundred inventions for which applications for
    Patents were made in the year 1862, one is apparently of
    considerable value.

    “Of the same hundred inventions one appeared to be of some, but
    not of great value.

    “The remaining ninety-eight of the hundred inventions seem to
    be of little or no value. Patents were granted for fifty-nine
    of them.”

I conceive, on the basis of this evidence, that the estimate I am now
about to give represents, relatively, but I will not venture to say
absolutely, a fair view of probable claims. It also affords some guide
for anticipating what, coming from the Exchequer, would be a reasonable
total vote for rewards. Such a sum, or even a larger, Parliament should
willingly grant. It can be proved to be true national economy. The
nation, as individuals, is paying vastly more now. For that burden
Parliament, by not removing Patents, is alone responsible.

      1 at                        £10,000
      3 at 5,000                   15,000
     12 at 1,000                   12,000
     84 at 500                     42,000
    250 at 100                     25,000
    400 at 50                      20,000
        Medals and Certificates
          of Honour and Merit       1,000
    ---                          --------
    750                          £125,000

I am aware that inventors have hitherto drawn such large sums in some
cases (in many or most cases claiming more than they got), that they may
at first hardly be pleased with my proposal. But they should remember
that the sums set down are those derivable from one country alone—one of
the between forty or fifty countries which give Patents now. The revenues
from these other countries, therefore, are to be added. They will also
consider that it is optional whether or not they apply for rewards. Let
them work in secret, if they will and can. But if they resolutely contend
for Patents, let them know the time for abolishing these is at hand; and
abolition may come, if they resist it, without even this substitute.

I have endeavoured to show what I believe to be true—that Parliament,
when it, by the Act 21, Jas., 3, tolerated monopolies for inventions,
did not sanction any system at all like that into which Patents have
developed, or degenerated; that, in defiance of the Act, Patents are
granted so as to create the evils which Parliament expressly sought to
shield the nation from; that recent legislation has aggravated the great
evils that pre-existed; that a Commission has satisfied itself that no
radical or sufficient remedy can be applied; that the arguments of the
defenders of Patent monopolies are untenable; that the most eminent
statesmen, lawyers, engineers, manufacturers, and philosophers plead for
abolition; that the State is at liberty, and has the power, to devise,
if it wills, a better method of dealing with inventions, but that such a
method must be one that leaves manufacturers free, and able to compete
with continental rivals by at once adopting, without any burden of
royalties, every most recent improvement.

To conclude: this great and vital question cannot longer be deferred. It
must be taken up, and that early, by what is expected to be a working
Parliament—a Parliament, too, which for the first time can claim to
represent labour and operative industry. Parliament has legislated
in order to the preservation of salmon, and required the removal of
obstacles on the coasts and in the rivers. Here are far worse obstacles,
affecting not a luxury, but all our necessaries of existence, and every
means of earning a livelihood.

Again: are we not asked to remove light-dues at the sea and tolls on
the land? But what are these unimportant, sparse, and withal equitable
taxes, compared with the close-recurring stoppage and the indefinite
and heavy demands for questionable “service” which Patents constitute?
Yet, again: By arrangement with France we recently abolished the
time-sanctioned petty exemptions of free-men; but here we are continuing
to levy more burdensome private taxes, with exemptions in favour of
foreigners! It is they, indeed, whom the provisions of the Patent-Law
strangely serve. Foreign countries are not so liberal to British subjects
as we are to theirs;—why should they? The number of Patents we grant in a
year to foreigners has increased within a short period tenfold—to about
880, or about twelve times the whole number that Prussia grants to her
own subjects and all the world besides. Well may Sir William Armstrong
remark in his evidence:—

    “Unless you wish to benefit the foreigner, unless that be the
    sole object, as a matter of policy, I do not see what the
    motive to apply the Patent system is.”

The same witness said also:—

    “Is it the fact that Patents are taken out in this country
    for processes which are in operation abroad, but which have
    not been previously introduced into this country?—Certainly.
    A process in actual operation abroad, which has not been
    published in this country, can be made the subject of a Patent.

    “Is it practically the case that processes which are carried on
    abroad are brought into this country by parties who patent them
    here?—Yes.

    “A great number every week?—Yes, constantly.”

Any one who has followed me in the statements I have presented will
see that, while we have been retrograding and making our system of
monopoly wider and worse, the Continent, to which a Patent system was
first introduced just three-quarters of a century ago, is ahead of us in
respect of the prudence with which exclusive privileges are granted and
administered. There, as a rule tolerably general, Patents of importation
are treated less liberally than those granted to inventors. The early
and almost continuous working of the Patent within the kingdom is
required; it lapses when expiry abroad exposes to foreign competition;
expropriation is provided for; there is more scrutiny; medical appliances
and food are excluded, &c.

But this is merely one, and a comparatively unimportant, fault of the
system. There are many faults, as we have seen, much more serious, and
which the Commission deem irremovable. I must, therefore, protest against
injury done by the Patent system to our manufacturers and artisans, and
through them to the nation.

These interests, the interests of us all, cannot with impunity be
subjected longer to the hardships that I have endeavoured to expose.
Times are changed. British and Irish manufacturing pre-eminence
is passing away, not indeed by its actual retrogression, but by a
simultaneous and relatively more rapid progression of rivals on the
Continent, who, in not a few cases, are competing successfully, even in
our home markets, in those articles of commerce and manufacture in which
but lately we, perhaps conceitedly, supposed we had outstripped, without
a chance of being overtaken, all conceivable rivals. The motion, of
which notice has been given, is:—

    “That, in the opinion of this House, the time has arrived when
    the interests of trade and commerce, and the progress of the
    arts and sciences, in this country would be promoted by the
    abolition of Patents for inventions.”

Unless, indeed, Government and the House prefer in the first instance
fresh inquiries through a Committee or Royal Commission, in behalf
of which course it is fair to allege the circumstance that artisans
and operatives were not represented among the witnesses in former
investigations, I submit that this motion ought to be at once adopted.
Such action on our part will commend, and, in a sense, inaugurate,
a principle which the nations of the world, who copied our present
system, will not be slow to appreciate and embrace. Restoration of that
effete system to its earlier moderate dimensions—rectification, however
thorough, of the wrongs it involves towards inventors, will not suffice,
and need not be attempted. The time has come, not for palliatives nor
remedies, but for removal out of the way.

[2] Another illustration naively presented us, even by Mr. Hindmarch,
of the characteristic logic and boldness of the Patent interest, which
may surprise “inventors’ friends” accustomed to rely that our system of
Patents is legal and constitutional, will be found in the Appendix.

[3] What would Adam Smith think of his commentator?




SPEECH OF SIR R. PALMER, K.B., M.P.


Sir ROUNDELL PALMER, in seconding the motion, said he had long felt
convinced that this subject was one of great and growing importance,
which it would be necessary at an early period to bring before the
attention of the House. He rejoiced that it had been undertaken by a
practical man like the honourable member for Leith, who could speak
upon it, not under the influence of any of the partial views which
possibly those who looked at it from a lawyer’s point of view might be
thought by some to entertain, whether they were in favour of or against
Patents. He was glad to find that practical men like his honourable
friend had arrived at conclusions which, in their broad principles,
were substantially the same as those to which many members of the legal
profession, who had had a good deal of opportunity of observing that
matter, had in common with himself, come. He was bound to state that
he thought the time had arrived rather for opening than for concluding
the discussion of that subject; and, therefore, he hoped he should not
be thought to do anything inconsistent with the duty he had undertaken
in seconding his honourable friend’s motion, when he said at once that,
for his own part, he was inclined to go to the root of the matter and
abolish Patents altogether, and not attempt to substitute even such a
system—although it might probably be preferable in many respects to the
present system—of rewards, as his honourable friend had mentioned. Of
course those who derived benefit—whether they were the public or were
private individuals—from the discoveries that might be made if Patents
ceased to exist, might always take into consideration the value they
received, and pay for that benefit, as he believed the Government now
did, although it was not bound by Patents, with respect to improvements
which were useful to the public service. But that, he conceived,
would be a very different thing from an organised system of rewards
at all analogous to the present system of Patents. He might mention,
in passing, a third plan, which had found very able and authoritative
advocates, and which he should also greatly prefer to the present system,
although he thought total abolition would be better than that likewise.
He referred to the plan of putting an end to the notion that every
person who invented anything had a right to a Patent, and recurring to
what, he imagined, was originally the principle intended—namely, the
giving of Patents as a matter of grace and favour in well-selected and
discriminated cases, in the exercise of a discretion by an authority
entrusted with that discretion. But, as he had already said, he confessed
that he himself was not for half measures in that matter. He thought
they had a right, as the motion proposed, to say that at the period of
progress in the history of the arts and of trade in this country at
which they had arrived, they could do much better without these props.
He called them props because he thought they were meant to be so, but
he believed that at present they were nothing but obstructions and
hindrances to trade and the arts. Let him, in the first place, notice
the principle on which the Patent-Law was generally supported. Some
persons imagined that there was a sort of either moral or natural right
in inventors to some such protection as was given by Patents, and the
principle was sometimes expressed in this way—that a man had a right
to the fruit of his brain. Now, he held that invention and discovery
were essentially unlike Copyright. Copyright applied to a creation: a
man wrote a book; he thus brought into existence something which had no
existence in the nature of things before. The rest of the world were
not in the race with him to write that particular book. But in the case
of inventions and discoveries, the facts with which they were concerned
lay in Nature itself, and all mankind who were engaged in pursuits
which gave them an interest in the investigation for practical purposes
of the laws of Nature, had an equal right of access to the knowledge
of those laws and might be equally in the track for obtaining it. All
who were engaged in particular arts and manufactures were actually
upon the track which led to the discovery of the useful application of
those laws; and the knowledge of them was the common stock and property
of all mankind who were equally in pursuit of it. He could not allow
that the man who was first in the race of discovery could claim for
fourteen years, or any other term, an exclusive property in a portion
of the common stock of knowledge which was accessible to all who used
the proper means of discovering it. It could not be said that on any
considerations except those of public advantage and expediency the man
who made the first discovery of a law of nature, or the right mode of
applying it had an exclusive right to apply that discovery for a certain
period. It was said, however, that Patents were useful to the public,
either as stimulating invention, or as insuring the publication of useful
discoveries; and he did not venture to say that the time might not have
been when they answered both of those purposes. Bounties and premiums
might be adapted to a rude state of the arts, and an early stage in the
progress of commerce, but when a nation had reached so high a degree of
progress in all ingenious arts and discoveries and in trade and commerce
as we had, he thought that in this department, as well as in others, the
system of bounties and premiums was much more likely to be mischievous
than useful. But of course one could not demonstrate that point by
resting merely on an abstract proposition, and therefore he would ask the
House to look at two or three things which it seemed to him would put the
matter in a strong practical light. Patents might be divided into those
which might be popularly called meritorious, and those which were not
meritorious. The former class were certainly not one in a hundred of the
total number of Patents, and the latter class were very numerous in every
year. How, then, did the system work as regarded meritorious Patents? He
supposed it would be admitted that among the most meritorious discoveries
of recent times were the steam engine, the electric telegraph, and the
screw propeller for ships. These cases furnished excellent illustrations
of the way in which the Patent system worked. Take the electric
telegraph. According to the evidence on the subject it was not possible,
even for those who best understood the matter, to say who was entitled
to the merit of that invention, so gradual and imperceptible was the
natural growth and progress of knowledge and discovery in reference to
it. But about 400 or 500 Patents had been taken out as marking different
steps in the investigation of that subject. As to the screw propeller, he
had seen a book which represented the collected Patents of one company
as being 90 or 100; and he understood that the case was very much the
same in regard to the steam engine. They were not dealing, in the case
of the most meritorious inventions, with a true discovery by a single
inventor, but with an important branch of practical knowledge at which
many men were working at the same time, and in regard to which each step
attained indicated the next step that was to follow, and many persons
together were on the road. Well, but if they were on the road, the public
would get the benefit of the discovery, and the question was whether, by
enabling each person on the road to stop up the road at his particular
point, they were not really retarding the progress of discovery, and
throwing difficulties in the way of even the most valuable inventions.
There was no one better acquainted with that subject than a friend of
his—a gentleman very eminent both in science and in law. He meant Mr.
Grove; and those members of the legal profession who had to encounter Mr.
Grove in a Patent case knew they had a very difficult task indeed before
them. Now, here were the words of Mr. Grove in reference to that subject:—

    “Always when a discovery has been made when the public has
    reaped the fruits of it, there is no case, and never was a
    case, either in the history of pure science or in the history
    of practical discovery, where it is not alleged, ‘If you look
    at such a book and such another book, you will find that so
    and so has been done, and you will find that it has been
    anticipated.’ That is partly true and partly false. There are
    in all such cases approximate anticipations. The difference
    is, that one man gets at the points, hits the real thing which
    will do it, and the reason why it will; whereas other people,
    although they may have got the thing, have not acquired an
    accurate knowledge which will enable them with certainty to
    produce it.”

That showed the House that the race was often so close that even the
man who had hit the thing might be shut out by somebody else who did
it a trifle better. Nothing could be more true than that. Would the
House allow him to quote the example of a very important Patent, which
he thought would make the matter clear, and indicate how much they
might lose by a system of that description. For a very long time the
distillation of oils from shale and coal had been a matter of the
common knowledge—aye, and of the common practice, of mankind. Early in
the present, or towards the end of the last century, it was practised
by means precisely similar in all points to those which the present
patentees used in this country. But it was not known commercially that
there was such a thing as paraffin, nor was it known commercially how
to distil it. The oil was, indeed, obtained in a rough way, and without
that nicety of discrimination which afterwards resulted from scientific
knowledge of the article itself. All chemists knew that in order to
distil these oils it was necessary to keep the temperature as low as
possible. This was the state of knowledge when a great German chemist
discovered that by operating on wood, tar, and other substances, he could
produce paraffin in small quantities. He also said it could be got from
coals in precisely the same way as was subsequently done by patentees
in this country. But still the German chemist’s experiments were of a
scientific and not of a commercial character. He neither produced it
commercially nor did he hit upon the material from which it could be
commercially produced. The same oil could be produced from shale. Only
the other day there was discovered in Scotland a new kind of mineral, as
to which the scientific world were at variance whether it was coal or
shale. Patents had been already taken out for distilling oil from shale,
and, therefore, if the newly-discovered substance were shale, oil could
not be obtained from it without an infringement of those Patents. But a
Patent was taken out by a gentleman who stated that his object was to
use bituminous coals for the purpose of distilling paraffin. In point
of fact, he hit upon a mineral which was _in ambiguo_, whether it was
coal or shale, but which the authorities ultimately pronounced to be
coal. From this substance the oil could be produced in large quantities.
This gentleman took out his Patent, notwithstanding all the previous
knowledge on the subject, and notwithstanding the fact to which the
learned judge who decided the case in one of its branches referred in the
following terms:—

    “There is ample evidence that the attention of practical
    chemists was previously to the date of Young’s Patent
    laboriously directed to discover the proper material and the
    proper means of producing these articles in sufficiently large
    quantities for common purposes.”

The public literally had in their hands all the necessary elements of
knowledge belonging to the subject, and yet the first person who found
that this particular coal was more bituminous than others excluded the
rest of the world from that manufacture for fourteen years, and of course
amassed a large fortune. Substantially, the test in the courts of law
was whether a man had made money and brought the manufacture into use.
If so, the courts assumed that all previous knowledge was inadequate and
useless, and the man who was successful in the manufacture was regarded
as the discoverer. Was it not quite clear, however, that the public
were so far on the road to this discovery that it would have assuredly
been found out and enjoyed by the public at large if the path had not
been obstructed by the Patent? He would now mention another case. In
the days of our youth mills were much infested with flour flying about
in them. All the millers, both in this country and abroad, wanted to
get rid of this nuisance, and they were possessed of the scientific
principle and the mechanical means by which this desirable object would
be accomplished. They tried experiments with fans which created a draught
to draw the air from the millstones, and everything depended on the
adjustment of a plan to draw just sufficient air and no more. People
were actually on the road, and were doing the thing in an imperfect way,
but in such a way that if they had continued after the granting of the
Patent it would have made them infringers of it. But the man who proposed
to do just enough, and no more, was held to be entitled to a Patent,
whereupon all the millers in England combined to go into litigation in
order to defend themselves. Law-suits of the most enormous and oppressive
magnitude resulted simply from the circumstance that a man had been
allowed to step in and prevent the millers from carrying on their
business in the best way. That they would have found it out was certain.
That was certainly the impression on his mind. He thought it was almost
certain that the discovery being in the direction of their necessity,
and depending on the application of a known principle and of known
mechanical means, was a discovery which could not in the course of nature
have been long delayed. Having said thus much about those Patents which
were meritorious, he would make a few remarks on those which were not. A
great number of Patents were simply frivolous, and related to practical
nothings, but still nothings affecting trades, and standing like lions
in the path to frighten tradespeople, and to expose them to risk,
litigation, and annoyance, if they manufactured those articles which they
ought to be at liberty to manufacture. Then there were other Patents of a
less frivolous nature. They related to some little combination of a kind
which really was so plainly in the open path, that everybody ought to be
at liberty to use it. These, however, furnished the staple of the great
majority of Patents, which, though they did no practical good, operated
to a great extent in hindering subsequent inventors in effecting further
improvements, because these Patents covered almost the whole ground of
everything that could be possibly done. An inventor, unless he paid a
tax to the owners of prior useless Patents, was exposed to litigation,
and even if he were willing to pay the tax, the owners of the prior
useless Patent might refuse to grant him a licence. Thus for the space
of fourteen years these useless Patents might not only do no good to
the public, but might actually stop the road to all further improvement
during that long period. On this subject evidence had been given by
three persons of eminence—Mr. Scott Russell, Sir William Armstrong, and
Mr. Platt. These gentlemen agreed in saying that the useless Patents to
which he had just referred were a practical nuisance, and, if so, it was
obvious from their number that they must be a very great nuisance. Mr.
Scott Russell said:—

    “There are a great many Patents of this kind (practically
    useless, but not appearing so on the face of them) taken out
    for boilers of steam-engines, and boilers of steam-engines
    admit of very enormous variety of shape and proportions,
    without damaging their efficiency. The consequence is, that it
    is hardly possible at this moment for a man having to scheme
    a boiler for a new situation or new circumstances to avoid
    putting his foot in so doing into a trap which somebody has
    previously set for boilers.... Nearly the whole of the Patents
    for the boilers of steam-engines at this moment are of no
    practical value to inventors or to the public; but they are
    continually getting every man who makes a boiler into a scrape
    with some patentee, because almost every conceivable form of
    boiler having been previously patented, and bit of a boiler,
    one cannot make any sort of boiler without infringing some
    man’s patent.”

He said precisely the same thing of screws. Then Mr. Platt, a well-known
machine-maker, said:—

    “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; and
    the difficulty is to get at any knowledge. We may be now
    infringing, and may have been infringing for years, and a
    person may have been watching us all the time, and when he
    thinks that we have made a sufficient number, he may come down
    upon us, and there is no record. If a thing is entirely new,
    there is a record by getting a description; but what I mean
    by a description is this—A very large number of Patents are
    now taken out for what is termed a combination of known things
    for the same purpose, and the descriptions of those Patents
    are generally so bad that it is impossible to tell the parts
    that are actually patented. It is only when you come into
    court, or after making some compromise rather than go to that
    expense, that you ascertain that fact, and very likely they
    themselves in many cases do not know the parts that they have
    actually claimed. It appears to me that, as to that question
    of combination, the granting of Patents for things to do
    precisely the same work in the same machine, with the addition,
    perhaps, of a chain or a couple of bolts, or the form of the
    lever changed, a straight lever made into a compound one; in
    matters of that kind it has become a very serious question as
    to conducting a large business.”

These were examples which it would be very easy indeed to multiply, and
if the objections he had urged against the meritorious Patents were
well founded, what could be said in favour of the large proportion of
Patents which were thus simply obstructing the trade and commerce of the
country? Could any one doubt that in this advanced era of knowledge the
public would gain, on the whole, by the abolition of the Patent-Laws?
Before he left that part of the subject he wished to mention one very
pregnant fact. There was in this country a powerful consumer—he meant the
Government—which, with respect to fire-arms, cannon, ships, and things of
that sort, would be placed in a very singular position indeed if it were
subject to the Patent-Laws. During the time he had the honour of being a
law officer of the Crown, an extensive war was, as the House was aware,
unfortunately raging, and a large number of Patents had come under his
consideration in connexion with so-called improvements in ordnance and
ships. It would be seen from the evidence to which his honourable friend
had referred that the authorities at the War-office and the Admiralty
had patentees swarming like hornets about their ears, and that the
public service seemed, in consequence, likely to be obstructed to a very
inconvenient extent. The question was then tried whether the Crown was
bound by Patents at all, and a decision was obtained to the effect that
it was not. But while the Crown was free it should be remembered that the
people at large were subject to the law as it stood, and if in the case
of the Government the claims of patentees were found to be monstrously
inconvenient, it might not be difficult to believe that they operated
in the same way in the case of the rest of the world also. He should
not enter into the minor details of the improvements which had been
recommended by the Commission, but there was another point to which he
wished briefly to advert before he sat down; he alluded to the question
of the protection of the public against invalid and bad Patents. The
whole argument in favour of Patents proceeded on the supposition that
the public were likely to be really benefited by some discovery which was
worth the price of all the inconvenience and obstruction to which they
were exposed under the present system. But if they said that they gained
nothing by the Patent, and that they only wanted to be set free, what
was the position in which they stood in reference to the cardinal point
of protection against bad Patents? Was there really any protection in
that respect in the duties which were discharged by the law officers of
the Crown? It was impossible for the law officers of the Crown, acting
on the mere statement of the patentee, to know with certainty whether
a so-called discovery was new or not. They could only examine into the
question whether an alleged invention, as described on the face of it,
was or was not satisfactory, but they could in no way protect the public
against having an old thing put forward as a new, or a useless as a
useful invention. Indeed, the attempt by means of any sort of preliminary
investigation to establish the utility or inutility of a Patent must,
in his opinion, necessarily fail so long as the granting of Patents was
a matter of right and not of discretion. And what was the result when a
Patent came to be disputed in a court of law? Everybody was aware that
such litigation had acquired a reputation infamous beyond every other.
In the Paraffin Oil Company’s case, which had been referred to, the time
occupied before Vice-Chancellor Stuart was not less than thirty whole
days. Why was so large an amount of time consumed in those cases? Because
it was necessary to enter into the whole history of the discovery in all
its numerous stages, and to beat up witnesses all over the country, so
that a voluminous mass of scientific evidence had to be produced. That
was the reason why the expense in those cases was so enormous, while the
public were in every point of view placed at an immense disadvantage, for
the presumption was in favour of the patentee, who, if he happened to
have succeeded in an action against another person, was entitled to have
the fact put in evidence in the case, and might subject his opponent to
extra costs. But that was not all. In a case, he believed, of a Patent
for the purifying of gas by the use of metallic oxide of iron, it came
out that there were two kinds of oxide, the hydrous and the anhydrous,
and that the one would effect the object while the other would not;
but, because the terms were general, although everybody who tried the
experiment might arrive at the result desired, the Patent was held to be
bad, and another person who took out a Patent for the hydrate had his
Patent made good. Lord Westbury, who was as well acquainted with the
subject as anybody who had in recent times occupied the woolsack, said in
1862, in speaking on that point:—

    “To vitiate a Patent by prior publication, whether in a prior
    specification or in a published book, &c., the antecedent
    statement must be such that a person of ordinary knowledge
    of the subject would at once perceive, understand, and be
    able practically to apply the discovery without the necessity
    of making further experiments. If anything remains to be
    ascertained which is necessary for the useful application of
    the discovery, that affords sufficient room for another valid
    Patent.”

It would be seen, he thought, from what he had stated, that the
public were placed at a great disadvantage in the contest. In dealing
with Patent cases in a court of law there was generally a vast array
of witnesses to be examined, consisting of mechanics, chemists, and
scientific men of all sorts on one side and the other. Then there were
the jury, who knew nothing of the subject, and the judge, who might be
placed in a worse position, because he might imagine he understood all
about it when he did not. He did not, of course, mean to say that the
judge did not sometimes understand it, but it might very easily happen
that an ingenious professional witness might so argue the case under the
form of giving evidence as to lead the judge to think that he really knew
all about it when such was not in reality the fact. Then the bias being
in favour of the patentee, the result of such trials almost invariably
was, that if the matter happened to be of any practical importance, the
public were defeated, after having endeavoured to protect themselves at
an enormous expense. He would not enter into minute details, but probably
he had said enough to show that a great practical evil arose out of
Patent-Laws, and that for this evil there was little or no corresponding
benefit. He did not think that we should lose really valuable discoveries
if the Patent-Laws were abolished. There might be some rare instances in
which particular circumstances might give to particular inventors motives
for suppressing and facilities for suppressing discoveries which were not
patented. But, assuming that to be possible in some cases, it operated
even now, for it was well known that Patents were bought up for the
purpose of being suppressed, and it was understood also that inventors
were the persons who derived the least advantage from their inventions.
His conclusion, therefore, upon the whole matter was that the time had at
last arrived—even if it had not arrived some time ago—at which the public
interest would be promoted by the entire abolition of the present system
of monopoly.

[This speech and the succeeding one have been obligingly revised for the
press by the speakers.]




SPEECH OF THE RIGHT HON. LORD STANLEY, M.P.


Lord Stanley said that, agreeing substantially in the arguments of the
honourable and learned gentleman who had just sat down, he should not
have troubled the House if it had not been for the circumstance that
he was chairman of the Royal Commission which sat upon the question of
the administration of the Patent-Law some years ago, and he thought,
therefore, that it might be expedient he should state what was the result
which that inquiry produced upon his mind. There was no doubt that,
quite apart from the principle of the law, the details of the law, as
at present administered, were not satisfactory; and, if the law were to
continue in any form, he believed that in the report of that Commission
various suggestions would be found by which the most prominent objections
to its present working might be removed, and fair trial might be given
to the principle itself. But it was impossible to carry on an inquiry
of that kind, even limited as it was—it was impossible, at least, for
him, and he believed he was not the only one in that position—without
finding a doubt raised in one’s mind whether any Patent-Law could be
framed in such a manner as not, upon the whole, upon the balance of good
and evil, to do more harm than good. That conclusion, he was bound to
say, was totally opposed to his earliest impressions upon the subject.
He resisted it for some time, but the more he had to look into this
matter—the more he had to consider how great were the practical abuses
and inconveniences of the existing system, and how difficult it would
be to remedy them—the more clearly it appeared to him that the evil
was really irremediable, being inherent in the principle itself. On
this subject of Patents there had been a certain amount of prejudice,
particularly in the minds of literary men, who appeared to think that
Copyright was only a modification of the same principle, and that if
Patents were abolished Copyright would follow. The analogy seemed a
plausible one, but he thought that, on being looked into, it would not
hold water. The difference was simply this: He did not rest it on any
abstract ground as to the distinction between invention and discovery,
but on the obvious fact that no two men ever did or ever would write,
independently of one another, exactly the same book; each book, be it
good or bad, would stand alone; whereas it might happen, and often did
happen, that two or three men, quite independently of one another,
would hit upon the same invention. That alone established a distinction
between the two cases. He was not disposed to place the objection which
he entertained to the system of Patents upon the ground of any abstract
impropriety in giving a man a property in ideas. To a certain extent you
did in the case of Copyright recognise a certain qualified and temporary
property in ideas; and if it could be shown that a man’s ideas had been
of a nature to add greatly to the wealth of the country, he did not
think that any abstract considerations of the kind mentioned by the
honourable member (Mr. Macfie) would induce anybody to grudge to such
a man any reward to which he might fairly be entitled, provided that
that reward could be given in a manner free from objection on other
grounds. The objections which he felt to the principle of Patents were
threefold. In the first place, you could hardly ever secure the reward
going to the right man. In the next place, you could not establish any
proportion between the public service rendered and the value of the
reward received, nominally, for that service. And, thirdly, you could
not by any arrangement that he had been able to discover, prevent very
great inconvenience and injury being inflicted upon third parties. With
regard to the first point—the difficulty of securing that the reward
should go to the right man—it must be remembered that a Patent did
not, as some people supposed, bring to the holder of it an immediate
pecuniary recompense. All that it did was to give him a right to prevent
any one else from using his invention without paying for it, and if that
Patent were infringed he was entitled to take legal proceedings. But
everybody knew that law was costly, and that Patent suits were the most
costly of all. It was notorious that Patents were continually infringed
by persons who well knew they were infringing them, but relied upon
the inability of the inventor to incur the expense of defending his
property. If a poor inventor took out a Patent, and the Patent promised
to be productive, in nine cases out of ten he was obliged to sell it to
some one who could command capital enough to defend it in a court of
law. If the Patent remained in his own hands, it was quite sure to be
infringed, and then he would probably be crushed by the law expenses. He
did not know whether it would be possible to obtain accurate information
upon this point, but he really did not think he should be exaggerating
if he said that in nine cases out of ten—probably in 99 out of 100—the
reward was obtained, not by inventors or their representatives, but by
persons who had bought the Patent on speculation and at a very low rate.
He said at a low rate, because there was a great deal of uncertainty
about such property, and until a Patent was tested by actual working you
could hardly say whether it was valuable or not. What was the practical
effect of this? Why, that a few great firms in any branch of business,
buying up at a low rate any new Patent applicable to their business, and
prepared to fight for it, could so hamper other competitors as to secure
a practical monopoly. The reward, therefore, did not, as a rule, go to
the men who, on the ground of the public service rendered by them, were
intended to receive it. As to the second point—that the reward might be
great and the public service very small—that had been dwelt upon by the
honourable and learned gentleman opposite, and little need be added to
what had been said by him. The merit and novelty of the invention might
in many cases be almost nothing, and, yet however obvious it might be,
however much it might lie, so to speak, in the high road of discovery, if
it applied to any article of general use, the pecuniary reward derived
from it might be absolutely out of proportion to the novelty or value of
the invention. It would be easy to give instances, but he apprehended
that the fact was familiar to every one who had studied this question.
Then, with regard to the injury to third parties, it commonly happened
that half-a-dozen men who were competing in the same line of business
were upon the track of the same discovery. Each of these half-a-dozen
men would probably have hit upon the invention which was wanted,
independently and without communication with the other. But the first who
hit upon it, and who took out a Patent for it, was thereby entitled to
exclude the general public and competitors from the use of that which,
if he had never existed, they would probably have hit upon within a few
weeks. A and B reached the same point, one a week or a fortnight before
the other, and A became entitled, by the mere accident of such priority,
to exclude B from a process which, a little later on, B would have hit
upon for himself. Another case was that where the successful working of
a process depended not upon one, but upon several successive inventions.
The first two or three, not leading to any immediate practical result,
might not have been thought worth patenting. The last link in the chain
gave to the whole their commercial value, and it was the person who
took out the Patent for the last invention who got the benefit of the
whole, yet it might not be the most important invention in the series.
He would say nothing of the inconvenience and prejudice to manufacturers
in general. That was obvious enough, and the question was whether there
was any counterbalancing advantage. These were the considerations which
led him to the conclusion that it was impossible to defend our system
of Patent-Law as it stood. At the same time, he did not at all disguise
from the House that there were certain inconveniences and difficulties
in the way of abolishing Patents altogether. You had to guard, in the
first place, against the danger of encouraging inventors to keep their
discoveries entirely to themselves. In some branches of business, no
doubt, that would be possible, and the obvious effect might be to shut
out the public, for a much longer period than would be the case if
Patents were allowed, from the use of some valuable invention. Then it
had been suggested by the honourable member who raised this debate that
there might be a system of State rewards for the encouragement of really
meritorious inventions. Without putting an absolute negative on that
plan, he must observe that it was one which could only be established at
great cost, and it would be a very difficult thing to apportion among
inventors the rewards to which they might think themselves entitled. The
distribution of the rewards would give rise to endless complaints, and
would occasion, however unjustly, suspicions of jobbing and partiality.
With regard to the suggestion thrown out by the honourable and learned
gentleman, of the possibility of granting Patents, not as a right, but as
matters of discretion only in certain limited and important cases, the
Select Committee considered that point, and he was bound to say that the
difficulty of carrying it out appeared to his mind almost insuperable.
There would be found great difficulty in drawing the line, and it would
not be an easy matter for any one to exercise so large a discretionary
power as to decide to what inventions Patents should or not be granted.
He did not know what tribunal would be fit to exercise so great an
authority, and he was sure that none would be able to exercise it in a
manner to give satisfaction to the public. The most fit persons to decide
in such a case would be the first to see the difficulty of deciding on
any intelligible principle, and would on that ground decline to undertake
the duty. Under these circumstances it appeared that they were landed in
a position of great embarrassment. He was convinced that the Patent-Laws
did more harm than good, and if called on to say aye or no as to their
continuance, he should certainly give his vote against them; but, as this
was a matter which required particularly careful handling, he should be
content to leave the question in the hands of the Government, and he
thought it was well worth consideration whether they could not, starting
on the ground that the abolition of the Patent-Laws, wholly or partially,
was desirable, institute some inquiry with the view of discovering, if
possible, the best substitute for them in certain cases.




PATENT RIGHT.

_Paper by Mr. J. Stirling, Presented to the Glasgow Chamber of Commerce,
and published by permission._


First: Patent-right cannot be defended on the ground of justice.

The object of a Patent-Law is to establish a “property in ideas:”
but this involves the double fallacy that thought can and should be
appropriated. The end of all law is to ensure the universal freedom of
human action. Hence the law of property secures to every man the product
of his own labour. It gives to each an exclusive right to the material
embodiment of his productive energy, to be possessed or alienated by him
at will. But in so doing it leaves unrestricted the productive energy of
every other man. The freedom of one (as represented by his property) is
thus consistent with the freedom of all.

But thought cannot be appropriated. In thought there is no material
product to be made the object of a proprietary right. There is no
“thing” to be possessed or alienated. The law can only, therefore, give
the exclusive use of an idea to one person by injuriously limiting the
intellectual activity of all others. A Patent-right, therefore, is less a
“property in ideas” than a monopoly of thought.

Again, a true right of property is universal in its application; it
extends to the products of all industry, however humble. But it is
instinctively felt, that a proprietary right applied to every individual
idea would be essentially absurd. Patent-Law, therefore, is essentially
partial in its application. It picks out certain favourite ideas, and
confers on them an anomalous and oppressive privilege. There seems no
good reason why the ideas of inventors should be especially favoured.
An invention is a means to a special end, and should be recompensed by
him who has the end in view. If any ideas deserve a public recompense,
it is those general ideas whose application is of universal utility. But
Patent-Law ignores the discoverer of general ideas, and while conferring
rewards, at the expense of the community, on empty schemers and puffing
tradesmen, it passes over the services of a Newton or an Adam Smith. The
law of Copyright, indeed, gives to the philosopher a right of property in
his published and material works, but it leaves (most justly) his ideas
to be used and elaborated by whoso can and will.

Again, Patent-Law is founded on a conventional, not a natural, right.
It is not, like the ordinary law of property, based on an universal
intuition of the human conscience, but it is one of those laws by
which unwise legislators have striven so long and so vainly to give
an artificial stimulus to human industry. Hence the arbitrary nature
of its enactments. The ordinary right of property is unlimited in its
duration—passing from generation to generation. But common sense revolts,
instinctively, against a perpetual monopoly of thought. A Patent-Law,
therefore, can never be more than a weak compromise with principle—the
legislator undertaking to secure to the patentee his ideal property
during the biblical term of seven or fourteen years. Now, if the inventor
have a right at all, he has a right to more than this. To cut down a real
and acknowledged right of property to seven, or even fourteen, years were
a grievous wrong. Patent-right goes too far, or not far enough. Either a
Patent is no right at all, or it is a right for all time. If ill-founded,
it is a robbery of the public; if well-founded, of the patentee.

Mere priority affords no good ground for the exclusive right to an
invention. The free exercise of thought is the common right of all.
Wherefore if A excogitate a principle to-day, and B, by independent
thought, excogitate the same principle to-morrow, both have an equal
right to benefit by the discovery; and A has no natural right to debar
B from the legitimate fruit of his intellectual effort. It may be even
that A had no real priority of thought, but was only more knowing, more
greedy, or was simply nearer to a patent office, and, though latest
in arriving at the idea, was the first to secure a legal monopoly of
its use. To found a right on such a race for priority is evidently
irrational. The simultaneousness of discoveries and inventions by
different minds, is a well-established fact in the history of science.
Certain facts and reasonings, all tending in a given direction, are
before the world. These act simultaneously on various minds, and produce
in each the same development of thought. Now, with what justice do we
pick out one of these many thinkers and give him a monopoly of the common
thought? Nor is the injustice confined to the original idea, of which
we grant a monopoly. By tying up one idea, we stop the whole course of
thought in a given direction, and thus interfere generally, and to an
indefinite extent, with the intellectual activity of other men.

The inventor benefits by the ideas of the community, and has, therefore,
no right to a special privilege for his idea. The universal thought of
mankind is a common good; all benefit by it freely, and all are bound
freely to contribute to it. Every thinker owes an incalculable debt to
society. The inventor has the benefit of all foregone human thought, of
all existing civilization. He has the unbought advantage of all laws,
all language, all philosophy. He has the free use of all the methods and
appliances, spiritual and material, which have been painfully elaborated
by the thinkers and workers of all time. Why, then, should he alone have
an exclusive privilege, in respect of the infinitesimal addition which he
may make to the work of ages?

Secondly: Patent-right cannot be justified on the lower ground of
expediency. The object of a Patent-Law, in the supposed interest of
the community, is to stimulate invention. But invention needs no
artificial stimulus. Nature has amply provided all needful and wholesome
encouragement, in the additional profit afforded by improved methods of
production. In the natural course of business, every producer is spurred
on by his material interests to invent for himself or to encourage
the inventions of others. The whole history of industrial progress is
an unceasing striving after improvement, with a view to profit. The
few thousand patented inventions are as nothing compared with the
innumerable improvements produced daily and hourly in the ordinary
course of business, with the vulgar view of gain. The best stimulus
to invention, therefore, will be found in the natural competition
of producers; but Patent-Law destroys this competition by an unjust
monopoly, and thus tends indirectly to weaken the natural impulse to
improvement.

Invention may be even over-stimulated. In all her arrangements, Nature
provides for a due equilibrium of powers and tendencies. Thus the various
faculties and temperaments of man—the sanguine and the cautious, the
speculative and the practical—are nicely balanced. The result, when
things are left to themselves, is a happy combination of ingenuity
and caution, and, as a consequence, a continuous but prudent course
of improvement. But if, by conventional rewards, we give a factitious
impulse to the inventive faculty, we destroy the natural equilibrium of
capacities, and foster a scheming, fanciful turn of mind, at the expense
of thoroughness and a patient working out of sound ideas. This result
has actually occurred in the United States, where the factitious value
attached to invention has tended to produce an almost total sacrifice of
solid workmanship to a flimsy ingenuity.

Patent-Law does not even attain its proposed end of quickening the
progress of real improvement; on the contrary, it is found in practice
seriously to hinder it, the monopoly granted to one inventor necessarily
obstructing the progress of every other. Hence, an eminent inventor
has lately said: “The advance of practical science is now grievously
obstructed by those very laws which were intended to encourage its
progress.” That Patents seriously obstruct the natural development of
ideas, is best seen by the sudden advance which usually follows the
expiry of important Patent-rights. The natural course of improvement,
dammed back by artificial obstruction during the continuance of the
Patent, is set free on its conclusion, and a new impulse is given to the
development of ideas and their practical application.

But the public is not the only sufferer by Patent-right. Without doubt
the heaviest evil falls on the patentee. The inventor is led to give
an excessive development to his talent, and is seduced into reliance
on a law that can give him no substantial protection. The difficulty
of defining original inventions is a practical bar to a satisfactory
Patent-Law. The whole history of Patents is a long-continued story of
litigation and disappointment; and the more admirable the invention, the
greater is the certainty of difficulty and loss. It must be a worthless
invention that the patentee is left to enjoy in peace. Whenever a Patent
is worth pirating, the inventor may depend on being involved in a maze
of litigation that disturbs his peace and ruins his fortunes. And the
more the Patent privilege is extended, the worse the evil becomes; the
intricacy and the multiplicity of details baffling every attempt to
define the rights of competing inventors.

At this moment the heaviest complaints against Patents come from our
great inventors. They repudiate the proffered privilege as “injurious
to inventors,” and complain of being “borne down by an excess of
protection.” As is natural, they who are most occupied with the
advancement of invention, feel most acutely the grievous obstructiveness
of the Patent-Law. Not enough that they have to battle with natural
difficulties; at every step they meet obstructions which a well-meaning
but perverse law places in their way. Nor do these obstructive privileges
confer any real advantage on the empty schemers whose monopoly they
establish: they merely give them the vexatious power of hindering the
progress of better men. The mere “pen-and-ink inventor” has neither
the energy, nor the perseverance, nor the practical ability to mature
his crude “idea;” but to this man the law awards the dog-in-the-manger
privilege of effectually obstructing the natural progress of practical
improvement.

These practical evils the advocates of Patent-Law do not deny; but
they attribute them to the defective execution of the law, not to its
vicious principle. Hence a never-ending cry, as in the case of all bad
laws, for more legislation, for more stringent regulation, for stricter
investigation, and more thorough registration of Patents. But no
tinkering at details can avail. The whole system is radically unsound;
and the only effectual remedy is to lay the axe to the root.

A sentimental plea in favour of Patent-right has been set up by some, on
the ground that the inventor—the man of thought, as he is called—must
be saved from the toils of the capitalist, ever ready to prey on his
superior intellect. This silly sentimentalism could only originate in an
utter ignorance of the relations which naturally subsist between capital
and talent. The capitalist is the natural ally of the inventor, whom
it is his interest to employ and encourage. It is a chief part of the
business of every producer to search out every one who can help him to
improved methods of production; and the remuneration which, in one shape
or another, it is the interest of the capitalist to offer to the really
clever inventor, will always form a surer and more substantial reward
than the delusive privilege of a legal monopoly. As to the complaints
we hear of neglected talent, we may safely conclude that they arise
more from the exaggerated pretensions of conceited schemers, than from
any obtuseness to their own interests on the part of practical men of
business, who refuse to profit by their inventions.

On the whole, Patent-Law seems a blunder, founded on the antiquated
notion of giving State encouragement to certain favoured modes of human
activity. It is no part of the duty of the State to stimulate or reward
invention; the true function of Government is to protect, not to direct,
the exercise of human energy. By securing perfect freedom to each
individual, we shall best provide for the progress of the community; nor
can any law be conceived more detrimental to the common weal than one
which lays restrictions on perfect freedom of thought.




ARE INVENTIONS PROPERTY?

BY M. T. N. BENARD, EDITOR OF THE “JOURNAL DES ECONOMISTES,” JULY, 1868.

(_Translated and Reprinted by his obliging consent._)


In the number of the _Journal des Economistes_ for last December there
appeared a very conscientious paper on “Property in Inventions,” by our
learned colleague, M. le Hardy de Beaulieu. We would have preferred that
some master of the science had published an answer to this article, which
it seems to us is based on a wrong principle, and that he had given to
the readers of this journal the opposite view of those ideas so ably set
forth by the honourable Professor of Political Economy at the Belgian
“Musée de l’Industrie.”

We believe that this question has acquired sufficient importance and
reality to merit being fully argued and cleared up; and, no other having
taken up the pen in answer, we shall endeavour to set forth the principle
which alone appears to us true and admittable.

We throw out these ideas for discussion, hoping that the subject will be
taken up by one of our masters in the science, and that this great debate
will be carried out in a manner suitable to the imperishable doctrines of
justice and equity, which form the basis of political economy.


I.

“The man who first made a hut,” says M. le Hardy de Beaulieu, “a piece
of furniture, a cloak, or some necessary of life, would no doubt have
thereby excited the envy of his neighbours, and he would frequently
have been deprived of these objects by violence or by strategy, before
it would be generally allowed that they ought to belong to him who made
them, and that it was at once the duty and the interest of the community
to guarantee him their possession against every attack.”

We acknowledge that the man who first constructed a hut was perfectly
right in making good his claim against those who would have deprived
him of it, and that he was justified in vindicating his claim by force.
He had employed his time and strength in building this hut; it was
undoubtedly his, and his neighbours acted up to their natural right and
in their own interests in helping him to oppose the intruder. But there
ended both the right of the individual and that of the community.

If this first man, not content with claiming his hut, had pretended
that the idea of building it belonged exclusively to him, and that
consequently no other human being had a right to build a similar one, the
neighbours would have revolted against so monstrous a pretension, and
would never have allowed so mischievous an extension of the right which
he had in the produce of his labour.

Nevertheless, this man had exercised imagination and combination; he
had invented the shape, the size, and the arrangement of the whole
structure; he was the first to conceive—probably after many efforts
of mind and thought, after long study, after observations made on the
nests of birds and the hut of the beaver—that pile of branches, of dead
wood, of leaves and of stones, of which its shelter is formed. He was
an inventor of the first class. How is it, then, that the sentiment of
justice which prompted him to claim his property did not prompt him at
the same time to claim exclusive possession in the idea, the result of a
long train of reflection? How is it that the same sentiment of justice
which induced his neighbours, the community, to lend him armed force
to preserve for him the possession of his hut, did not go so far as to
grant him a property in his idea? No one dreamed of asking him for the
permission to imitate what he had made; no one thought he was committing
a crime, or doing him a wrong, in making a copy of his hut.

Property can be a right only when its principles tend to the general
good and are useful in advancing the interests of the human race. And
if, in our day, imitation of an invention is not generally considered as
guilty an act as robbery of tangible property, it is because every one
understands the difference between an idea and a thing made or done.

The inventor of a particular weapon, or certain furnishings, or tools,
had all possible rights in the constructing and possession of these
weapons, furnishings, or tools; but these rights could not be extended
to the hindering of his neighbours from making tools, furnishings, or
weapons, in every way similar. If the community had admitted an exclusive
right in these inventions, it would have died in its germ, civilization
would have been a dead letter, and man would have been unable to fulfil
his destiny.

Thus far, then, there was not, nor could be in principle, any question
of exclusive right of invention. This right was only thought of when
all notions of social right had been obscured by laws which, like that
of Henry II., declared that the right of labour belonged to the Crown,
and when there had grown up the idea of licensing labour and granting
exclusive privileges for its exercise. The institution of the pretended
property in inventions was a retaliation against the suppression of the
abusive right of masterships and corporations.


II.

Doubtless invention, as M. le Hardy de Beaulieu remarks, consists in
the discovery of a new scientific principle; but we cannot admit, with
the learned Professor, that the new application of a principle already
known, that the discovery of a natural agent hitherto unknown, or of new
properties or other modes of action of natural agents, or of materials
previously discovered, are inventions.

It is probable that coal was known long before any one thought of putting
it in a stove to be used as fuel. It is certain that stone was known long
before any one thought of employing it in the construction of walls.

To pretend that the discovery of the combustible quality of coal, or
of the use to which stone might be put, gave a right to the discoverer
to exact from his neighbours the payment of a royalty before employing
this fuel, or this material for construction, is also to grant that he
who, centuries before, had thought of burning wood to warm himself, or
of seeking the shelter of a cave, ought also to be recompensed for the
trouble he had in discovering, appropriating, and working out either this
source of heat or this means of shelter.

Invention, we acknowledge, consists in the discovery of a new scientific
principle; it can often place, as M. le Hardy de Beaulieu says, new
gratuitous forces at the disposal of the community; but does it follow
that the inventor has an exclusive right in the property of this
discovery? We think not. The inventor of the compass, whoever he was, has
rendered an immense service to the community; but could his invention be
claimed as private property? Does it not, on the contrary, enter with
perfect justice into the public domain?

Napier, the discoverer of logarithms, has rendered the most signal
service to calculators and navigators; but can his invention, the
knowledge of which may, either orally or by the printing-press, be
extended indefinitely—which any one may use privately, in the quiet of
the study—be put upon the same footing as landed property, which a single
man may cultivate—as house property, which may belong to one or several,
and which cannot be seized upon without its being observed, and to the
great scandal of all? Evidently not.

And if the law has never tried to appropriate inventions of this class,
it is because there must be something tangible, limited, and final,
giving the power to regulate its employment or possession.

It is not correct to say, besides, that the inventor does not deprive
the community of any portion of the common property which it possessed
before the invention. Before the invention the thing discovered existed
in embryo—in nature. This germ was multiple; it existed as frequently as
there were men; and the inventor pretends, by the property in it which he
claims, to deny it to all others and to hinder its germination.

The right of the inventor is limited to that of working out his idea; it
is identical with that of a man who has discovered and cleared a field;
but it is not, like his, exclusive. He who invents and he who clears can
possess their property as long as they like and as they like; but there
is this difference between the field and the invention: the first can be
cultivated only by one without doing an injury to the proprietor, while
the invention may be used by several without hindering, diminishing, or
suppressing the working of it by the inventor.

I have cleared a field, and cultivate it; if one of my neighbours desires
also to cultivate the same field, he hinders me from exercising my
right—he interferes with my working—he dispossesses me.

I have discovered the combustible nature of coal: in what way does my
neighbour, who cooks his food on a coal fire, hinder me from exercising
my right, or interfere with the working of my faculties? of what does he
dispossess me?


III.

We have not, as we think, to take into consideration more or less the
difficulties of inventors; we have not to inquire if every invention
requires a more than ordinary degree of intelligence, special knowledge,
great perseverance, &c. There is a multitude of occupations in life
which require all these qualities, but no one has ever pretended that on
account of these qualities, probable sources of success for them, they
had a right to any favours, immunities, or privileges.

The inventor of a useful discovery has quite as much, or more, chance of
making a fortune as the manufacturer who confines himself to the beaten
tracks, and only employs the known methods; this last has had quite as
much risk of being ruined as any searcher after discovery. We believe
that they are on an equality as to position; for if the inventor may be
ruined in not finding what he seeks, the manufacturer may see all his
looms or his machines rendered useless, all his outlets closed, by the
introduction of a cheaper means of production. Why make a golden bridge
for him who enters the arena with arms more subtle and more finely
tempered than those of his adversary?

Notice that the manufacturer also renders a service to the community—no
doubt in seeking his own profit; but is it not so with the inventor? Why
then demand a reward for the one which is not asked for the other?

The manufacturer who, in using the old looms, manages his factory so as
to reduce his prices by 10 or 20 per cent., and who in consequence can
furnish stockings (supposing him to be a stocking manufacturer) to a
number of those who were not rich enough to buy them at the old prices,
undoubtedly does a service to the community equal to that which it would
receive from the invention of a machine which would make the stockings 10
or 20 per cent. cheaper.

The farmer who by superior ploughing, more skilful manuring, or more
careful weeding, increases the yield from two to three quarters per
acre—does not he also render a signal service to the community?

The sailor, who finds the means of shortening voyages by utilising
certain currents or winds, in modifying the spread of his sails, &c.—does
not he increase the gratuitous natural forces placed at the disposal of
the community?

Why, then, if there is question of rewarding this class of services,
should they not ask for privileges, favours, and exclusive rights? Why
not go so far as forbid any one to arrange his factory on the plan of the
manufacturers of whom we have been speaking? Why not forbid any farmer
to weed, plough, or manure, like his neighbour; or any sailor to follow
the track of the first, without paying to those who gave the example a
previous and perpetual royalty?


IV.

“The property of an invention having required for its creation the same
labour as that of the soil, and this work offering less chance of success
and results of probable less duration, it is as legitimate at least as
landed property,” says M. le Hardy de Beaulieu; “and there is no argument
against it which may not be applied with equal force to the individual
and permanent occupation of the soil.”

The soil, to render all the productions that the community has a right
to expect from it, ought to become and remain a personal individual
property. Invention, on the other hand, cannot give all the results that
society can draw from it, unless it be public property.

Herein lies the immense and irreconcilable difference between property
in land and that of invention. Besides, land cannot become unfertile,
unproductive, or lose all its value as property, except by some
convulsion of nature which would deeply unsettle it. An invention, on the
contrary, may become quite valueless in ten years, one year, a fortnight
even, after being discovered, and that by the superiority of a subsequent
invention.

What becomes, then, of the property of this invention? What is its worth?
Has the inventor a right to damages?

If you construct near my field a factory from which escape noxious
vapours, hurtful to vegetation, and if I can show that you have
deteriorated or destroyed my crops, you, according to the laws of every
civilised nation, owe me damages; would you claim damages of the
inventor, whose discovery had rendered that of one of his predecessors
partially or completely unproductive? If property in invention is equal
to property in the soil, damages are incontestably due. We do not think
that a single advocate for this class of property has, however, dared to
carry his logic thus far.

The proprietor of a field may leave it uncultivated, the proprietor of a
house may leave it shut up as long as he likes; no law obliges to put in
a tenant, or to open it for lodgers. The laws of all countries contain,
with slight modifications, the following clause, quoted from Art. 32 of
the Law of 1844:—“Will be deprived of all his rights ... the patentee
who shall not have commenced the working of his discovery or invention
in France within two years, dating from the day of the signature of the
Patent, or who shall have ceased working it during two consecutive years,
unless that, in one or other case, he can satisfactorily explain the
causes of his inaction.”

It would be very easy for us to cite other differences in the nature
of these two classes of property; we shall only refer to one more,
which points out how solid is the property in land, and how uncertain
and ephemeral the so-called property of invention. Land, considered as
property, increases in value from day to day; there is no invention whose
value does not diminish daily.

M. le Hardy de Beaulieu further adds, that “the inventor, in taking
exclusive possession of his idea, harms no one, since he leaves all
which previously existed in the same condition in which he found it,
without in any way lessening the social capital on which he drew.” We
should require, however, to come to an understanding as to what may be
called the social capital; for if the exclusive property of invention had
existed from the germination of the idea which led to the construction
of the first hut to the making of the earliest weapons, tools, and
furniture, it is difficult to know where we should find it. By putting
property in invention on the same footing as property in the soil, all
that man uses or consumes would belong to the descendants of the first
inventors, and every one would require to pay a sort of rent for its
use. The inventor of the wheelbarrow would have to pay a royalty to the
inventor of wheels, and the maker of the plainest pump would pay an
annual rent to the inventor of the lever or piston; there would not,
there could not, be any social capital.

But it is wrong to say that the exclusive possession of an idea hurts no
one, because it leaves what previously existed in the same condition.
I, or my neighbour, might put together ideas to form the basis of an
invention; this faculty of combination belongs to each of us; with
exclusive possession it belongs only to one. It cannot be said, then,
that no one is hurt, and that everything remains in the same position.

After having said that the property of invention is in every respect
similar to property in the soil, M. le Hardy de Beaulieu places,
nevertheless, boundaries to the extent and duration of the first. He
says: “It is not meant precisely that property in an invention ought
to extend over the globe, nor that its duration should have no limit in
time; all property, in fact, is bounded by the cost of preservation,
maintenance, and working, which it requires, already, long before the
limit of space or time when the produce of the property no longer covers
the expense, the proprietor does not require to defend it against
seizure, and from that time it becomes public property.”

It follows that property of invention is not identical with property in
land or other material objects. A diamond which belongs to me in any
corner of the globe, the cotton stuffs which I have sent to Bombay or
Saïgor, are still my property until I have voluntarily ceded them. My
descendants, or those of some rightful owner, will cultivate in four or
five hundred years or more the field which I may now possess. There is no
limit of time nor of space for real property; it remains for ever.


V.

The whole history of humanity protests against this assertion of M.
le Hardy de Beaulieu, that inventions “being realisable only on the
condition of a just remuneration, sufficient for the exceptional work
which they require, and of a compensation in proportion to the risks they
cause, property in them, which alone can assure this remuneration and
this compensation, is necessary.” Let us remark, first, that by a just
and sufficient remuneration he probably means a special, exceptional, and
exclusive one.

We will now ask it to be observed that man’s most indispensable and
useful tools were invented, and were everywhere in daily use, many years
or centuries before there was any question of property of invention. We
shall only cite the hammer, the file, the saw, the screw, the pincers,
the plough, spades, needles, &c.

Did any of the inventors of these tools take out a Patent? Did he who
first put a shoe on a horse claim a property in the idea?

All the great inventions, with the exception of a few of the most modern,
and for which it was not possible to take a Patent, date from the
earliest times. Who, then, invented the art of smelting the ores of iron,
copper, lead, and tin? of making malleable iron and steel? When did man
first invent the manufacture of glass, of pottery, porcelain, paper, ink,
boats, and carriages?

Railways existed in a rudimentary state in the coal mines of
Northumberland and Durham long before Patents were dreamed of. Printing
and gunpowder appeared in the world without the guarantee of Patents;
so also with the tanning of hides, the spinning of thread, weaving,
dyeing, printing, &c. The electric telegraph is the result of a series of
studies, and of the social capital of knowledge which these studies, and
others foreign to the object as it were, have formed. Patents or rewards
which have since been granted only concern modifications, more or less
ingenious, of the original principle.

For what are inventors now doing? Without seeking in any way to detract
from the merit of their labours, we may boldly assert that they modify in
a profitable and economical way the older processes; instead of welding
iron, they roll it; instead of the cold, they use the hot blast, in
smelting.

To the tanning of hides they add currying, shamming, graining, polishing,
&c. Are these services which cannot be sufficiently rewarded in the
free working of the idea? Are they services which exceed by a hundred
cubits those rendered by great manufacturers, large capitalists, intrepid
seamen, or profound thinkers? And if, carrying out the argument of M. le
Hardy de Beaulieu, we should say, credit being necessary to the progress
of the community, and being realisable only on condition of a just and
ample remuneration for the exceptional labour which it requires, and of
a recompense proportionate with the risks incurred, the community ought
to grant to the bankers exceptional rewards, or assure to them a special
and perpetual privilege,—should we not be going on the premisses of the
learned Belgian Professor?

No doubt that branch of credit, the issue of notes, is at present allowed
in many countries to the great privileged banks; but may not the same
arguments apply to discount, the receiving of deposits, quite as well as
to the issue of notes?


VI.

To admit, with M. le Hardy de Beaulieu, “that the rights of inventors
are useful even to non-inventors,” we must allow that the progress of
invention would be stopped if the privileges guaranteed by Patents
were withdrawn. Now, we have already said that all human history up to
a very recent period demonstrates the weakness of the assertion. Man
has invented from the time he began to think and compare, and he will
continue to invent while he exists on this planet. Invention is nothing
else than thought.

If, as M. le Hardy de Beaulieu says—but which we doubt—there be no
fear that property in invention allows the inventor to exact for his
services a higher price than they are worth, neither need it be feared
that the absence of this right of property would hinder the inventor
from obtaining by his discovery all the profit which he has a right to
expect from it. This fear would only be justified in the event of his
being deprived by law of the right of using his own discovery. Now, this
right remains intact; only it is not exclusive. If the inventor saves
labour or outlay, the inventor will profit by this saving, like his
neighbours; he will profit by it before his neighbours; he will profit by
it exclusively so long as he can keep his secret, and while his opponents
are establishing rival works on the same principle.

M. le Hardy de Beaulieu tells us that the inventor can never take
advantage of his property to hold an unjust and injurious monopoly.

We will quote one example of a thousand from M. Louis Reybaud’s excellent
work on wool. Speaking of the wool-carding machines, the learned
Academician thus writes: “There may be cited twenty names engaged
in these discoveries, incomplete as a whole, almost all fortunate
in some detail. What is incomplete is laid aside, what is fortunate
is so much gain; the new comers discriminate and choose. After a
period of twenty years there are only three processes in use—those of
Leister, Hellsmann, and Hubner; of analogous merit, and each having its
partisans. Will they strive one with another? No, they compromised. M.
Holden gets the assignment, and also acquires, either by purchase or
by judicial decisions, the rights of Donisthorpe, Noble, and Croft.
Messrs. Schlumberger and Co., the assignees of Heilman, retain only
the manufacture of certain machines. We may imagine the wealth of a
business established on so many purchases and decisions. M. Holden has
added inventions of his own, and _he may be considered the master of
wool-carding until his Patents expire_. Nothing is more interesting
than the answers he gave on this subject before the Commission on the
Commercial Treaties. On his own avowal he is proprietor of 45 Patents,
28 taken by himself, and 17 purchased from others. In these 45 are good,
middling, and bad. He works them all _in obedience to the law_ and _to
guard against lapses_. In the bad, as well as the good, there is an idea
to defend and a chance of upsetting; he fears that in abandoning them
they might be used against him; _for one machine in constant use there
are forty-four which make a pretence of working; he does not hide it—it
is his interest to hinder, as much as to work_.

What would it be if, as it is demanded, property in invention, put on the
same footing with property in the land, were perpetual? By the present
system it may be the interest of one man to fetter improvement, and,
having acquired the mastery of it, to mortally wound it wherever it
appears! Is this not already too much the case?

Must we, then, repeat what reason and experience teach us, that unjust
exactions cannot be made under a system of open competition, but always
spring up under the shelter of privilege?


VII.

The eminent Professor of the “Musée de l’Industrie Belge” makes a just
and well-founded criticism on the diverse laws of different countries
relating to Patents. Usually law-makers do not appear so perplexed, nor
contradict themselves so frankly; this is because, when we forget what
is right, when we leave principles to make a legal caprice, we sail over
unknown seas, where no lighthouse guides us, nor compass shows us the
right direction.

He attributes to the defective state of these laws “the almost unanimous
censure displayed either against the legislation or against property in
inventions.”

Would it not be more reasonable to acknowledge that if the learned
law-makers of the numerous countries in which the principle of property
in inventions has been adopted have not been able to frame laws capable
of protecting the rights of pretended proprietors conjointly with those
of individuals and society at large, it is because the principle is
radically wrong, and contrary to the general interests of mankind? The
law-giver finds an obstacle at every side in legitimate scruples; he
fears to give too much, and he fears to take too much.

At present the censure is almost unanimous, it is acknowledged. Let us
suppose that property in invention were abolished, and what complaints
would result from the abolition? Few or none. When the inventor knew
that, placed on the same level as all other workers, he must only rely
on his intelligence, his capital, his time, and his right arm he would
leave off claiming a privilege and complaining of the insufficiency of
his rewards. At present the inventor says to the State: “I have found
out a great thing, but I require your protection; you must place at my
disposal your agents and your law-courts; the first shall enter the homes
of my fellow-citizens, shall search their drawers, examine their books
and papers, in my interest. By the second, their cause being lost, shall
be condemned to ruin and misery. I am about to bring ruin on such and
such manufacturers, to condemn a crowd of work-people to idleness; but
you must grant me a privilege which will place me beyond the reach of
all opposition, and allow me to make a fortune, quietly and without much
chance of a failure.”

What difference do the champions of Patents find between this language
and that which was held by the Protectionists? They also required
Custom-house officers, and law-courts always open, to punish the
smuggler; they further required the ruin of those who traded with distant
countries, and the continual inactivity of our mercantile marine and
sea-board population.


VIII.

The honourable Belgian economist next combats the opinion of those
who, struck by the numerous and weighty inconveniences presented by
the Patent-Laws, and their extreme diversitude in every country, have
imagined a remedy in the expropriation of invention for the public good.

We shall be far from attaining our object if the reader has not
already understood that, renouncing all idea of property as applied
to manufacture, we shall not discuss this phase of the question. We
will say, however, that we must protest with all our might against the
following principle, expressed by M. le Hardy de Beaulieu: “Neither can
we admit,” says he “the justice of expropriation for the public good so
far as it concerns property in inventions any more than in real property.
Here also,” he adds, “the _right_ of one ought to prevail over the
_interest_ of the greater number.”

It is no doubt intentionally that the word _interest_ in this phrase is
put in opposition to the word “right.” But would it not be more correct
to say, the _right_ of the community ought to prevail over the _interest_
of the individual.

Individual right in property is certainly worthy of respect, and cannot
be called in question; but to our thinking, the right of the community
precedes and is superior to it. A part cannot be greater than the whole;
no one can place his right above that of mankind, and the individual
cannot oppose his will, good or bad, on the whole community.

We belong to no learned corporation—a simple volunteer in the army of
economist disputants—and have no other banner than that of the truth;
but we cannot refrain from saying one word in defence of those whom the
learned Belgian speaks of among many others in these terms: “The judgment
of the Academy of Sciences on the steamboat invented by Fulton may help
to form an estimate of the contradiction which experience sometimes
inflicts on the best-intentioned verdict of a committee of _savants_.”

We assert as a fact that if the steamboat presented to the Academy of
Sciences by Fulton were now submitted to the judgment of a committee of
machine builders, they would declare unanimously that the boat could not
navigate. We wish in no way to seek to depreciate the acknowledgments
which mankind owes to Fulton; but his invention, as all are at starting,
was only a sketch, which required half a century of labour to perfect and
to make as practical as it now is.

Here there is room for an observation which must be noted.

The advocates for the principle of property in inventions fall into
ecstacies before a transatlantic steamer, and exclaim, “Behold, what a
crying injustice! what deplorable ingratitude! Society has denied the
rights of the inventor to this wonder of the sea! He died in poverty, or
nearly so.”

Others go further back, and attribute to Solomon de Caux, or to Papin,
all the honour; they forget that between Papin, or Solomon de Caux
and Fulton, a crowd of men of genius brought their contributions
of knowledge, experiment, and work of every kind; and that between
Fulton and the makers of our day there are so many inventors, so many
explorers, fortunate or unfortunate, ridiculous or serious, whose
attempts or applications have helped to perfect the steam-engine, that it
may truly be said that every one has had a hand in it.

It is the same with the railway, the electric telegraph, and the
different machines for spinning, carding, weaving, &c.


IX.

To pretend, as does the defender of the principle of property in
inventions, in the ninth paragraph of his work, that the sudden and
inconsiderate introduction of a new invention may cause a sensible
injury to existing manufacturers, and that it is consequently advisable
to maintain the system of Patents, which during a certain time limits
their use and hinders production, to prevent the lowering of prices
immediately at least; so to pretend is to renew the plea of the protected
manufacturers, who demanded that the greatest precautions should be
taken to facilitate the transition from Protection to Free-trade. But
we do not see clearly what benefit there can be to the community at
large in delaying the advantages to be derived from an invention. The
misunderstood interests of certain manufacturers may appear to require
this delay, but common sense tells us that manufacturers and consumers
have every interest in immediately adopting every invention which saves
labour, capital, and time.

If we look back, we will see that a delay of this kind would have
retarded for an indefinite period the discoveries of Columbus in order
to avoid a sensible injury to the monopoly which Venice had acquired in
Eastern commerce. We maintain, as indeed experience proves, that however
innovating inventions may be, displacement of labour occurs gradually. We
will only cite, in support of this assertion, the well-known instance of
the substitution of printing for manuscript copying. It may be answered
that the substitution of mechanical spinning and weaving for hand-work
caused great suffering. We answer, that you should blame the system of
Patents, which, raising inordinately the cost of the machines, must
have restricted labour, although they lowered the price of the product.
If there had been no royalty to pay to the inventor, the number of the
machines would have rapidly increased, and a greater number of workmen
would at once have found employment similar to that to which they had
been accustomed.

How many enterprising and intelligent speculators would most eagerly have
availed themselves of these new outlets for their activity, if the course
had been cleared of all these obstructions which the law has arbitrarily
established.

At the risk of being considered by the honourable Professor grossly
ignorant of the laws of political economy, we do not believe that
monopolies will always exist, as he ventures to affirm. We know that
there always will be intellectual superiority, unrivalled artistic
ability, or special natural advantages; but these do not constitute
monopolies, in the proper acceptation of the term; and the object we
shall not cease to strive for is that no others shall exist.


X.

It is beyond our province to consider the inquiries of M. le Hardy de
Beaulieu as to the best plan of securing to inventors exclusive right in
their discoveries. To take up this question is to undertake the discovery
of the philosopher’s stone, or the squaring of the circle; several
generations have vainly grappled with it, and the different attempts
made without satisfactory results in almost every country prove this
conclusively.

But the honourable Professor seems to calculate on the improvement of
public morals, in order to reach the point where every attempt against
the property of the inventor shall be considered as guilty as robbery, or
as any injury done to property existing in material shape.

Under the uncompromising Protective system also it was attempted to
improve the morals of the public, who would not see the equal guilt of
the smuggler and the robber, and always loudly protested when repression
was enforced by bloodshed.

No reform of public morals will change the nature of these acts; they
will always be received as the appeal of right against abuse; and we
would deeply pity the country where it would be sufficient to say such is
the law, and where no conscience might protest against it.


XI.

“Discovery, the appropriation and creation of outlets, is too complicated
a work,” says M. le Hardy de Beaulieu, “for the inventor singly, and
especially without the aid of capital, to undertake with sufficient
chance of success.”

Here again we believe the learned economist is in error; he seems to
imagine one inventor arriving at perfection either at a jump, or after
many attempts—one inventor giving us at once our ocean steamer, or a
spinning-mill with a hundred thousand spindles! Inventions go more
slowly; when they spring from the brain of the thinker, they are only
sketches, and no man in his senses will risk a large capital before
making many trials, and that only on a small scale. We do not believe
there has been a single invention which, after numerous trials, has not
been modified, improved, and perfected.

And how many have at last been thrown into oblivion, from which they will
never be recalled?

Also, when we see the defenders of property in invention draw a sad
picture of the piercing miseries which inventors of these last have had
to endure, we are always tempted to ask them to show us the pitiful
account of ruin caused among those who placed faith in their promises
and delusions. Every medal has its reverse, and if more than one real
inventor has been misunderstood, many of the too-confident have been
victims of the mad and inapplicable ideas of inventors who imagined
themselves men of genius.

Is the law, which seems to promise an Eldorado to all inventors, to blame
for these losses, for these undeserved sufferings?

Bernard de Palissy’s saying, “Poverty hinders the success of the clever
man,” is often quoted. But this saying will always be true, whatever the
law may be. Can we admit that if perpetual property of invention had
existed in his time, Bernard would more easily have found the money which
he required?

The success of an invention is secured by the services it can render
being easily understood, immediate, and speedily realisable. The
capitalist, in dealing with hazardous undertakings—and inventors’
undertakings “are always hazardous”—does not calculate on perpetuity.
He works for immediate and large profits; he is in a hurry to realise,
because he knows that some other invention may dispossess him of all his
advantages. Little does he care, therefore, about the perpetuity.


XII.

In his twelfth and last paragraph the learned Professor answers several
minor objections to the system of property in inventions—objections which
seem to us not to carry great weight.

However, in answer to the objection taken from the case of two
applications for similar Patents, made at intervals of a few minutes
only, the eminent economist says that this case occurs only at rare
intervals, and making light of the rights of the slower, affirms that it
is not worth considering. Does not this denial of a right on account of
its infrequency, however, seem to show how arbitrary and artificial is
the constituting of property in invention?

We are among those who believe in the harmony of all economic relations,
of all legitimate interests; and when we see the right of one sacrificed
to false exigencies, we mistrust the exigencies. We believe them unjust
and contrary to the principles of equity, which forms the basis of all
economic science. We should wish to have seen M. le Hardy de Beaulieu
more logical in his deductions, claiming, as he has done, for real
property [la propriété foncière] that the right of one ought to prevail
over the interest of the greater number, and give a chance of obtaining
an indemnity, if he could not be assured of a part of the property
[Donner ouverture a l’obtention d’une indemnité si l’on ne pouvait lui
assurer une part de propriété].

But we repeat, these questions of the arrangement [organization] of
property, which we do not acknowledge, are beyond our province, and
if we accidentally touch upon them, it is only to show how little the
foundations of this right are similar to those on which rests the
principle of material property.

In recapitulation, we reject property in inventions and the advantages
claimed for it, because it seems to us that all this scaffolding of legal
prescription and Government protection only results in throwing out of
their natural course a crowd of workmen who would become more useful to
society and to themselves in ceasing to pursue chimeras.

We reject the proposed assimilation of this property to that of the
soil, because the privilege sought to be created cannot fail to hinder
and lessen the right of each member of the body politic. We reject
this privilege because nothing justifies it; the services rendered to
society by inventors being nowise different in their nature from those
daily conferred by skilful manufacturers, intelligent agriculturists,
_savants_, navigators, &c.

Finally, we reject it because history attests that great discoveries were
made before there was any conception of such property, and that it could
hardly be in operation at this day, except with regard to modifications,
or, if you will, improvements [perfectionnements], which do not merit
this abstraction from the common right.


ADDITIONAL CHAPTERS (FROM THE MAY NUMBER OF THE _JOURNAL DES
ECONOMISTES_).

The question of granting or denying a property in inventions is of
such importance that the discussion raised by the honourable Belgian
Professor, M. le Hardy de Beaulieu, ought not to be allowed to drop, and
that we should try to renew it.

We believe it to be of importance for the future of manufactures and of
progress, and most especially to the security of real property, that
whatever is doubtful and disputed in this question be deeply studied, and
that all should be agreed as to what property is, and if this title ought
to be applied to all or any of the inventions which daily start up.

M. le Hardy de Beaulieu pretends that one of the most frequent errors
of those whose enlightenment ought most to guard them against it
is to believe that property being inherent in matter, is, like it,
imperishable, and that property in land especially is as durable as the
land itself. He adds that we should beware of it, because this error
lays open landed property without defence to the attacks of communists
and socialists, who, sliding down the incline of irresistible logic, are
fatally led to declare all property illegitimate, to whatever purpose it
is applied.

Here, it seems to us, is a misunderstanding which may be easily explained.

We do not believe that property is inherent in matter, any more than
we believe that value is confined to any given substance. We believe
that property is the result, the consequence, of human labour which
has been incorporated in matter. As long as value conferred on land by
labour endures, so long the property has a _raison d’être_, and cannot
be contested. It is labour which has allowed the utilisation of the
productive faculty of the soil, and productive faculty remains, like the
property, as long as labour is bestowed in preserving, improving, and
increasing it.

M. le Hardy de Beaulieu adds that he could cite numerous examples of
lands abandoned or sold at a nominal price by their owners, either
because they had exhausted and rendered them unproductive by an
unintelligent culture, or because they had not been able to withstand
the competition of more fertile soils, recently brought into cultivation
or brought nearer the common centre of consumption by a considerable
reduction in the expense of transport.

We do not contest this fact, of which the exactness may be verified any
day in the increase or diminution of the value of property induced by the
various changes brought about either in the grouping of the population,
in the modes of culture, or in the means of transport. There are,
however, few lands completely abandoned; to find examples, we should
probably have to go back to those fatal times when by force of conquest
proprietors were removed or all their means of culture and production
were suddenly seized.

But we do not see how this can help the argument of M. le Hardy de
Beaulieu. It has small relation, it seems to us, to the question of
property in inventions, that—perpetual by law, as long as labour
continues and renews it—landed property should sometimes come to an end
by occurrences or violence such as we have been speaking of.

However, to state all our thoughts on the subject of landed property,
we must confess (and here may be seen in all its clearness the radical
difference between placing under culture, or cropping land, and working
an idea), the vindication of property is found in the fact that land
can only be cultivated by one at a time, must be subject to one will,
and under one direction. It would be to my injury and the injury of the
entire community that Peter should be allowed to plant potatoes in the
field where Paul has already sowed wheat, or that James should open a
quarry where John has built a house, and so on.

As we have already said, the power of the lever, the laws of gravity,
those of the expansion of steam, the attraction of the magnet, the
caloric of coal, the facility of traction imparted by the wheel, the
optical properties of glass, &c., may be utilised to the great profit of
all, in a thousand different ways, by a thousand individuals at once,
without the efforts of any one being diminished, hindered, obstructed,
or lessened, as to their useful result, except by the beneficent laws of
competition.

“The first cause of property,” says M. Matthieu Walkoff,[4] “is the
impossibility of matter being moved in more than one direction at one
time, or, to state it otherwise, of its being subject at one time to more
than one will.” “If matter,” says this eminent economist, “were gifted
with ubiquity, like ideas, knowledge, or truth, which several may use
simultaneously, and each in his own way, property would never have been
constituted; and it is even difficult to imagine how any idea on this
phenomenon could have arisen in men’s minds.” “In fact,” he adds, “to
preserve property in an idea would have required that it should never
have been expressed nor practised, to hinder it, being divulged, which
would have been equivalent to its non-existence.”

We do not go so far as M. Walkoff; we do not affirm that the
impossibility of matter being subject at one time to more than one will
is the _first cause_ of property; but we say it is the distinctive
character of property, and, like him, we cannot see a subject, for
property is a shape, plan, or system, which, to see once, as in a spade,
the wheel, the corkscrew, is to possess an indelible idea.

Besides, the author whom we have quoted expresses so clearly our opinion
on this subject, that we must further borrow from him the following
quotation, which will not be uncalled for at a time when property itself
is threatened. It is of importance that the lawful bounds should be
carefully marked:—

“Economists have too much neglected the first cause of the perpetual
subjection of matter to exclusive property. They made property to be
derived only from a man’s original possession; from himself and his acts;
that which leads to possession of the result of his activity. But this
reasoning only establishes the indisputable right of the appropriation
of that which he appropriates or produces; it does not explain why
exclusive property in material things is permanent, and does not show how
the very nature of things renders this possession inevitable. It is to
the incomplete understanding of the causes of property that is probably
attributable the contradictions of those economists who, while professing
the doctrine of free labour, are still in favour of the establishment of
artificial barriers against the free use by every one of ideas, skill,
progress, and other products of the mind, conceived and suggested, or
realised, by any one.”

Let us remark here that in fact the manufacturing community, more liberal
in practice than the economists in theory, are eager freely to submit
to inspection at exhibitions the processes in use at their different
factories.

“To require that an idea be subject to only one will,” continues M.
Walkoff, “is to require no less an impossibility than to pretend that
a material point can obey more than one will—that is to say, that it
can be moved in more than one direction at once. It is true that it is
not proposed to hinder ideas from being developed; it is desired simply
to convert their reproduction or their material realisation into an
indefinitely prolonged monopoly. But, in order completely to succeed in
anything, it is necessary that the object aimed at be in conformity with
the nature of things. Now, is it not placing oneself in opposition to
everything which is most natural, this denying to every one the use of
an idea? And even where this interdict is most successful, we soon find,
in a manner most unassailable by the law, works copied from those to
which the law has guaranteed a monopoly. The effect of the interdict is
here, as in all regulations contrary to the nature of things, essentially
demoralising; it begets fraud, entices to it, even forces to it, in
making it useful and often even indispensable. Forbid men, as was once
supposed by the witty author of the ‘Sophismes Economiques,’ the use of
the right hand, after a few hours, there would not remain, in the eye of
the law, a single honest man. It may be boldly affirmed that such a law
would be immoral, and all those which recklessly contradict the natural
order of things are incontestably such.”

In fact, we repeat, the field which I turned into a garden may not
be used by my neighbour as a pasture-land for his cattle; where I
have planted a vine another may not plant colza or beet-root; but the
steam-engine which I have invented, or the electric power which I have
discovered, may be applied to the grinding of corn, or the spinning of
cotton, or to the extraction of iron, or to the draining of a marsh,
or to traction by land or sea, without the productive force being
neutralised, wasted, or lost, like the application of the productive
force of the soil to different purposes.

Not only do the various applications of the idea not hinder the inventor
in the employment which he may make of it, but if the application made by
others is exactly the same as his, he is only subjected to the universal
law of competition—a law of progress, if ever there was one.

[4] Precis d’Economic Politique Rationale, page 44; Paris, 1868.


II.

The Hon. M. le Hardy de Beaulieu asks, “Why the effort which consists in
rendering productive some natural agent in which this quality was not
formerly recognised, should not entitle to a recompense of property in
the value given to the natural agent in rendering it productive, in the
same way that labour bestowed on barren land to render it productive,
to the profit of all, makes him proprietor of that portion of land who
performed this labour?”

Here is our answer: He who renders productive some natural agent has an
incontestable property in that agent which he has rendered productive,
but not in all similar or identical agents in nature; he who converts
a certain quantity of water into steam, to obtain a motive force, is
incontestably proprietor of the water he employs and of the steam, as
well as of the force which he obtains, but the remainder of the water,
and of the steam which may be produced from it, and the force which may
be derived from it, remain the common property of mankind; that is to
say, each should have it in his power to employ an unlimited quantity of
water to obtain the same results. The man who first broke up and sowed a
field never could have claimed as property all the ground in the world;
he only retained for himself, and that reasonably and justly, the portion
which he had reclaimed and rendered fertile by his labour.

We may add that he who renders productive some natural agent avails
himself in this work of all the acquired knowledge and all the work
previously done, and he would unduly monopolise it if the community
recognised his exclusive right to it.

It is said that Pascal invented the wheelbarrow; did he not borrow from
the social capital both the wheel and the axle, and the two arms, not to
speak of the species of box which forms with the other parts the whole
wheelbarrow?

Our learned opponent maintains “the perfect identity between the labour
of discovery, and of the putting the soil in culture, and of this same
labour applied to other natural agents which did not exist in indefinite
quantity; and he makes the deduction, having the same result, that
inventors placing at the disposal of mankind new quantities of gratuitous
utility, not hitherto available, deserve the same reward—property in the
natural agent, or portion of this agent, whose gratuitous services have
been acquired by mankind.”

We must allow that we do not know of any natural agent of which the
quantity is not indefinite, excepting only the earth; but steam,
wind, light, electricity, magnetism, the force of attraction, that of
weight, the affinity of particles, their divisibility, their different
properties, may be employed in whatsoever quantities, and still there
would be no perceptible diminution or restraint in the use of them
to any one. The only possible restraint is that which comes from the
unreflecting action of the law, from artificial hindrances and obstacles
which may be made law.

We believe, with Bastiat, that the greatest service that could be
conferred on mankind would be to remove the obstacles which stand between
his efforts and the supply of his wants.

How does M. le Hardy de Beaulieu not see that no one has the right to
make burdensome that which is naturally gratuitous, and that it is just
to exact that no one should appropriate any part of what constitutes
common property?

That learned Professor of the Brussels Museum tells us the inventor has
a right to say to the manufacturer, “Find out my process for yourself
if you can, search for it as I have done; but if you wish to spare
yourself this labour, and avoid the risk of spending it in vain, consent
to yield me a part of the expenses which I save you in simplifying your
appliances.” And he asks us if we find this demand unjust or unreasonable.

Not only do we find this demand just and reasonable, but we maintain
that it is the only one we can recognise. But M. le Hardy de Beaulieu
forgets that, according to the Patent-Laws, things are not thus arranged.
The inventor, with the law in his hand, and the law courts to support
him, says to the manufacturer, “It is forbidden to you to search and to
find; or if you search and find, you are forbidden to use the power or
the agent when you have found it: the process which I have invented is
my property, and no one has the right to use it, even if his researches,
his labour, enable him to discover it; even if he had commenced the
search before me, all his labour is lost. I alone am proprietor of this
agent, power, or process.” If this system be right, he who first rendered
productive the most indispensable natural agent could have confiscated
the whole world to his profit.


III.

M. le Hardy de Beaulieu acknowledges that the savage who first thought of
substituting a hut, as a habitation, for the cave, has not the right to
forbid the construction of others like it.

This concession is as important as the preceding, and we shall probably
end in agreeing. We must now inquire where may be found the exact limit
between inventions of which imitation is allowed, and those in which it
is forbidden.

The man who first made a canoe from the trunk of a tree, either naturally
hollow or artificially by fire, or otherwise,—may he forbid his
neighbours to make one like it?

If he may, where, then, is the difference between the hut and the boat?
If not, what is the reason for this prevention?

From the boat we might gradually go on, up to the latest Patent, by
invisible transitions; and we have still to find the exact point at
which M. le Hardy de Beaulieu might say, There is the limit!

We do not know whether, in the absence of all positive right which would
guarantee a recompense to the inventor of the hut, a natural sentiment
of justice would prompt the savages living in that country to make him
a present of some useful object as a reward for this service, as M. le
Hardy de Beaulieu suggests. We doubt it much; gratitude is an analytic
virtue. The savages would probably have a certain respect for this
man, whom they would look upon as gifted with superior qualities and
faculties, but the presents would only arrive when, the contemporary
generations being extinct, cheats and hypocrites would found on the
inventions of this man some system of religion.

Yes, we acknowledge the truth and justice of the principle in virtue of
which it is said, “Reward for merit.” But it must not be abused. Let a
cultivator make a thousand trials, a thousand experiments, to give to the
potatoes all the elementary qualities, all the nutritive virtue of wheat,
and arrive at the object of his researches—to what recompense will he be
entitled? According to the system of M. le Hardy de Beaulieu, no reward
could equal the service which this individual would have rendered to
mankind.

According to the system of non-property in inventions, this man would
only have made his trials and his experiments—he would only have risked
his advances of money, of time, and of labour—with the view of being able
to sell his potatoes at a higher price than before, and, in fact, they
would command a higher price, by means of which he would find himself
sufficiently rewarded. This man asks nothing of society; he requires
neither Patent, nor guarantee, nor monopoly, nor privilege; because the
law has wisely placed beyond the reach of Patents all improvements in
agriculture.[5] Does this imply that agriculture no longer progresses,
that the breeder of cattle does not improve, that they remain completely
_in statu quo_? It is not from M. le Hardy de Beaulieu that we learn that
the want of Patents does not hinder for an hour the progressive advance
of agriculture; quite the contrary.

Establish the same system for all that concerns manufactures, and
inventions will follow one another as rapidly as they now do. They will
be more serious, for those who are engaged in them will no longer be
excited by the allurements which the Patent-Laws dangle before their
eyes, and will no longer lose their time in running after useless things
and mere chimeras.

We do not wish to prolong too far this answer, but we cannot pass in
silence the arguments which M. le Hardy de Beaulieu thinks he has found
in the facts relating to the inventor of the mariner’s compass, and
to the discoveries of Lieutenant Maury. We will simply remind him of
the following passage from Bastiat: “He who can gain assistance from
a natural and gratuitous force confers his services more easily; but
for all that, he does not voluntarily renounce any portion of his
usual remuneration. In order to move him, there is required external
coercion—severe without being unjust. This coercion is put in force by
competition. So long as it has not interfered—so long as he who has
utilised a natural agent is master of his secret—his natural agent
is gratuitous, no doubt; but it is not yet _common_; the victory is
gained, but it is for the profit of a single man, or a single class.
It is not yet a benefit to all mankind. Nothing is yet changed for the
multitude, unless it be that a kind of _service_, though partly rid of
the burden of labour, exacts nevertheless full pay [_la rétribution
intégrale_]. There is, on one hand, a man who exacts of all his equals
the same labour as formerly, although he offers in exchange only his
reduced labour; there is, on the other hand, all mankind, which is still
obliged to make the same sacrifice of time and labour to obtain a product
which henceforth nature partly realises. If this state of things should
continue with every invention, a principle of indefinite inequality
would be introduced into the world. Not only we should not be able to
say, value is in proportion to labour; but we should no more be able
to say, value has a tendency to be in proportion to labour. All that
we have said of _gratuitous use_, of _progressive community_, would be
chimerical. It would not be true that labour [_les services_] is given in
exchange for labour [_des services_] in such a manner that the gifts of
God pass from hand to hand, _par-dessus le marché_, on the man intended
[_destinataire_], who is the consumer. Each one would always exact
payment for not only his labour, but also for that portion of the natural
forces which he had once succeeded in applying. In a word, humanity would
be constituted on the principle of a universal monopoly, in place of the
principle of progressive community.”—_Harmonies Economiques_, Vol. vi.,
p. 354.

We think, with Bastiat, that the use of natural agents ought to be
gratuitous, and that no one has the right to artificially monopolise in
such a way as to exact royalties [_prélever des redevances_], which are
not due, and which often are obstacles almost as insurmountable as those
which invention ought naturally to remove.

                                                             T. N. BENARD.

[5] Unfortunately, this is not true of British law. The illustration
founded on it is (like the rest of these papers) admirable.—R. A. M.




SPEECH OF MICHEL CHEVALIER, AT THE MEETING OF THE “SOCIÉTÉ D’ÉCONOMIE
POLITIQUE,” ON THE 5TH JUNE, 1869.

(From the June Number of the _Journal des Economistes_.)


M. MICHEL CHEVALIER, Senator, proposed to consider Patents in their
relation to freedom of labour [_la liberté du travail_], a corner-stone
of modern political economy, and to the principle of the law of property,
which is greatly respected by economists and which serves them as guide.

Does the principle of freedom of labour accommodate itself to that of
Patents? It may be doubted. All Patents constitute a monopoly; now, it is
indisputable that monopoly is the very negation of freedom of labour.

In the case of Patents, it is true, monopoly has a limited duration; but
in France this duration generally extends, if the Patent is worth it,
to fifteen years; which makes a long time in our day when the advances
of manufacturers are so rapid and so quickly succeed one another. A
hindrance or an obstacle which lasts fifteen years may greatly damage and
seriously compromise important interests.

It would be easy to exhibit by examples the extent and the importance of
these disadvantages.

In France the manufacturer to whom a new apparatus or a new machine is
offered is always in uncertainty whether the invention proposed is not
already the subject of some Patent, the property of a third party, in
which case he would be exposed to the annoyance of a law-suit at the
instance of this third party. It follows that he frequently hesitates
about adopting a machine, apparatus, or method of work, which would be an
advantage not only to the manufacturer, but to the community at large,
whom he might supply better and cheaper. Another case which occurs to us
is that of a manufacturer in whose factory an improvement has suggested
itself. He is forced to take out a Patent, and consequently to observe
formalities and undertake expenses with which he would rather dispense;
he is obliged, and becomes a patentee, whether he will or no; because,
if he did not, it might happen that the improvement might come under the
observation of one of the numerous class of Patent-hunters. This man
might take out a Patent, which is never refused to the first comer; and
once patented, he might annoy and exact damages from the manufacturer
with whom the invention, real or pretended, actually had its birth.

In France the annoyances which Patents may occasion are very serious.
It is well known that, by the French law, the patentee may seize not
only the factory of the maker, but also, wherever he may find it, the
machine or apparatus which he asserts to be a piracy of that for which he
has taken a Patent. He may take it away or put it under seal, which is
equivalent to forbidding the use of it. M. Michel Chevalier thinks that
this is a flagrant attack on the principle of the freedom of labour.

It can also be shown how, in another way, labour may be deprived of its
natural exercise by the monopoly with which patentees are invested.
When an individual has taken out a Patent for an invention, or what he
represents to be such, no one is allowed to produce the object patented,
or use it in his manufacture, without paying to the patentee a royalty,
of which he is allowed to be the assessor, and which sometimes assumes
large proportions. The result is, that the produce manufactured can only
be offered in foreign markets at a price so augmented that the foreigner
refuses it if some other producer, residing in a country where the Patent
is not acknowledged, establishes competition. Thus, for instance, France,
which worships Patent-right, cannot export the “Bessemer” steel to
Prussia, because there this product is not patented; whereas in France,
on the contrary, it is subject to a heavy royalty, on account of the
Patent.

The same thing may be said of velvets, which have been very much in
fashion, and for which a French manufacturer took out a Patent. The
effect of this Patent was, that French manufacturers of this stuff were
shut out from the foreign markets, because outside France they had to
encounter the competition of Prussia, whose manufacturers were not
subject to any royalty, the Patent not being acknowledged there.

In our day, when export trade excites so great an interest among all
manufacturing nations, and has so much influence on the prosperity of
internal commerce, M. Michel Chevalier believes that the observation
he is about to make ought to be taken into serious consideration. At
least it follows, according to him, that before approving and continuing
the present system of Patents, it would be necessary that they should
be subjected to uniform legislation in every country. Now there are
manufacturing nations—Switzerland, for instance—which absolutely refuse;
there are others where Patents are subjected to so many restrictions that
it is as if they did not exist; such is Prussia.

From the point of view of the right of property, it is contended that
Patent-right should be respected, since it only assures property in
invention in the interest of him to whom the community is debtor. M.
Michel Chevalier sees in this argument only a semblance of the truth. We
must first inquire whether an idea may really constitute an individual
property—that is, exclusive personal property. This pretension is more
than broached. A field or a house, a coat, a loaf, a bank-note, or credit
opened at a banker’s, readily comply with individual appropriation,
and can hardly even be otherwise conceived of; they must belong to an
individual or to a certain fixed number of persons; but an idea may
belong to any number of persons—it is even of the essence of an idea that
once enunciated, it belongs to every one.

Besides, is it certain that the greater part of patentees have had an
idea of their own, and that they have discovered anything which deserves
this name? Of the great majority of patentees this may be doubted, for
various reasons.

The law does not impose on the individual who applies for a Patent the
obligation of proving that he is really the inventor. Whoever has taken
out a Patent may very easily turn it against the real inventor; this has
occurred more than once.

Besides, the law lays it down as a principle that it is not an idea that
is patented, and constitutes the invention valid; and thus it excludes
from the benefit of patenting the _savants_ who make the discoveries, of
which Patents are only the application.

It is by the advancement of human knowledge that manufactures are
perfected, and the advancement of human knowledge is due to _savants_.
These are the men prolific in ideas; it is they who ought to be rewarded,
if it were possible, and not the patentees, who are most frequently only
their plagiarists.

M. Michel Chevalier does not desire systematically to depreciate
patentees. Among them there are certainly many honourable men. The
inventions, real or pretended, which they have patented are supposed to
be new and ingenious uses or arrangements [dispositions], by help of
which we put in practice some one or more specialities of manufacture;
true discoveries are always due to the _savants_. But in general these
arrangements, represented as new, have no novelty.

In the detailed treatises on Mechanics, Physics, and Chemistry, in books
of technology, with their accompanying illustrations, such as are now
published, we find an indefinite quantity of combinations of elementary
apparatus, especially of mechanical arrangements, and very often the work
of professional patentees consists in searching through these so numerous
collections for uses and arrangements, which they combine and group.
What right of property is there in all this, at least in the greater
number of cases?

Against the pretended right of property alleged by the defenders of
Patents there will be much more to say. There exists in the greater
number of cases much uncertainty about the inventors, even when true and
important discoveries are in question. Is it known with certainty who
invented the steam-engine, who invented the aniline dyes, or photography,
even? Different nations are at variance on these points, as formerly
they were on the birthplace of Homer. The fact is, that the majority of
inventions are due to the combined working [_collaboration_] of many men
separated by space, separated by great intervals of time.

On this subject M. Michel Chevalier repeats what he heard from an eminent
man who was Minister of Finance at the time when Daguerre received the
national recompense which had been awarded him with the acclamations
of all France. One of the Government clerks brought to this eminent
personage proof that he too had made the same invention; and also there
were the labours of M. Niepce de Saint Victor, analogous to those of M.
Daguerre.

[M. Passy, the chairman of the meeting, confirmed the statement of M.
Michel Chevalier on this fact.]

M. Michel Chevalier, in continuation, remarked that in our time
industrial arts are subject to great changes in the details of their
operations.

Independently of the general alterations which from time to time
completely change the face of any given manufacture, there is no
important workshop where some useful notion is not occasionally suggested
by some mechanic or overseer, which leads to minor improvements [_un
perfectionnement de détail_]. It would be an abuse to grant, during a
term of fifteen years, or even a much shorter, exclusive use of any
particular improvements to any single individual. It would not be just,
for it is quite possible that the idea might have occurred to another
at the same time, or that it might occur the next day. It would even be
against the general interest, for it would fetter competition, which is
the chief motor in the progress of the useful arts.

But it is said inventors are useful to society; we must therefore
recompense them. To this M. Michel Chevalier answers that it may be
too liberal to confer the flattering title of inventor on men who,
when a veritable discovery has been made by _savants_, push themselves
forward to appropriate the profits, in securing by Patents the various
special applications which may be made of it. Besides, there are
different sorts of recompenses; there are other than material rewards,
and these are not the least coveted. The _savants_ who are the greatest
discoverers are satisfied with these immaterial rewards—honour, glory,
and reputation. The example is worthy of recommendation; not but it is
quite allowable for a man to extract from his labour [_travaux_] whatever
material recompense he can. But, in many cases at least, the Patent is
not necessary for this purpose. The authors of some useful discovery
would often have the resource of keeping their secret and working the
invention themselves. That would last for a time. Even under the system
of Patents several inventors have thus sought and found an adequate
remuneration.

Thus the famous Prussian steel manufacturer, M. Krupp, has taken out no
Patent, and yet has made a colossal fortune; also M. Guimet, of Lyons,
inventor of French blue. Their secret remained in their own hands for
more than fifteen years, the maximum duration that their Patent would
have had in France.

Lastly, in the case of some truly great discovery it would be natural to
award a national recompense to the inventor. If James Watt, for instance,
had received from the British Parliament a handsome sum, every one would
have applauded it. These rewards would not impoverish the Treasury, since
similar cases are of rare occurrence.

In recapitulation, Patent-right may have been allowable in the pasts
when science and manufactures had not yet formed so close and intimate
a union. It was advisable to attract towards manufactures, by means of
exceptional inducements, the attention of those who made a study of the
sciences. But now that the union is consummated, Patent-right has ceased
to be a useful auxiliary to industry. It is become, instead, a cause
of embarrassment and an obstruction to progress. The time is come to
renounce it.

Another speaker at the meeting, M. PAUL COQ, thought that, on a question
so delicate and controverted history furnishes instruction which directs
to a right solution. Notably Franklin, a genius eminently practical,
declared himself unwilling to avail himself, as to his numerous
discoveries, of any Patent. The refusal of this great man is founded upon
the principle that every one receives during his whole life ideas and
discoveries from the common fund of knowledge by which all profit, and
therefore ought, by reciprocation, to let the public freely benefit by
every invention of his. This, with Franklin, was not a mere sentimental
truth, but a practical conviction, based upon reasons worthy of the
author of “Poor Richard.” There is in the bosom of society a constant
exchange of beneficial thoughts and services. Every one stimulated by the
efforts of others ought, in the spirit of equity, to make the community
participants of the improvements and useful applications for which he
has in a manner received payment in advance. On this system, equality,
competition, and freedom of industry find their account in the law of
reciprocity; whereas, on the footing of privilege established and defined
by the theory of Patents, there is created an artificial property, along
side of that rightful property which has in it nothing arbitrary or
conventional, and depends simply for its existence on civil law. These
circles, thereby traced round the inventor and his discovery, are so many
hindrances and so many obstacles to the expansion of forces, in the way
of continuous progress. Under pretext of maintaining individual rights,
improvement is in reality paralysed by superimposed difficulties, and
especially litigation without end, on account of which nobody dare touch,
either far or near, what has been appropriated. The numerous actions
at law, raised with a view to ascertain whether such and such a process
constitutes a perfectionation, a new application, or merely an imitation,
are my proof. There is another proof in the distinction attempted to be
made between matters patentable and methods scientific which may not be
patented. All this, as it affects progress, the free expansion of forces,
is infinitely grave. Franklin has found for his precepts, already alluded
to, more than one adept pupil. One modest _savant_, whose name deserves
to be better known among us for his numerous services rendered to science
as well as to the arts—Conté—honoured to replace in France the pencils
of England, the importation of which was not possible in time of war—not
only supplied by his new process the want of plumbago with success, but
made it better than the English. To him are due, besides black-lead
pencils, which make his name celebrated, the crayons of various colours,
which have been so serviceable in the arts of design. Well, like
Franklin, he presented his process to industry, and contented himself
with being first in the new manufacture. It must be remarked that he who
thus opens the way easily maintains the first rank which the date of his
invention assigns him, and which public confidence assures him....

Before concluding, M. Paul Coq adverted to the distinction between
the right of property generated by a creation of a work of art or of
literature, and factitious property decreed in the interests of industry.
The skilful painter, who should copy faithfully line for line, tint for
tint, a _chef d’œuvre_ like the picture of Ingres, which every one knows,
“The Source,” in order to expose it for sale and pocket the advantages,
not merely lays hold of the property of a great artist who lives by the
fruit of his talent, but perpetrates, in all points of view, an action
mean and vile. To inventions in the domain of the useful arts, processes
and operations do not carry the stamp of personality, which is the glory
of the artist and author, and which of itself constitutes a protection
equal to that which protects right of property.

The invention is something _impersonal_, like a service rendered and
returned, which is not exchanged or paid by services of equivalent
weight and description. There is, therefore, no plausible objection
to maintaining unimpaired the common right, which, by its freedom of
movements, its equality, and its reciprocations, alone efficaciously
favours the result of which these are the indispensable corollaries.




EXPERIENCE IN FRANCE.

_The following observations were published in the AVENIR COMMERCIAL,
November 1, 1862, and June 28, 1863, have been kindly translated and
presented by the Author_:—

THE RESULTS OF A BAD LAW.


I.

When you walk along a public road, if you find a watch, a diamond, a
note of a hundred or a thousand francs, and, far from seeking the owner
to give it back, you apply it to your own use, moral law and civil law
take hold of you and condemn you without hesitation. It matters not
whether he who lost what you found be rich or poor, his carelessness, his
negligence, or the accident that caused his loss, give you no sort of
right to use it and make it yours.

There are not two opinions on that point: the laws of all countries
condemn the man who enriches himself with what chance throws in his way.

But if a scientific man—seeking some impossible discovery, finds a clue
to an idea—meets with an interesting phenomenon—indicates, in some way,
new properties belonging to some bodies—announces the results of some new
chemical combination—it is only a scientific research. This or that other
skimmer of inventions can get a Patent for the application of the idea,
of the discovery, of the method; and the law guarantees his pretended
right not only against all reclamations of the scientific man who has
discovered the whole, but against the whole world, deprived of all
possibility of making use of the discoveries of science!

And not only the law forbids every one to use this or that produce,
except if made by the patentee, but it also prohibits the use of any
similar produce made by different means.

Then, to prevent all inventors to approach the ground that the patentee
has chosen, he takes immense care to have his Patent made of formulas so
wide and elastic, that all inventions in the same course of ideas will be
infringements in the eye of the law.

To these observations it is answered that industrialists or scientific
men are equal before the law, that all have an equal right to its
protection, but on the express condition that the invention be put in use.

We see very well where is the privilege of the chance patentee, who has
made the discovery of the scientific man his own, but we do not see where
is its justice or equality.

We see very well where is the privilege of the man who has had nothing to
do but to apply the idea deposited in a book by a scientific man—an idea
that, in fact, was at the disposal of the public, since the discoverer
did not claim its proprietorship; but we do not see why the law gives a
monopoly to him who has only borrowed that idea.

But we are told, the law is quite equitable, for it, says, “To every man
his due. The scientific man discovers a body, glory be to him. If he
will add to it some profit, let him indicate the properties that may be
used industrially, and let him take a Patent for his discovery. But he
must hurry, because if industry forestalls him, industry will get the
profit.”[6] It is exactly as if this was the law: A millionaire drops a
100-franc note. It will not make him much poorer. If he wants to get it
back, let him return where he came from and seek along the road. Let him
hurry, for if this note is found, he who will have got it may keep it.

Common sense and equity would join to say that when a scientific man
indicates a discovery or an invention, that invention or discovery
remains at the disposal of every one if the finder does not claim the
exclusive right to work it. But the law is different, and the results are
soon made apparent.

In 1856 an English chemist, of the name of Perkins, was seeking the
way to make artificial quinine. In the course of his experiments he
discovered in the laboratory of M. Hofmann the property residing in
aniline of producing a violet colour by the action of bi-chromate of
potass.

Perkins got a Patent for this discovery. The attention of the scientific
and industrial classes being called to this property of aniline, and to
the possibility of extracting from it divers colouring matters, several
French and other chemists and manufacturers got Patents for many more new
processes.

In 1858, Hofmann, continuing to study aniline, discovered the red colour.
He sent a memoir to our Académie des Sciences, in which he gave the exact
method to produce this magnificent crimson red.

Hofmann took no Patent; it seemed as if he wanted to present gratuitously
to tinctorial industry a new and beautiful produce.

Six months after, a manufacturer, who as early as 1857 had tried to
get patented in France the patented discovery of Perkins, sold to a
manufacturer of chemical produce a process copied from the discovery
of Hofmann, by which the red of aniline could be manufactured by the
reaction of the bi-chloride of tin. The Patent was granted, and the
produce manufactured. But very soon after, in France and abroad, more
advantageous and more scientific methods, preferable to the patented one,
were found.

All the French manufacturers who tried to use any of these new processes
were prosecuted and condemned for infringement on the right of the
patentee. It then followed that one kilogramme of red of aniline was sold
abroad for £12, and the monopolisers sold it for £40 in France.

This could not last, particularly after the treaty of commerce, by which
printed and dyed goods could be introduced. Manufacturers threatened to
give up work, and the patentee thought proper to reduce his prices.

But another result, no less fatal to French interests, soon followed.

The most intelligent manufacturers of colouring-stuffs, those who were
at the head of that branch of industry, and had concentrated in Paris,
Lyons, and Mulhouse the fabrication of the finest and most delicate dyes
for the home and foreign market, went to establish new factories across
the frontiers.

The existing Patent prevented them from satisfying the demands of their
customers abroad, who required some aniline colours, and they were
obliged to carry their industry to foreign parts.

The following is the list of the manufacturers who have founded new
establishments beyond the reach of the monopolising Patent:—

A. Schlumberger, of Mulhouse, new factory at Bâle (Switzerland); Jean
Feer, of Strasburg, new factory at Bâle; Peterson and Seikler, of Saint
Denis, new factory at Bâle; Poirrier and Chappal, of Paris, new factory
at Zurich; Monnet and Dury, of Lyons, new factory at Geneve.

Five other establishments, raised by Swiss people but under the direction
of Frenchmen, are being founded at Bâle, Zurich, Glaris, and Saint Gall.
Then there are still to be founded, the factory of M. A. Wurtz, brother
to Professor Wurtz at Leipsic; another, by M. O. Meister at Chemnitz; a
French factory at Elberfeld; three, also French, in Belgium; and three
others in Switzerland.

It is, in fact, a general expatriation, like the one that followed the
revocation of the Edict of Nantes. It is worthy of remark that in Germany
there are twelve Patents for making colours or dyes from aniline; in
England there are fourteen, in France (thanks to the interpretation given
to the law) there is _one_. “_Et nunc caveant consules._”

                                                             T. N. BENARD.

[6] Extract of a paper on the subject in the _Propriété Industrielle_.


II.

In our number of November 1, 1862, we published on this very same
question an article in which we stated that about twenty French
manufacturers had been forced to go abroad to escape the unheard-of
exigencies of the law of Patents. We were answered by insults that we
disdained; but the facts that we had revealed were not contested.

A volume just published on the legislation and the jurisprudence of the
law of Patents enables us to show another side of the question, and
to prove how injurious it is to manufacturers and inventors, and how
profitable to certain gentlemen of the Bar who have the speciality of
cases for infringement on Patents. We say it openly and fearlessly, if
it was not for the lawyers who swim freely amongst the windings of that
law, it would not have a supporter. Manufacturers and inventors are
shamelessly made a prey to a group of pleaders who defend right and wrong
with the same deplorable alacrity.

What an immense number of law-suits have arisen from the 54 articles of
that law! The volume we have in hand has been written with the intention
of giving to the public a view of the jurisprudence adopted by the Courts
in the interpretation of each paragraph. A summary of the trials that
have taken place since its promulgation in 1844 follows each article of
the law.

Article I. is as follows: “Every new discovery or invention, in all kinds
of industry, ensures to its author, under the conditions and for the
time hereafter determined, the exclusive right to work for his benefit
the said discovery or invention. This right is established by documents
granted by the Government, and called Patents.”

The first trial that we find in the list took place in 1844. The question
was, Whether the words _all kinds of industry_ could be applied to things
that are not in trade? The Court’s decision was for the affirmative.

The second trial was raised to know if, when a working man is only
executing the orders given to him by another party, with the indications
and in the interest of this last, the working man may be reputed the
inventor, and if the results of his labour may have the character of an
invention, so that he may claim [revendicate] its ownership by a Patent.
The Court decided for the negative.

We pass four other suits running on the interpretation of this first
article, that seems so innocent, so inoffensive, and come to the
eleventh trial. In conferring by Article I., under the conditions that
it determines, on the author of new discoveries or inventions the right
of working them exclusively for his own benefit, did the law intend to
deprive of all rights those who were using the same means of fabrication
prior to the delivery of the Patents? The question was, in other terms,
to know whether the Patent is good and legal against every one except
against the party who, having worked it for a certain period anterior to
the granting of the Patent, might be kept in possession of his industry?
On March 30, 1849, the Court of Cassation decided for the affirmative in
the case of “Witz Meunier _versus_ Godefroy Muller.” You fancy, perhaps,
that the affair is all right and settled; the Court of Cassation has
spoken, and every inventor who will not have taken a Patent may work out
his invention without fear of prosecution from a patentee coming long
after. You are greatly mistaken. You do not know how keen, and ardent,
and clever, and anxious are the seekers of Patents. Previously to that
the Court Royal of Paris had declared in May, 1847, in the case of
“Lejeune _versus_ Parvilley,” that the Patent can be put in force against
the manufacturer working the invention before it was patented, if he has
not published it before the patentee, and if the patentee is the first
who has introduced it in commerce. But in 1847 the Court Royal of Paris
did not know the opinion given in 1849 by the Court of Cassation. We see
how unsafe are the things of this world. Say if you can ever be sure of
holding and knowing the truth.

On August 19, 1853, the same question was brought again before the
Court of Cassation in the case of “Thomas Laurent _versus_ Riant,” and
the Court decided that the Patent can be put in force against whoever
possessed the invention before it was patented. There is at Lyons a
manufacturer who for a great many years fabricated a dye for which he
has not taken a Patent, but the secret of which he carefully keeps to
himself. If, by some manœuvring, by some doubtfully moral means, an
industrialist—as there are too many amongst the patentees—contrived
to worm out this secret, and got a legal Patent, he could work the
discovery and oblige the Lyonese manufacturer to cease all productions
of the same kind. Would it not be an admirable example of legality?

The contradiction that we have just noted between two verdicts given by
the same Court upon the same question gives us the right to say that the
magistrates ought to show a little more indulgence to those they condemn.
When there is a law like that relative to Patents, common mortals are
very excusable if they make a mistake in interpreting in a wrong way this
or that expression, since we see the highest Court in the country giving
sometimes one interpretation and sometimes another.

The first article of the law has given rise to fifteen different suits,
inscribed in the pages of the volume we hold. These fifteen suits have
been tried before the Civil Courts or the Court of Cassation. People may
well be frightened at the mountain of papers that must have been used and
destroyed by the attorneys, counsel, barristers, &c., before the public
could have any clear notion of what the legislators meant.

The second article is as follows: “Will be considered as new inventions
or discoveries—the invention of new industrial produce; the invention
of new methods or the new application of known methods to obtain an
individual result or produce.” This article, we may say, is the main beam
of the edifice, consequently it has given occasion to no less than 104
suits. One might fancy that the multitude of judicial decisions given by
the Courts has thrown the most brilliant light on the interpretation to
be given to the three paragraphs forming the second article. Alas! these
paragraphs are just as obscure as before. For instance, the Imperial
Court of Paris decided on August 13, 1861, that the “change in the form
of a surgical instrument, even when there may result an advantage or
greater facility to the operator, cannot be patented.” But on July 26 of
the same year it had decided that “a production already known—a straw
mat, for instance—may be patented when its form, its size, and its length
are new.” So, again, the Court of Cassation decided, on February 9, 1862,
that “the production of a new industrial result is an invention that may
be patented, even if it is only due to a new combination in the form and
proportions of objects already known.” On the contrary, the Correctional
Court of the Seine decided on December 24, 1861, that a modification
of form, even when it procures an advantage, is not of a nature to
constitute a patentable invention. Can we not say with the poet:

    “Deviner si tu peux, et choisis si tu l’oses?”

The lawyers of Great Britain are accustomed to celebrate certain
anniversaries by a professional dinner. The President of the party, after
having proposed the health of the Queen and the Royal Family, calls upon
his brethren to join in a toast to the prosperity of the profession
they follow. This traditional toast is characteristic enough. It is as
follows: “_The glorious uncertainty of the law!_” We think the facts we
have related give to this toast a right of citizenship on this side of
the Channel.

                                                             T. N. BENARD.




IMPORTANT MESSAGE FROM THE SECRETARY OF THE CONFEDERATION, COUNT VON
BISMARCK, TO THE NORTH GERMAN FEDERAL PARLIAMENT.


                                                Berlin, December 10, 1868.

In the presence of the manifold and well-founded complaints concerning
the defective state of legislation on Patents in Prussia and Germany, the
Royal Prussian Government deems it important to have considered without
any further delay what course might best be adopted in the matter.

At the same time, however, and with a view to the position long since
taken by Government in regard to the question, it must not be omitted in
the first place to decide whether henceforth Patents should be granted
at all within the boundaries of the Confederation. The frequent polemics
on the principles of Patent-Laws, to which the repeated attempts at
reform have given birth during the last ten years, and more particularly
the discussions in the late German Federal Assembly, have enhanced the
questionability of the usefulness of Patents.

After taking the opinion of the Chambers of Commerce and the mercantile
corporations, the Prussian Government, on the occasion of the German
Federal Assembly Session of 31st December, 1863, gave utterance to the
doubt whether under present circumstances, Patents for inventions may
be considered either necessary or useful to industry. Since then the
Royal Prussian Government has taken the question once more into serious
consideration, and feels bound to answer it in the negative on the
strength of the following arguments.

From a theoretical point of view, it may be taken for granted that the
conferring of an exclusive right to profits which may be derived from
industrial inventions, is neither warranted by a natural claim on the
part of the inventor which should be protected by the State, nor is it
consequent upon general economical principles.

The right of prohibiting others from using certain industrial inventions,
or bringing certain resources and profitable means of production into
operation, constitutes an attack upon the inalienable right which every
man has, of applying each and every lawful advantage to the exercise of
his profession, which is the more obvious, as there exists a prevailing
tendency to free industrial pursuits from all artificial restrictions
adherent to them, and the time-honoured practice can only be upheld by
a thorough vindication and a practical proof of its fully answering the
purpose. To demonstrate this should be the chief aim of all arguments
against abolition.

To an argument which has repeatedly been urged—_i.e._, that the granting
a temporary exclusive right is indispensable (so as to secure for the
meritorious inventor a reward adequate to the mental labour and money
expended, as well as risk incurred, in order that there be no lack of
encouragement to the inventive genius)—the objection may be raised
that the remarkably developed system of communication and conveyance
now-a-days, which has opened a wide field to real merit, and enables
industrial men promptly to reap all benefit of production by means of
enlarged outlets for their articles, will, generally speaking, bring
those who know how to avail themselves before others of useful inventions
to such an extent ahead of their competitors, that, even where no
permanent privilege is longer admissible, they will make sure of a
temporary extra profit, in proportion to the service rendered to the
public.

It is, in fact, in the peculiar advantage produced by the early
bringing into operation of a fresh suggestion of their minds, that the
remuneration of those lies, who, through cleverness and steadiness of
purpose, succeed in satisfying existing wants in a manner less expensive
and superior to what previously was the case, and notwithstanding do not
obtain any monopoly. Not of less account are the practical impediments
which stand in the way of every effort to bring about an improvement of
the Patent-Law.

It is generally admitted by the promoters of Patent-right, that the
system of inquiry or examination, as it is now working in Prussia, cannot
possibly remain in its present condition, and the experienced officers
appointed to decide upon Patent matters and make the necessary inquiries,
unanimously confirm that opinion. Though provided with relatively
excellent means of ascertaining, the Prussian Technical Committee for
Industry had to acknowledge as early as 1853 (_Vide_ Prussian Trade
Archives of 1854, Vol. ii., page 173, ff.) that the question whether
an invention submitted for being patented might not perchance already
have been made or brought into operation elsewhere, was almost an
unsolvable one. Since then, inventions have augmented yearly in steadily
increasing proportion. The main difficulty, however, not only rests
in the impossibility of mastering the matter submitted, but equally
so with the upholding of firm principles relating to the criterion of
originality. If the inquiry do not altogether deviate from its primitive
object by patenting any and every innovation in construction, form,
or execution, which is presented, we fall into such uncertainty when
sifting actual inventions from the mass of things which are not to be
considered as undeniable improvements—owing to the continually increasing
and diversified combinations of generally known elements or material and
altered constructions or modes of application—that it is hardly possible
not to be occasionally chargeable with injustice. Every day shows more
clearly how annoying a responsibility grows out of such a state of
affairs, and it is highly desirable that the authorities no longer be
conscious of doing injustice in their duties on account of rules which
cannot properly be put into practice.

As for the often much-commended so-called “application system,” it
would by no means really answer the purpose; even without considering
the theoretical objections which might be raised against it. Its
practical results have been far from giving satisfaction wherever it
has been adopted. The complaints of the abuses and impediments industry
suffers under, and which are brought about through the overwhelming
mass of Patents, for the most part taken out with a view to swindling
speculation, the unpleasant experience acquired by those who take all
legal means so as subsequently to contest and defend Patents granted
without previous inquiry being made, have led to a reaction of public
opinion in favour of abolishing the system.

The unsatisfactory and quite abnormal state of all matters connected with
Patents in England and France had, years ago, claimed the most earnest
attention of the legislators, and led to practical deliberations on the
necessity and the means of effective improvements. The French Government
introduced a Bill in 1858, to the effect that the hearing of objections
to Patents applied for might, as much as possible, take place previous
to the same being granted. A similar system which is in force in England
has, however, proved inadequate in that country, and the commission
which, in 1863, made a detailed statement as to the merits of the
existing Patent-Law, recommended the adoption of official inquiry.

Under the circumstances, it can hardly be the question at all, for the
North German Confederation, to admit of the mere “application system.”
Nor can the imposition of high taxes [on patentees?] (not taking
into account their inconsistency with the real object of Patents) be
considered a sufficient corrective of the system, after the experience
acquired in England on this head.

Both the inquiry and application systems having proved defective, the
conclusion is arrived at, that the difficulties cannot be overcome
by means of altering certain details in the institution, but rather
arise out of constitutional infirmities of the institution itself. The
Patent system makes such distinctions necessary as are now practically
inadmissible, and the impracticability of which is by no means removed
through merely transferring the evil from one side to the other. It
must be granted that if artificial contrivances be at all required to
adequately remunerate an inventor for the services rendered to society,
they cannot be hit upon in this direction without hurting all important
interests.

That the final step of repealing Patents altogether should not yet have
been taken anywhere, in spite of the leading theoretical and practical
authorities having urged it, may be easily explained by the fact that we
have to deal with an institution which very long ago has taken root in
the usage of the industrial nations, and to which tradition ascribes most
of the immense progress industry has taken during its existence. To this
may be added the apprehension lest the country which would take the lead
in the matter might find itself at a disadvantage with the remainder.

Generally speaking, the anticipation of a profitable use to be made of an
invention for one’s exclusive benefit is, no doubt, a powerful incitement
for the inventive genius, and equally is it admitted that to temporary
Patent-right we owe the successive improvements on many a useful
invention.

Experience has, however, taught that in most instances Patents do not
fulfil their mission; that on the whole they have not proved an actual
benefit, either to the proprietor or the public; that the profits have
gone just as often into the pockets of strangers as into those of the
able inventor. When chiefly ascribing the progress made by industry
through technical improvements in many of the countries where extensive
regulations of Patent-right are provided, to the incitement consequent
upon the protection afforded by Patents, the fact is overlooked that
the great inventions made in old times, as well as the scientific
discoveries which in the modern era paved the way for industry, have
perfectly done without any such incitements. Against the stimulating
influence of monopoly upon individuals, we must, however, in a period
so extremely favourable to industrial progress, not underrate the very
important point, that it also checks the quick and fertile development
of a new thought, which, when totally free, might be expected to spring
up in a higher degree from the competing labours of all. Of course, it
is impossible to say whether in England, Belgium, France, and the United
States, industry, if supported by other favourable stipulations, might
not have taken an equal development without the protection of Patents;
but we have at all events an illustration of this being the fact in
Switzerland, where the absence of Patents has not at all been found
prejudicial to the public at large. The records of the latter country
may dispel all apprehension lest the abolition of Patents should place
national industry on an unequal and disadvantageous footing with foreign.
If Germany be foremost in the indicated direction, we must, it is true,
be alive to the very likely occurrence of her standing, at least for
some time to come, isolated on her platform. A favourable result of the
movement in either England or France can hardly be looked for at a very
early date, considering the state of public opinion prevailing in those
countries, as well as the large individual interests at stake, owing to
the wide scope for protection arising out of their Patent system, while
at the same time it is yet a fact worthy of remark, that neither England
nor France have been able to make up their minds as to reforming a system
the numerous defects of which are universally recognised. In Germany
the same difficulties do not present themselves to the same extent, the
less prolixity of our Patent institution not affecting the industrial
part of the nation in nearly the same ratio. The whole system in this
country has been less active in all directions; proof of this is given by
the statistics of Patents, as compared with those taken out abroad. The
actual items in 1867 were as follows:—

    For Prussia                 103 Patents.
     ”  Saxony                  179    ”
     ”  the Thuringian Union     33    ”
     ”  Brunswick                32    ”
     ”  Hesse                    20    ”
     ”  Oldenburg                12    ”
     ”  Bavaria                 214    ”
     ”  Würtemberg              139    ”
     ”  Baden                    46    ”

Whereas, in 1866, there were granted—

    In England (including the provisional protections)  3,453
    In France                                     about 4,400
    In Belgium                                      ”   1,700
    And in the United States                        ”   9,450

In Prussia, on account of the rigidly adhered-to preliminary inquiry,
87 per cent. on an average of the Patents applied for during the last
ten years have been non-suited, and only from 50 to 100 requests a year
were granted. Besides, it is scarcely subject to a doubt that even of
these only a small number has been turned to practical use. Again, the
amount of privilege the Patent ensures is less in Germany than abroad,
as in conformity with the clauses of the Treaty of 21st September, 1842
(and which provisions should be kept in force under any circumstances),
a Patent does not confer upon its proprietor (not taking into view
machinery or instruments) a prohibitory right against the importation,
sale, or consumption of foreign articles.[7]

The anticipation that the abolition of Patents might cause the results of
new inventions to be lost to the nation through the respective inventors
turning themselves towards the protection-affording countries, is not
confirmed by the experience acquired on this head in Switzerland. The
industrial who has invented a new process will, in most instances, be
influenced by other motives to bring the same into operation where
he has his factory and his already acquired customers. Nor can much
importance be attached to the apprehension that, should the Patent-Law
be repealed, inventors might show more disposition towards keeping new
inventions secret from the public; for, even assuming the abolition to
be an incitement to keeping inventions secret, yet it cannot be admitted
that any prejudicial change from the present state of things would take
place. Even now, under the rule of the Patent-Law, it is a recognised
fact, that to such methods of fabrication and resources as admit of being
kept secret, the very secrecy affords ampler protection than the Patent
itself. By thus drawing the conclusion that those inventions which might
eventually be kept secret are so at the present time as well, no actual
prejudice will be caused by one measure being in force rather than the
other.

The Royal Prussian Government, therefore, thinks that by completely
abolishing the Patent system within the limits of the Confederation (a
resolution recommended by economical theory, and which public opinion
has been sufficiently prepared for), instead of making any further and
necessarily unsuccessful attempts at reform, the circumstance of the
Confederation preceding other important industrial nations cannot be
considered an actual impediment, although it would be far preferable that
the South-German States should join in the measure, so as to extend the
innovation to all countries comprised in the Zollverein.

The undersigned is of opinion that previous to further inquiring into
the particulars of the Patent-Law, the North German Confederation
ought first of all to decide whether henceforth any protection by means
of Patents should be afforded at all within the boundaries of the
Confederation. Assuming this, and also considering that the Confederation
shall have to take a decision as to the attempts at reform, the
undersigned moves: “That the Federal Parliament appoint the Committee on
trade and intercourse, to deliberate on the question proposed, and report
on the same.

                                 (Signed)

                                                           “VON BISMARCK.”

[7] This mighty difference from our British practice is in harmony with
what I have shown is the scope of the original English Act, and with our
common law.—R. A. M.




PROPOSITION FOR THE ABOLITION OF PATENTS IN HOLLAND.

SECOND CHAMBER OF THE NETHERLANDS LEGISLATURE, SESSION OF 21st JUNE,
1869.—DISCUSSION ON THE ABOLITION OF EXCLUSIVE RIGHTS IN INVENTIONS AND
IMPROVEMENTS OF OBJECTS OF ART AND INDUSTRY—(PATENTS).


M. VAN ZINNICQ BERGMANN was not sufficiently prepared for the discussion
while the project was in Committee. He feels much sympathy for all such
measures as tend to do away with impediments to trade and industry.
At the same time, people ought to discriminate between the kind of
protection which is a hindrance to industry, and may be called monopoly,
and the one to which property is entitled on the part of the State.

At this part of his speech the hon. member indulges in extensive remarks
on the right of property. According to Roman law, the right of property
was a “_jus quod natura omnia animalia docuit_.” But that definition is
not a correct one, as the right of property is especially maintained in
civilised society.

After that, the hon. member launches himself into allegory. Try, quoth
he, to drive the lion from his den; he will defend it until his last
drop of blood! Look at the boy who snatches the young and tender bird
from its nest; the mother will pursue the robber, and not leave him.
Now, he should like to know whether an artist, an inventor, an author,
has, or has not, a right of property in his work which entitles him to
the benefits to be derived from it? This question he answers in the
affirmative, and refers to Soy, Massé, and the “Assemblée Constituante”
of France in December, 1791. And why should there be no right of
property? Perhaps on account of an article in the Civil Code, which
says, “_possession vaut titre_,” or of a restriction to a greater or
smaller lapse of time? We are continually referred to England and the
United States. But what is England? England is a country at the same
time emancipated and in course of emancipation. Duly considered, England
will be found to be, internally, in about the same state in which
the Netherlands were before 1795, or before the end of the sixteenth
century—(laughter)—but, the hon. member adds, always accompanied by such
improvements as rulers have successively granted with regard to Patents.
England may have had its commotions; but, nevertheless, charters have
never been otherwise but granted, and the privileges, exacted though they
may have been, were received at the hands of the King. And what have we
been doing? We expelled our Stadholder, and got annexed to France; the
principles of 1798 have taken root in our country, and continue to be the
basis for present action. The hon. member further argues that Patents
are granted to emancipated slaves, but free citizens take out “brévets
d’invention.” He is of opinion that it is a wrong impression that Patents
are to be placed upon a line with the abolition of guilds. There is no
connexion whatever between these institutions, and this he demonstrates
by reference to French authors. Even taking Michel Chevalier’s doctrines
for granted, he asks, “Could such difficulties not be obviated through
a _reform_ of the Patent-Law?” Once at a time, Alexander made himself
famous by cutting through the Gordian knot. That was a despot’s doing;
he might have deserved more fame had he succeeded in disentangling the
knot. Such should be the final aim the legislator ought to strive to
reach. Finally, the hon. member puts forward the question, whether the
passing of the law now before the House might not involve the country in
international troubles; for, Switzerland alone excepted, every country in
Europe has its Patent-Law. Besides, we are aware that, as far as literary
right of property is concerned, a neighbouring country has, against its
will, been compelled to maintain it. We, at our turn, might once have to
come back to what we want at present to repeal. Let us, therefore, be
cautious.

M. HEEMSKERK AZN remarks that continued allusions are being made to
reaction. Generally speaking, such allusions are made out of personal
motives; but he should very much like to see a real live reactionist, who
would like to repeal what progress has brought us. There may possibly be
people extant who would wish to do so, but as for him, he is not aware
of any reactionary plots against our institutions, or the effects of
science and progress; yet this very project now before the House, which
_he_ considers to be _reaction_, has been most favourably received in
Committee. Should the Netherlands Legislature sanction it, _then_ he
shall have to believe in the existence of reaction. For it is an easy
thing to find evidence of reaction in the project under discussion.
M. van Zinnicq Bergmann has already more or less demonstrated it. He
(M. Heemskerk) will add a few more particulars. Where, the hon. member
asks, lies the origin of Patents? In the cultivation of a free spirit,
and the ennobling of labour; and of these, the right of protection
existed since time immemorial. Deviating from the civil rights, the
Stuarts, through favour or arbitrary motives, granted “privileges;” but
the Free Parliaments saved Patents, that protect inventions. Moreover,
this principle has been adopted in the most freedom-advocating of
constitutions—viz., that of the United States. The same may be said
with regard to France. On the 31st December, 1790, the “Assemblée
Constituante” resolved that the right [of property] in inventions should
be guaranteed, and in this resolution originated the first French
Patent-Law. The Netherlands would be the very first country on earth
(with one exception only) to deviate from the principle of a right of
property in inventions, in a moment, when public opinion, dissenting
thereby from a few economists, everywhere declares in favour of Patents.
He reminds the House of the immense influence inventions have had on
history and society, such as the invention of printing, of the compass,
steam, gas, &c. And would it be fair to withhold from those who promote
progress that protection which is legally due to them; whereas there
is no end of provisions in the code protecting mere material property,
such as the right of inheritance until the twelfth degree, lotteries,
stock gambling, and the like? Government has evidently been aware of
the circumstances standing in the way of the project, as is proved by
page 1 of the Memorial of Explanation; but it shrinks from the logical
consequences. The Patent system is based upon the principle that nobody
should enrich himself by another man’s property. This has also lately
been argued at length in Savornel Lohman’s pamphlet. The hon. member
gives it as his opinion that in this matter an author is in exactly
the same position as an inventor. If Patents be abolished, we shall
logically have to come to repealing Copyright as well. A counterfeited
edition is nothing else than the imitation of an object of industry;
the writer is an author, but the inventor is no less an author. Amongst
others, he refers to a speech from Lamartine (as reporter of a Committee
in the French Legislative Chambers, which consisted of the then most
eminent economists) on the Patent-Law of 1844, which is still in force.
He insists that the justice of his system of maintaining the right
of property is proved beyond a doubt by the ever and again recurring
circumstance of an inventor lacking capital for a practical application
of his lucubrations. Still, he often obtains the requisite means; and
now everybody will be enabled to imitate the result of his thoughts and
labour, and to reap the profits to accrue from the same. He points to
Professor Visvering’s work on practical economy, who also recognised
that, if no exclusive Patents be delivered, still inventors had a
right to a remuneration of some kind. Those who oppose the Patent-Law
contend that an inventor is not entitled to a reward; he admits that
no reward should be expected, but most assuredly the inventor may lay
claim to remuneration for the labour expended on the invention. We are
referred to Switzerland, where no Patents are given. But what of that?
In the first place, most of the industrial Cantons of Switzerland are
clamorous for a Patent-Law; secondly, the Swiss, as a body, equally want
the measure to be put through; and, in the third place, the hon. member
points to the large benefits which, according to Klosterman’s recent
work, Swiss industrials derive from foreign Patent-Laws. It is alleged
that the number of Patents which are being delivered [in Holland] is but
small. But, says M. Heemskerk, foreigners, on the contrary, claim that
the number is large. There exists apprehension of law-suits; but can
that be brought to bear upon the repeal of the Patent-Law? In that case,
landed property would be the least tolerable, as the proverb says—“_Qui
terre a, guerre a._” Moreover, no three law-suits are known to have
sprung up from Patents in this country since the law has been in force.
In Belgium, it is true, much action has of late been taken in order to
do away with Patents; but there, as well as in Prussia, the movement
is rapidly decreasing. The hon. member refers to the “Nederlandsche
Industrieel,” a periodical which, though strenuously in favour of
abolition of Patents, nevertheless mentions in its issues of 14th and
21st of February, and 20th of June, what has lately occurred in this
respect in Germany and elsewhere. In Great Britain also the question has
lately been discussed in Parliament, but the member who moved it did
not even take the votes upon it, but quietly dropped the matter; such
was the impression made upon his mind by the arguments brought forward
[!]. The subject has equally engrossed the attention of the “Société
Economique” of Paris, when eminent economists, amongst whom Wolowski,
declared in favour of Patents. This is mentioned in the _Economistes_ of
June [see page 164]. For all these reasons the hon. member recommends
to the serious consideration of the House that, for the time being at
least, the rash Act be not consummated. Do not throw such a stain upon
your Legislature, he emphatically exclaims. Do not step backward; beware
of relinquishing the protection of any description of property. Do not
cripple the law by ignoring a principle which protects the fruit of human
intellect. Beware of laying violent hands upon property, of whatever kind
it may be. Let us do better than that; let us reject the bill. Persuade
Government, there being no haste whatever, to propose to the Chambers
that the subject be deferred until next Session. At all events, nothing
would be lost by it. Meanwhile Government would be enabled to reconsider
the subject, and to make inquiries abroad as to the state of legislation
on this head. No prejudice would be occasioned by deferring the matter;
for the hon. member expresses his firm belief that a dangerous measure
is about to be adopted with regard to a subject with which the utmost
caution should be observed.

M. DE BRUYN KOPS would not enter into all particulars, the matter having
been treated at length in the sundry documents relating to it; but he
would restrict himself to a refutation of M. Heemskerk’s arguments.
He is in a position to place himself on a very simple point of view.
The law of 1817 is generally disliked, in principle as well as in its
details. It has been admitted that it does not give the inventor any
guarantee, and this on the ground of the issue of some law-suits which
have sprung up from it. So Patents, far from giving a security, hinder
the general public and impede industry. It is a fact worthy of notice,
that the leading industrial organs, such as the Chambers of Commerce and
Factories, the Industrial Society, the Union for Promoting Mechanical
and Manual Industry, and the Nederlandsche Industrieel, unanimously have
declared against Patents; so have a score of industrials. Are these not
facts worth more than a few considerations about a right to special
protection? Add to this the circumstance that in those countries where
Patents do exist difficulties are gradually increasing; as, first of
all, the question arises, whether the invention is really a new one;
and to ascertain this is very often a most arduous task. Then, again,
Patents are being asked for mere trifles. Within a short period, 126
Patents for improving bicycles have been taken out in England. It thus
becomes necessary to make a minute inquiry into the usefulness of the
matter. This has been the cause that in France they have gone to the
other extreme—granting Patents “without guarantee by Government.”
Patents are not consequent upon the recognition of man’s, or inventors’,
rights; they are the remainders of the guild system, and of protection
to national industry in exclusion of foreign. It cannot be a question
of right of property, for, if such were the case, Patents would not be
granted for a fixed term of years. If invention means right of property,
why, then, that arbitrary restriction? Originally the idea may have
been a good one, but in the sequel it has proved a failure. There are
examples of different persons having made the same invention without
having any knowledge of each other. It is consequently becoming almost a
matter of impossibility to ascertain priority. The hon. member says that
all endeavours to bring about a practical result out of an originally
elevated idea have utterly failed; that the guarantee of the right is,
as has been proved by means of the report in England, at best uncertain
and unsatisfactory; and that when the project shall have been made law,
he will rejoice at his country having been foremost in leaving the wrong
track.


SESSION OF TUESDAY, 22ND JUNE.

The President reads an address from the Board of Directors of the Union
to Promote Mechanical and Manual Industry, of Rotterdam, in which they
support the project now pending before the House.

The discussion on the subject is continued.

M. VAN HOUTEN observes, that M. Heemskerk has given the epithets of
“reactionary” and “ruinous” to the measure proposed by Government. By
opposing the project, that deputy did _his_ duty, but at the same time
it more than ever becomes the duty of those who strenuously support it
openly to express their convictions, and to show that they know what
they are about. His opinion is that M. Heemskerk’s arguments have been
tested, and did not stand the test. M. de Bruyn Kops having refrained
from arguing on the ground of theoretical considerations, he (M. Van
Houten) will say a few words in that direction. The main question is
this: Is prohibiting the imitation of an invention lawful, and shall it
or shall it not be upheld? Those who want to let things remain as they
are talk of rights acquired; but on what are these so-called rights
based? Certainly on no very solid basis; for, if a right it be, why is
only a temporary protection granted? A right is permanent, and cannot
be taken away but through expropriation for the common weal, and even
then in consideration of an indemnity only. M. Heemskerk argues two
points: 1st, The inventor has a claim of priority, as the first who
takes possession. 2nd, The imitator enriches himself at the expense of
the inventor. But, says the hon. member, M. Heemskerk loses sight of the
fact that first occupation can only take place of “corporeal” effects;
not of an invention which may be made, and is often being made, by others
at the same time. Besides, he contends that it is not the imitators, but
the public, who enrich themselves and benefit by the invention. He is
of opinion that the Patent system remunerates where no labour has been
expended; whilst claiming Patents has become an industry prejudicial
to the general public. It has been urged to frame a “good” Patent-Law;
but that the hon. member holds to be impossible. Whatever might be its
provisions, monopoly must needs be created by it. And if this is such an
easy matter, why did M. Heemskerk not introduce a bill for a new law? It
is alleged that if everybody is allowed to imitate, the inventor works
for nothing. But how is it with so many gratuitous appointments? Is
that a question of right? Certainly not. As M. Heemskerk, in his speech,
invoked Providence, he should like to know whether it can be supposed
that Providence intends enriching an individual or society at large? On
that ground, we may safely set the public’s right against the inventor’s.
Hereupon the hon. member considers the question from an economical point
of view. In the first place, Patents are useless for such objects as
baffle imitation—like the Krupp guns, for instance; and then objects
emanating from the inventor direct are, as a rule, preferred. As for
petty inventions, he would say that, it being the normal course of social
development that every branch of industry should steadily progress, so
it is the case with them. On that field, everybody is more or less of
an inventor; and with regard to petty inventions, Patents not only are
superfluous, but noxious. M. Heemskerk, it is true, has rather spoken
with a view to great inventions, and the hon. member fancies he has
given evident proof that no harm can be done by abolishing Patent-right
on the latter. It is these great inventions that the public at large
benefits by. He denies M. Heemskerk’s assertion, that in the absence of
Patents no capital would be forthcoming for the practical application
of an invention, for, pending the tests and experiments an inventor
subjects his invention to, no capitalist loans him money. He equally
contests what M. H. said about the logic of repealing Copyright, should
the Patent-Law be put aside, and that, by doing the latter, violent
hands would to a certain extent be laid upon the right of property. The
hon. member thinks that no such comparison can be drawn, as the law
providing for Copyright does by no means prevent anybody from applying
any published work to further development of science. Copyright in no
way interferes with public interests. The member for Gorcum has called
the project a “reactionary” measure. This will frighten neither him nor
us, for it matters little what is _called_ reactionary, but much what
_is_ reactionary. The project is closely connected with the historical
development of society, and the liberation of labour and industry. The
Patent system may be placed upon an equal footing with the exclusive
right to discoveries and other similar privileges of yore. We have given
up all those things. Each and every benefit derived from them becomes
a public one, and so ought every new outlet for trade to be. On these
grounds, the hon. member advocates the removal of those impediments.

M. GODEFROI said:[8] I rise to make some observations on three points
in the speech, containing so much that is valuable, delivered by M.
Heemskerk. These points are, first, the legal basis; secondly, treating
the question on the footing of Copyright; and, thirdly, the reference
to the practice in foreign countries. The speech of the hon. gentleman
who preceded me has made my task with reference to the two first points
peculiarly easy, so that I can content myself in a great measure with
simply referring to it. His confutation of the legal basis, as laid
down by M. Heemskerk, appears to me conclusive. To speak of occupation
in a non-material sense, to say that the _primus occupans_ can maintain
for himself or make over to another, on certain conditions, does seem
to me an untenable position. We must take into consideration what the
preceding speaker has already proved, that occupation from which a claim
can be made, and which one can consider as equivalent to the right of
possession, is inconceivable when the right is of a temporary nature.
But this is not all. How can any one acquire by occupation anything that
another at the same moment may occupy in precisely the same way? How
is it possible that two persons at precisely the same moment (and this
possibility is here not to be denied) can by occupation be possessed
of the same right? I shall say no more on the first point. The second
point, treating the question on the footing of literary property, or
Copyright. I freely admit that, if I were convinced, in case of our
consenting to pass this Bill, we should be pronouncing the abolition of
Copyright, I should recoil from giving my vote in its favour. But the
preceding speaker has, in my opinion, most clearly shown the points of
difference between industrial and literary property. I think I may be
allowed to refer, for further confirmation of the view I am taking, to
the observations of a man held in general consideration, and of especial
weight in this case, inasmuch as he was President of the Commission
appointed by the British Government to inquire into the question of
the retention or abolition of the “Law of Patents.” I refer to Lord
Stanley, who, in a debate in the House of Commons on the 29th May, to
which the hon. member for Gorinchem appealed, expressed himself with
regard to the difference between Patent-right and Copyright in a manner
so clear and distinct that I cannot even now see how I can improve upon
his distinctions. Lord Stanley said, speaking of the distinction: “The
analogy seemed a plausible one, but he thought that, on being looked
into, it would not hold water. The difference was simply this: he did not
rest it on any abstract ground as to the distinction between invention
and discovery, but on the obvious fact that no two men ever did or ever
would write, independently of one another, exactly the same book; each
book, be it good or bad, would stand alone; whereas it might happen that
two or three men, quite independently of one another, would hit upon the
same invention. That alone established a distinction between the two
cases.” And he was perfectly right. While it is impossible for two men,
independently of one another, to write the same book, it is not only
possible, but such a case _has_ occurred, for two men to make the same
discovery—to light upon the same invention. There are examples of this
in the history of French industry. Daguerre and Niepce both pursued that
line of thought from which photography took its rise, and the fact is so
well ascertained that when the French Academy of Sciences had to come to
a decision about assigning a reward for the invention, they divided the
reward between Daguerre and the children of Niepce, then deceased. In a
report made by the present Minister of Public Works in Belgium, M. Jamar,
with reference to property in drawings and models of machinery, the
question of Patents is treated, and I notice in it one highly important
observation applicable to this subject under discussion. It is known—it
appears also in the supplement annexed to the Official Report—that at the
conclusion of the first Great Exhibition in London, the French Commission
brought out a report, in which the renowned politician, Michel Chevalier,
as the result of conclusions drawn from the Exhibition, declared himself
in favour of unconditional abolition of Patents. How did Michel Chevalier
come to that opinion? The report to which I refer informs us, and from it
I extract the following passage: “On seeing at the Exhibition in London,
at a few paces from each other, the same machines, the same tools, new
productions, invented or discovered a thousand miles apart, by men who
arrived at the same result sometimes by different ways, legislators and
magistrates felt themselves bound to ask to what principles of justice
and equity could one of these inventors appeal, that he might obtain a
temporary monopoly rendering abortive the efforts and experiments on the
part of ten other inventors as persevering, as conscientious, and as
intelligent as himself?” When Michel Chevalier, at the London Exhibition,
had seen a few paces from each other the same inventions, presented as
the mental produce of persons who lived thousands of miles apart, and
knew nothing of each other, he might well say that it is impossible to
recognise an exclusive right. But here is another proof that industrial
property and Copyright cannot be put upon the same footing. Moreover,
Patent-right precludes the possibility of the same thought being carried
out, at least for a time, but Copyright does not. Lastly, the third
point—the appeal to the feeling in foreign countries. M. Heemskerk, in
his excellent speech of yesterday, made it to appear that the feeling
on this subject in foreign countries was that the abolition of Patents
was condemned. It is perfectly true that at this moment, in most of the
European States, there still subsist laws for conferring Patents. But
must we thence infer in foreign countries an overwhelming conviction,
that there must be no abolition? I do not think so. There are, in fact,
evidences on this point worth attending to, which I shall proceed to
lay before the House. How is it in France? The law of 1844 is still in
force; but is it approved in France? Certainly not. They are convinced
that the operation of this law has given rise to the most serious
difficulties. This is a fact; and this fact has led to several proposals
for modification which have been pending for some years, and are still
pending, although the French Chambers get through their work more rapidly
than we do. The proposals have been already for several years pending,
because the carrying them out is hindered by the impression which the
valuable report of Michel Chevalier has produced, for every day the doubt
gains force whether it is a question of improving the law, or whether
it is not much rather a question of putting an end to the granting of
Patents. England—it is known that two investigations have taken place
in that country. One in 1851, by the Upper House; the other in 1862, by
a Government Commission, which issued its report in 1865. What was the
result of the investigation in 1851? I find the result in the report
of M. Jamar, which I just now referred to. I will read the following
extract: “The result of this inquiry was remarkable. Lord Granville
had been President of the Commission charged with presenting the Bill,
which, while it modified the Law of Patents, respected or left untouched
the principle. The inquiry so completely modified his convictions, that
he did not hesitate to declare, in the sitting of the House of Lords on
the 1st July, 1851, that he considered the issuing of Patents was an
advantage neither for the inventors nor the public.” So the Commission
of Inquiry, which undertook the task of discovering what amendments
could be made in the law, came to the conclusion that it would be better
to abolish Patents. I should occupy the House too long were I to quote
all that M. Jamar, in his report, borrowed from this Commission of
Inquiry. I will content myself with remarking that, among the witnesses
examined, and on whose testimony the opinions of the Commission were
founded, there were men perfectly well qualified to form a judgment.
They were not only economists, men of science, but also men of business,
practical men: Cubitt, President of the Institution of Civil Engineers;
Brunel, the celebrated engineer; Ricardo, Member of Parliament; Reid,
President of the Committee for carrying out the Great Exhibition of
1851; and other industrial and commercial witnesses, so described in
Jamar’s report. According to the same Belgian report, the testimony of
the English judges was very remarkable. They almost unanimously declared
that it was impossible to apply the law, and that they did not ascribe
this impossibility to the application of the principle in itself. Lord
Granville declared also, in a sitting of the Upper House, on July 1st,
1851, that his opinion was formed from the sentiments of the judges;
and he added: “The only persons who derive any advantage from the Law
of Patents are the lawyers. Except, perhaps, warrants for horses, there
is no subject which gives such an opportunity for roguery as the Law of
Patents.” And one of the law lords of the Upper House, Lord Campbell,
declared, after hearing the speech of Lord Granville, that having
been for nine years legal adviser of the Crown, and having had some
experience in the matter, he coincided perfectly in the opinion of Lord
Granville. The inquiry made by the English Government Commission led
to the same result. In the sitting of the Lower House on May 28 of the
present year, of which I have already spoken, Lord Stanley distinctly
said that he had taken his place in the Commission with the impression
that the business before them was not to abolish Patents, but to take
measures for the amendment of the English law on that subject. During
the inquiry, however, together with those who took part in it he had
come to the conclusion that not only the existing law, but every law on
Patents, would meet with almost insurmountable difficulties, because
these difficulties do not lie in the application, but are inherent in
the principle. M. Heemskerk made it appear yesterday that the result
of the discussion of May 28 in the Lower House was in favour of the
continuance of Patents. I cannot go to such a length in my estimate of
that discussion. A motion was brought forward by Mr. Macfie, [an ex-]
President of the Liverpool Chamber of Commerce, to declare that the time
had now arrived for the abolition of Patents. At the end of the debate
the motion was withdrawn by the proposer. Now, the hon. member for
Gorinchem has drawn the conclusion, from the course pursued, that the
proposer durst not put his motion to the vote, because he was certain
of a minority. The conclusion is somewhat hasty, for nobody can tell—we
at least cannot—what the vote of the Lower House would have been had
the motion been put. Besides, the object of the motion appears in the
speech of the proposer. His chief aim was to invite discussion, “to lay
a general view of the subject before the House,” as he expressed it,
rather than to get a decision. In his speech he also gave it as his wish
that the subject should be again investigated by a Government Commission.
I am of opinion that, from what I have said with reference to England,
the conclusion cannot be drawn that the retention of Patents is there
the unqualified and prevailing determination. Belgium: The last law on
Patents, the law of 1854, is there in operation. I know not if it works
well, and perhaps it would have been worth while for the Government to
get such information. Meanwhile I have a thick volume here before me,
containing a commentary on the law, which I have not read completely
through. It contains 300 pages, but I have run through it, and it
appears to me that the so-called commentary is in very many respects
a criticism on the law, and affords a proof that it by no means works
so extremely well. Last of all, Germany: M. Heemskerk spoke yesterday
of the unanimity of the Germans on the subject of maintaining Patents.
I should not like to admit that unanimity so unreservedly; there are
facts, at least, opposed to that assertion. This fact, for example, which
we have extracted from an article in the _Nieuwe Groninger Courant_,
just sent to us, a proposal for the abolition of Patents made to the
North German Bund; and if this is carried out, no more Patents will be
granted in a great portion of Germany. Another fact: so far back as 1864
the Prussian Government asked the opinion of the Chambers of Commerce
on the question whether or not Patents should be maintained, and of
the 47 there were 31 for the abolition and 16 against it. I scarcely
venture to speak of the economists, otherwise I would appeal to the
German Economic Congress of 1863, which pronounced Patents injurious to
the national welfare. But there is one argument which has more weight
with me than any other. I am thoroughly persuaded that a good law on
Patents is an impossibility. It is, indeed, matter of regret that the
hon. member for Gorinchem, when he was in the Ministry, did not try to
present a good law to the Legislature. He was the right man for it. He
will, however, do me the justice to believe that, when I say this, I do
not mean to censure him; what I do mean is to express my regret. He is
open to no censure, for during the time he held office he attended so
assiduously to his duties that even his most violent political opponents
were compelled to do him honour. But yet it is to be regretted that when
he was Minister he did not propose an amendment of the law of 1817. We
should then have seen whether it was possible or not to have a good
efficient law on Patents. For my part, I have arrived at the conclusion
that it is an impossibility. This is the impression made when one goes
over foreign laws on Patents. There is not a single good one among
them, nor one which does not give rise to difficulties which hitherto
have been found to be insurmountable. But there is a further objection.
According to my notions, there is a formidable stumbling-block which is
directly encountered when one sets to work to frame a law on Patents.
The question at once presents itself, must it not be proved that the
person who demands the privilege has a right to it? When has the claimant
that right? When it is proved that his invention has for its object a
new industrial product, or a new operation, or a new application of an
operation already known, to obtain an industrial result or an industrial
product. The words which I here employ are taken from Art. 2 of the
French Law, which, in my opinion, exactly express the object of the law.
I now ask, if a Government is in a position, in this sense, to examine
the claim of an applicant for a Patent? I shall endeavour to prove that a
Government is not in such a position, and I cannot do better than quote
the words of the author of the report on the French Law of 1844, the
celebrated Philippe Dupin. We know that the French Law does not undertake
the preliminary investigation; and, therefore, as we have been already
reminded by M. de Bruyn Kops, when an announcement is made of articles
for which a Patent is granted in France, the letters S. G. D. G. (_sans
garantie du Gouvernement_) are generally added. Now, hear what Philippe
Dupin says in justification of that principle of French Law, and to
prove the impossibility of a preliminary examination on the part of the
Government: “The preliminary examination would be the establishment of
a censorship in matters of industry. And how could this censorship be
carried out? How, for example, are we to decide that an industrial fact
is new, and that it has not been produced in the course of manufacture
or in the retreat of an obscure and industrious workman? How are we to
foresee and judge the amount of utility in a discovery just made, before
it has been developed, before it has been put to the proof? Who will take
part in this debate? Who will represent the parties interested? Where are
the judges to come from? Who will exercise this jurisdiction by guesswork
in the regions of thought and futurity? Shall it be a clerk turned
into a judge of what he does not understand? Shall we take a practical
man, who is often only a man of routine, to judge a man of theory and
inspiration? Shall we invite philosophers? But if they are philosophers,
they are not to be supposed to know everything, and they have their
preferences, their prejudices, their own sets; and the applicant,
perhaps, contradicts their doctrines, their works, their ideas. These
are incontestable impossibilities. It has been said, with as much wit
as reason, in such matters the only suitable proceeding is experience,
the only competent judge the public.” So much for experience. But, Mr.
President, if a Government is not in a position to decide whether the
claimant of a Patent has a right to it, can it be sanctioned in granting
a privilege blindfold which establishes a temporary monopoly? According
to my view, this is a formidable, almost insurmountable, stumbling-block,
which, in my deliberate opinion, will always stand in the way of a good
and efficient Law of Patents. I, therefore, am of opinion that no other
satisfactory course is open to us than to abolish Patents.

M. VAN VOORTHUYSEN will not enter into many details, the subject having
been considered both from a juridical and an economical point of view.
He will, therefore, restrict himself to a few remarks on M. Heemskerk’s
speech. The hon. member acknowledges the satisfaction the project gives
him; it gratifies the feelings to which he has given vent a great many
times. It has been said that the measure was a step backward, as Patents
have taken the place of exclusive privileges to guilds. At the time the
Patent-right was assuredly an improvement on the then existing system;
but we have been progressing so much since then that at present nothing
short of abolition will satisfy the wants of progress. He also refers
to the conclusion arrived at by Lord Stanley, which point M. Heemskerk
has left unnoticed—viz., 1st, that it is impossible to reward all who
deserve to be rewarded; 2nd, that it is impossible to reward adequately
to the service rendered to society at large; 3rd, that it is impossible
to hold third parties harmless from damage. And, in fact, the alleged
instance of the Daguerre prize having been divided with another who
equally proved his claim to the invention, speaks for itself. It is
doubtful who was the first inventor of the steam-engine; there are
several, at least, who claim the invention as their own. There is another
point he feels bound to refer to. M. Heemskerk has said that abolishing
Patents constitutes an attack upon the right of property, and that deputy
cautions against a first step, perhaps to be followed up by others. This
being a very serious inculpation, the hon. member has asked the opinion
of an eminent jurist, whom he will not name as yet, whose authority M.
Heemskerk is not likely to deny, and who is in many respects congenial
with that esteemed deputy. The hon. member reads that opinion of one of
the foremost opponents of Patent-right, who calls it an obnoxious and
intolerable monopoly. And who is that clever jurist? It is M. Wintgens,
who very likely owed to his extraordinary acquirements in law matters
his appointment to the Department of Justice in the Heemskerk van Zuylen
Ministry.

M. FOCK (Secretary of State for Home Affairs) will not have much to say,
after all which has been argued in yesterday’s and to-day’s Session, in
defence of the project. Nevertheless he will indulge in a few remarks
on the final report. With a view to the same, M. Heemskerk submits the
maintenance of Patents for inventions, but the repeal of those “of
admission.” But the Minister calls the attention of the House to the
circumstance that the Patents for inventions which are being granted may
aggregate to ten a year or thereabout. What should remain for us to keep?
Or else agents here will apply for Patents on foreign inventions, so that
“Patents of admission” will re-appear under a different denomination.
M. Godefroi has already pointed to instances abroad, and the Minister
can but add that, despite M. Heemskerk’s assertion to the contrary, the
Prussian Government is by no means favourably disposed to the Patent-Law.
In December, 1868, Count von Bismarck addressed a message to the North
German Confederation, embodying the opinion of the Prussian Government
in favour of repeal, and even hinting that Prussia would not mind
taking the lead in the matter.[9] After entering into a few more details
concerning the final report, the Minister once more demonstrates that
Patents are great impediments to industry and free-trade, and that it is
in the public’s interest that they should be abolished. The Netherlands,
having once been foremost in doing away with the tax on knowledge, must
not now shrink from conferring entire freedom on the field of industry.
That is no reaction. Is it reaction to break off with an intolerable
state of things? No; it is progress, and leads to free development. The
Minister concludes with a citation from Michel Chevalier, and declines to
take M. Heemskerk’s hint of deferring the discussion on the project.

M. HEEMSKERK AZN replies. He tenders thanks for the urbanity observed
throughout the discussion. But it is undeniable that his opinion agrees
with the existing right and the prevalent ideas in Europe and America.
Of course, if revocation is intended, improvement of the law has to be
given up. In reply to the Minister, he has no doubt but that the desire
for revocation originated in Prussia, but he has said that in Germany the
tide has turned in favour of Patents, on the strength of the “Deutsche
Industrie Zeitung” and Klosterman’s recent work. The revocation of the
Patent-Law may have been contemplated, but the Prussian Government is
not now disposed to have the idea carried out. He asks but for what the
English equally asked for—_i.e._, a renewed inquiry. What, after all, is
foreign experience to the exercise of law in the Netherlands? How does
the project tally with the establishment of a new division of industry
in the Department for Internal Affairs, the chief occupation of which is
the granting of Patents? He will not argue with the Minister on general
remarks, but merely on the one relating to the abolition of newspaper
stamps. Why has that tax been repealed? If henceforth a larger quantity
of paper be covered with print, the tax has most likely been done away
with to promote the diffusion of general knowledge. He supposes, however,
the Minister will agree with Cicero, who says that fame acquired by
means of deeds which are not useful is but vanity. The stamp duty has
been repealed in order to be useful. And in the present case, will the
Minister deny all benefits to him who does his utmost, so as to be
useful? He replies also to the several members who have made speeches;
he contradicts M. de Bruyn Kops about a general disposition supposed to
exist in France towards revocation of Patent-Laws. Michel Chevalier only
has changed his mind, but there is no opinion prevailing against Patents.
Quite recently both Joseph Garnier and Wolowski have refuted Chevalier’s
arguments.

The hon. member further insists upon _his_ interpretation of the
Parliamentary debates in England, and names several instances of
inventors having acquired wealth. He does not admit that there is a
difference between Patent-right and Copyright; imitation of articles of
fabrication is, and will remain, as immoral as it is unfair. He shrinks
from touching the legal side of the question, but asks whether, because
of the Patent-right being restricted to a fixed time, the conclusion must
needs be drawn that absolutely no right should exist, and that there
should be no plea in equity whatever for an inventor to get rewarded
for his labours? Does the abstract question of occupation of immaterial
things cripple that hypothesis in any way? He considers it from a more
general and social point of view, and vindicates his assertion that an
inventor is entitled to a certain amount of protection for his work, by
which, at all events, he renders a service to society; that Patents are
incitements to many useful inventions and to industry, which is equally
M. de Bruyn Kops’ opinion, as stated in his work on political economy. He
has been asked why, when in the Ministry, he did not introduce a Patent
Reform Law. In the first place, he begs to observe that much was to be
done then, and besides, considering the smallness of our country, he
indulged in the anticipation that the idea of an international agreement
might gradually have gained ground. Should he, however, have lived
longer (politically speaking), he _would_ most likely have introduced a
Bill for remodelling the Patent-Law. As for M. Wintgen’s opinion, it is
almost superfluous to say that one is not bound to have in every respect
homogeneous ideas with one’s political friends. In reply to the question
why, as a member of the House, he does not make a proposal, he accepts
the invitation, and will in September next be prepared to take, as a
member of the House, the initiative of presenting a Bill for Reforming
the Patent-Law, provided the project now pending be no longer discussed.

M. VAN ZINNICK BERGMANN replies, and maintains his opinion about the
justice of the Patent-right.

M. DE BRUYN KOPS refutes M. Heemskerk’s reply, and demonstrates, by
means of fresh examples, that the Patent-right is intolerable and most
obnoxious. He considers the question now merely economically; MM. van
Houten and Godefroi having so ably discussed the legal points. The
large benefits acquired by a few are, as taken from his point of view,
prejudicial to the public at large, and against these few advantages
there are great damages, as large capitals dwindle away in the chase for
the snare of Patents. M. Heemskerk himself favours the revocation of
Patents on the right “of admission.” What is left after that? Nothing but
the Patents of invention. Why not try entire freedom and removal of all
impediments?

M. GODEFROI will add one word more with reference to M. Heemskerk’s
readiness in accepting the challenge, of framing a new project of law,
and he must say that, whatever be the nature of such proposal, it can
hardly be expected to satisfy those who condemn the principles of
Patent-Law. But the orator who is so well posted must certainly have
framed already the main points from which the project would have to
be formed. By stating and explaining those points, he would have done
more service to the House than by mere opposition to those who favour
abolition. The hon. member repeats the important query, whether Patents
should be granted without previously inquiring into the merits of the
case; and then Government would have to give its opinion just as well on
an improved chignon as on an improved steam-engine.

M. GEFKEN gives his motives for voting in favour of the project. He
says, where there is a right of property, it must be permanent, and even
transferable to the heirs; but a guarantee for a few years would not do.
He consequently does not recognise the right of property, and merely
considers the question with a view to usefulness; and, as far as that
goes, his experience in administrative and juridical offices has taught
him that Patents are not actually useful, and, on the contrary, lead
to speculation and impede the development of many a useful concern. He
favours free competition.

M. VAN VOORTHUYSEN will not revert to M. Bergmann’s remark about his
being accustomed to recapitulate the debates, but denies having intended
to force upon him the authority of M. Wintgen’s opinion. Such is not the
case; but the fact of the opinions of two such jurists as MM. Godefroi
and Wintgen agreeing has set his mind at rest as far as legal opinion is
concerned.

M. HEEMSKERK AZN replies to M. Godefroi, and does not see why he should
just now go and sketch his project. Give him time and opportunity, and he
will introduce a Bill, provided this project be deferred; and, in fact,
what are they making such haste for?

Minister FOCK maintains his sayings about the Prussian Government
favouring revocation, and further explains that the new division in
his department has no connexion with Patents, but was made so as to
concentrate all matters referring to industry. As for the right of
property in inventions, he would merely add that, according to our
legislation, Patents are but favours, which may be granted or not, as the
case may be.

Hereupon the discussion is closed.

With reference to Art. 1, M. Lenting asks, why the date on which the new
law has to take effect should be fixed for the 1st January next. He would
prefer that the words be, “After the day of the publication of the law;”
then no new Patents would be granted, those already applied for only
excepted.

The Minister inserts the amendment, after which Arts. 1 and 2 are passed.

The project is then put to the vote, and passes the House by 49 ayes
against 8 noes.

Against it voted MM. Bichon, Blussé, Vader, Hofmann, Heemskerk Azn, Van
Wassenaer, and Van Zinnick Bergmann.

[8] For this translation I am indebted to the Foreign-office, to whose
reports I have been politely allowed access.

[9] This admirable document is prefixed, see page 185.




FROM THE DUTCH GOVERNMENT MEMORIAL.


The project of law, which is accompanied by an extensive memorial of
explanation, contains the following stipulations:—

    _Article 1._—From and after the 1st of January, 1870, no
    fresh Patents for inventions and improvements, or the first
    introduction of objects of art and industry, shall be granted,
    those only excepted for which application shall have been made
    previous to that date.

    _Article 2._—The term for Patents formerly granted or
    deliverable within the provisions of Article 1 of this law may
    be extended in accordance with the law of 25th January, 1817.
    (Vide “_Staatsblad_,” No. 6.)

The memorial says, _inter alia_:—

“In order to let Netherlands industry and Netherlands people reap the
benefit of the bulk of improvements in industry, the best course to take
appears to be the repeal of the Patent-Law.

“The first requisite of a reform of the existing legislation on Patents
would be to more completely guarantee their rights to inventors, they
being by no means sufficiently protected by the provisions of the law now
in force.

“Considering, however, the consequences of any kind of Patent-Law, the
means that are to be employed and the expenses to be incurred, so as to
render all parties interested quite familiar with the Patents granted;
the fact that, in consequence of the development of industry, the number
of Patents is increasing, the result of which is more and more to burden
the exercise of the sundry branches of industry with a larger portion
of obstructive privileges, besides the abuses and wrong practice to
which they lead; in one word, the price which the public have to pay,
compared with the very few inventors, whose advantage is even at best
uncertain—considering all these points, there can hardly be a doubt as
to the choice the Netherlands ought to make, placed as they are between
the dark path leading to more obnoxious privileges and the highway where
freedom of movement prevails.”




We subjoin the following, with which we have been favoured, on the same
subject:—

The project of law to repeal the Act of 1817 for granting exclusive
rights on inventions and improvements of objects of art and industry,
has given general satisfaction in four Committees of the House, and many
have received it enthusiastically. By introducing this Bill, Government
has satisfied a desire which of late was frequently manifested by members
of the House. The memorial of explanation, with its vouchers, gives
full particulars of the objections raised against the Patent system.
Most members, in fact, simply gave their adhesion in substance, without
considering it necessary to “motivate” their opinion.

A few Members of one of the Committees did not agree with absolute
repeal, and even held such a measure to be at variance with justice and
equity; they recognised the law of 1817 to be defective and in many
cases impracticable; they granted that when a reform might be arrived at
“Patents of admission” ought not to remain in force; but they did not
see why, on account of the insufficiency of the law in this country,
“Patents for invention” should be abolished as well. There are a good
many industrial inventions which cost the originator vast mental labour,
sometimes even heavy pecuniary sacrifice. By means of his invention
he renders society a service which entitles him to enjoy, for a fixed
period at least, the exclusive benefit of bringing it into operation.
Should this benefit be denied him, it would be but fair that the State
should give him a reward; this, however, is subject to difficulties of a
peculiar nature.

The opinion that the repeal of the law would leave intellectual property
altogether unprotected, may be refuted by the fact that the principle of
intellectual property cannot possibly form the basis for a Patent-Law.
Although it was emphatically proclaimed in the French Legislature of the
first years subsequent to the Revolution of 1789, it will not stand the
test of sound criticism. Could right of property be admitted in this
case, it ought to be permanent, and not temporary. Yet no Legislature
ever dared to extend the so-called right, even for the inventor’s
lifetime; the terms were generally ten, twelve, fifteen, and, at most,
twenty years. Another circumstance, which is in downright contradiction
with the notion of right of property, is the fact that everywhere Patents
are granted only on payment of a certain sum.

If Patents are to be defended at all, better try to do it on a principle
of utility. Some appearances are in favour of the plea that anticipation
of reward and pecuniary benefit originates useful inventions; but
pecuniary experience has taught that although every now and then this may
be the case, still the very existence of a strict Patent-Law, is, on the
whole, a decided hindrance to industry; that the inventor’s benefit from
his Patent is, in most instances, but doubtful, whereas by doing away
with this artificial encouragement, inventions will not, on this account,
remain in the bud undeveloped.

A strict Patent-Law is subject to strange drawbacks, which have been
chiefly demonstrated by the inquiry in England; whilst in Holland the
well-known decision of the Supreme Court of 1846 has well-nigh vitiated
it.

Under the circumstances, no choice was left our Government but between
a stricter law than before and complete freedom. Very justly it has
declared in favour of the latter, and, as it states, chiefly Switzerland
in its eye, where very many branches of industry are in a most
flourishing condition, ascribable, in part at least, to the very absence
of Patent-Laws, with their escort of drawbacks and law-suits. There the
manufacturer goes upon his own errand, avails himself of inventions made
by others, and, if he cannot at once get at the bottom of the same, tries
to arrive at them through his own exertions and his own ponderings.

The step taken by Government deserves the more approbation, inasmuch as
no legislation can sufficiently guarantee to the real inventor _that_
exclusive right which is considered a reward for the service rendered to
society. Not seldom it happens that the inventor is a scholar, who makes
the fruit of his labours public, leaving to others the deriving pecuniary
benefits from it.

Some persons, adverse to Patent-Laws, cannot yet make up their minds as
to the new system being in accordance with morality, and perhaps be an
encouraging of the dishonesty which lies in the appropriation of another
man’s invention, thereby reminding the Netherlander of Güttenburg. To
this we may bring forward the argument that, as far as the deed ascribed
to that German falls within the limits of theft, or of violation of
contract between master and servant, nobody will defend it; but in the
circumstance that Güttenburg, having once mastered the art, applied it to
bring it into operation, and by exerting his intellect, raised it to a
much higher pitch of perfection, there lies nothing dishonest. If these
proceedings be incriminated, then the principle ought to be transferred
to another field—that of trade. Then the merchant who takes advantage of
a new outlet or a new branch of commerce inaugurated by another, ought to
be reprobated; but if so, farewell to all competition—nay, to the very
principle of free-trade.

A few of the supporters of the Patent-Law ask whether Copyright does
not rest upon the same basis as the exclusive right to inventions, and
whether the new law will not be followed in its wake by the ignoring
of literary property. But against a few similarities we have a material
difference in substance.

If not all, yet most literary productions bear such a marked stamp of
individuality, that intellectual property cannot be contested. However it
may be, the different subjects have each their own laws, and both authors
and publishers we quite leave out of the question.


OPINION OF THE LEADING JOURNAL OF HOLLAND, THE “ALGEMEEN HANDELSBLAD.”

In the history of the Netherlands economy, the 22nd June, 1869, will be
long remembered. Whatever shall be the decision of the First Chamber,
the fact of the Law [Bill] having passed the Second Chamber by 48 yeas
against 8 noes is a highly gratifying occurrence.

The chief feature in the opposition on the part of the Conservatives was
the able speeches made by their leader, M. Heemskerk, in order to prove
that invention confers a right of property. Without going into the merits
of the case, we cannot help recording that, in the opinion of those that
side with M. H., it must be a suggestive circumstance that, despite
all the earnest pleading of the honourable gentleman, 48 out of 57
representatives, of men of the highest moral and intellectual standing,
did vote for abolition, and still did not intend despoiling anybody of
his own.

Invention is the effusion of thought, and just as thought cannot but be
free, so invention must be the same.

We hope that the Netherlands will not long remain alone in this instance.
At any rate, we may be proud of the overwhelming majority of men able to
understand the real means of progress.


EXTRACT FROM AN OBLIGING PRIVATE LETTER.

                                                 Amsterdam, June 28, 1869.

... In some respects, the rather powerful arguments of the members
who were favourable to the continuance of the system of Patents—and
who contended that an inventor, the same as an author, has a right
to protection of his individual mind-work—were defeated, principally
by the pretty general opinion of the majority that it would be
next to impossible to adopt any new Law on Patents efficient to
protect one inventor without at the same time injuring not only some
brother-inventor, but also the public at large.


FROM THE “FRANKFORT JOURNAL,” JULY 21.

The abolition of the Patent-Laws in the Netherlands will, it is evident,
not remain without influence on the decision which other European
States, and in particular those of Germany, will form in regard to
these laws. Of the two countries, one of which is in possession of the
sources of the Rhine, and the other of its mouths—the former the most
industrious country in the world, never had a Patent-Law; the latter,
eminent for its foresight, dispenses with those laws. Through this act
are intensified the unsatisfactory circumstances which the existence of
these laws produces, and the want of confidence which is felt in their
advantage to inventors and the public. The number of their defenders is
constantly declining. People are daily more and more becoming convinced
that these laws belong to the same category as the Usury-Laws and the
Corn-Laws, and other similar excrescences introduced by bureaucracy, and
that they should be thrown into the lumber-room of laws which effect the
very reverse of what they profess to do. They stop progress. Inventions
of importance can always be made useful to the inventors without
Patent-Laws. Great inventors might perhaps be indemnified by Government
on behalf of a nation, but as for the innumerable herd of small inventors
who prosecute inventing as a trade, they cause the consumer severe injury
instead of benefiting him. Since Patents for inventions in Germany do not
extend to protection against dealing in foreign articles patented here,
we may consider the abolition of Patents in the Netherlands a reason why
Patent monomaniacs should now ask themselves whether the cost is likely
hereafter to yield a good return.




PROCEEDINGS IN LIVERPOOL CHAMBER OF COMMERCE.


At a meeting of the Council on July, 1869, E. K. MUSPRATT, Esq., rose and
spoke to the following effect:—

Mr. President,—I rise to call your attention to the late debate on the
Patent-Law. This Chamber has frequently expressed its dissatisfaction
with the working of the present law, and after the issue of the Report
of the Royal Commission on the subject, endeavoured to bring about an
inquiry into the policy of granting Patents for inventions. I cannot
but think the time has now arrived for further action in this matter.
The late debate upon the motion of Mr. Macfie has re-awakened public
interest in the subject, and it is gratifying to note, both in the
debate itself and the subsequent discussion in the newspapers, that the
formerly very prevalent idea of a natural property in inventions has been
tacitly abandoned. In some of the arguments used the old fallacy seems
to lurk, for the _Pall Mall Gazette_, in a very able article, says: “It
is plausible to say that if there were no property in invention every
one would get the benefit of all inventions; but this appears to us to
have some analogy to the notion that if there were no property in land
every one would get the benefit of the crops.” There is, however, a
very great difference, because an invention cannot possibly yield all
the benefits which society can derive from it until it becomes public
property; whereas all experience proves that land, in order to yield
the greatest results, must become and remain individual property. Let
us discard, therefore, all comparison of property in invention with
other property, and discuss the subject as one of expediency. Is it the
interest of the community at large that Patents should be granted for
inventions? I am not prepared to say whether or not inventors should
be remunerated by the State; but, after mature consideration, I have
come to the conclusion that, in the interests of the nation and of all
engaged in industry, Patents for invention should be abolished. A Patent
is a monopoly, a patentee a monopolist. When the Protectionist system
was in vogue, Patents which were in full harmony with that system could
be justified; but in these days of Free-trade all monopolies which act
in restraint of trade should be abolished. Some of the arguments used
in support of the system of Protection to inventors by granting to
them a monopoly of manufacture are, to my mind, very similar to those
used in former days in support of other monopolies. Before the repeal
of the Navigation Laws, it was said that without them our marine would
be destroyed, and no more ships would be built, because there would be
no inducement to build them. Without Patents, say the defenders of the
system, there will be no inventions, because there will be no special
inducement to make them. We maintain, however, that under a freer system
invention would be stimulated, and not restrained. As was well pointed
out by Sir R. Palmer in his able speech, “Bounties and premiums might be
adapted to a rude state of the arts and an early stage in the progress
of commerce; but when a nation had reached so high a degree of progress
in all ingenious arts and discoveries, and in trade and commerce, as we
had, he thought that in this department, as well as in others, the system
of bounties and premiums was much more likely to be mischievous than
useful.” He then very clearly showed how the Patent system worked; how,
in the place of securing the reward to great and meritorious inventions,
it gave a monopoly to the first claimer of those minor improvements
which he classed as unmeritorious Patents, and which improvements would
necessarily be made in the ordinary progress of manufacture. As an
example of this, I may mention the manufacture of artificial manures. The
modern history of manures dates from the publication of Liebig’s book
in 1840, in which the conversion of insoluble into soluble phosphate
of lime is recommended. This suggestion has been perhaps more fruitful
in results than any other of modern times, and forms the basis of the
enormous manufacture of super-phosphate and other artificial manures. It
was patented in 1842, not by Liebig, but by Mr. Lawes; and since that
period various improvements in the manufacture have been patented, but
the real inventor has never been rewarded. There can be no doubt that
without a system of Patents all of the subsequent minor improvements
would have been made in the ordinary course of trade; and one of the
main objects of the Patent-Law, to secure a reward to the inventor, has,
in this instance, as in many others, failed of accomplishment. Then, on
the other hand, all these minor improvements, being patented, stand in
the way of further progress, and if the manufacturer wishes to adopt a
new process, or to improve his manufacture, he must do it at the peril
of litigation with some unknown person, who at some time or other has
thought fit to claim for himself a monopoly. No matter whether his
claim be good or bad, it stands in the way of improvement until it is
either disclaimed by the patentee himself or pronounced invalid in a
court of law. As an example of how, under the present system, a patentee
may create a virtual monopoly and embarrass manufacturers even when
his claims are, according to his own showing, to a very great extent
invalid, permit me to draw your attention to a Patent, No. 12,867, A.D.
1849, for compressing peat for fuel, making gas, &c., and with which I
unfortunately became acquainted, because the patentee, under another
Patent (connected, however, with the first), endeavoured to make my
firm pay him for the use of a substance in the manufacture of sulphuric
acid. Now, the patentee, Mr. F. C Hills, finding, I presume, that in its
first state his Patent was invalid, filed what is technically termed a
disclaimer, in 1853; and on comparing the original specification, which
is very long and consists of about 230 lines, I find at least one-half
is disclaimed. This Patent secured to Mr. Hills the monopoly of the
purification of gas by means of oxide of iron; and although, owing to
the exertion of the Liverpool Gas Company, he failed to have it renewed
at the expiration of fourteen years, by a subsequent Patent for the use
of the said oxide (after it has been used in the purification of gas)
in the manufacture of sulphuric acid, he continues virtually to enjoy
that monopoly, and to prevent chemical manufacturers having access to
what, under certain circumstances, may be a cheap source of sulphur. And
this I would wish you to bear in mind, although the second Patent is
undoubtedly invalid. It would detain you too long were I to enter into
full detail on the subject, but I may mention that our firm used some
2,000 or 3,000 tons of this gas refuse from the Liverpool Gas Works,
when pyrites was high in price; and it was only because of the annoyance
and waste of time which a law-suit would have cost that we relinquished
its use in our manufacture when the price of pyrites fell. But this case
is but a sample, and I have no doubt every manufacturer has experienced
similar loss and inconvenience from the action of the Patent-Law. When
we consider that there are at the present moment 11,369 Patents in
force, most of them as invalid as that to which I have referred, and
acting as a restriction on manufacturers, we may form some idea of
what the community at large has to pay for the luxury of a Patent-Law.
But it may be said these objections are due to the imperfections and
mal-administration of the Patent-Law. I would refer you, then, to
the Report of the Royal Commission, which, in conclusion, says that
“these inconveniences are, in their belief, inherent in the nature of a
Patent-Law, and must be considered as the price which the public consents
to pay for the existence of such a law.” There is, however, another
aspect of the question which must not be lost sight of. The Lower House
of the States-General of Holland has, by a large majority, voted the
abolition of Patents. In Switzerland they don’t exist; and in Prussia,
owing to a very strict preliminary examination, faithfully carried out,
they are very few in number. We in this country have to compete with
the manufacturers of these countries; and is it fair, I would ask, that
we should be thus weighted in the race? I beg to move that a petition
be prepared for presentation to the House of Commons, praying for the
appointment of a Committee to inquire into the policy of granting Patents
for invention.

(The motion was unanimously adopted.)




CORRESPONDENCE.


The subjoined letters, with which I am favoured, will be read with
interest and advantage:—




FROM SIR WILLIAM ARMSTRONG, C.B.


As to the cost of the system to the public, I don’t see how it could be
calculated, for it consists not merely of the licence fees, but also of
the loss resulting from the stamping out of competition, which would
cheapen production and, in most cases, lead to improvement. My great
objection to our indiscriminate Patent system is, that it is scarcely
possible to strike out in any new direction without coming in contact
with Patents for schemes so crudely developed as to receive little or no
acceptance from the public, but which, nevertheless, block the road to
really practical improvement.

Nothing, I think, can be more monstrous than that so grave a matter as
a monopoly should be granted to any person for anything without inquiry
either as to private merit or public policy—in fact, merely for the
asking and the paying. Amongst other evils of this indiscriminate system
is that the majority of Patents granted are bad, and yet such is the
dread of litigation, that people submit to a Patent they know to be bad
rather than involve themselves in the trouble and expense of resisting
it. So that a bad Patent, in general, answers just as well as a good one.

One of the most common arguments in favour of Patents is, that they are
necessary to protect the poor inventor, but it is manufacturers and
capitalists, and not working men, who make great profits by Patents,
and that, too, in a degree which has no reference either to the merit
of the inventor or the importance of the invention. One rarely hears of
a working man making a good thing of a Patent. If he hits upon a good
idea he has seldom the means of developing it to a marketable form, and
he generally sells it for a trifle to a capitalist, who brings it to
maturity and profits by it. He could sell his idea just as well without
any Patent-Law.

May 13, 1869.




FROM ANOTHER HIGH PRACTICAL AUTHORITY, LIKEWISE A NOTABLE INVENTOR.


I would not for one moment deny that instances could be named in which
the absence of a Patent-Law might have proved a hardship to a real
inventor, but I feel quite satisfied in my own mind that whatever
may hitherto have been the case, the time has now fully arrived when
infinitely less injustice would, upon the whole, be occasioned by the
absence of all Patent-Laws than by the best Patent-Law that could be
devised. All Patents for inventions must be considered as founded upon
expediency and not upon the idea of any inherent right which the inventor
possesses beyond the right of using his invention, or keeping the
secret of it to himself. A community may consider it to their advantage
to protect inventions by means of Patent-Laws, but a man can have no
abstract or natural right to the exclusive benefits of his invention, for
such an idea would imply that nobody else could have produced it. The
question is, therefore, entirely one of expediency, but not one of right.
Again, a very common argument used in support of a Patent-Law is that
an inventor is as much entitled to an exclusive right to his invention
as an author is to the produce of his pen, but there is really very
little resemblance between the two cases, and I believe it would be very
inexpedient to utterly abolish Copyright. “Paradise Lost” would never
have been written but for Milton; but with the utmost respect for Bell,
Fulton, and Stephenson, who would pretend to believe that without them we
should still have to be dependent upon the wind for our movements at sea,
and the common road ashore? A man who writes a book does not interfere
with me in the slightest degree, but the inventor, or more probably the
so-called inventor, backed by the Patent-Law, may most unjustly involve
me in much trouble and expense. I should be very glad to see a good round
sum set apart by Government for the purpose of being awarded to real
inventors by competent and impartial authority. Then the poor inventor
might have some chance. You will certainly, in my opinion, have done a
good turn to this country if you can only get every vestige of Patent-Law
swept from the statute-book, and with my best wishes for the success of
your motion, I am, &c.




FROM ANDREW JOHNSTON, ESQ., M.P.


                                                           7th July, 1869.

MY DEAR SIR,

I am glad to hear that you intend printing the results of your inquiries
as to the operation of the Patent-Laws, as the conclusions at which you
have arrived tally entirely with my own experience as a manufacturer.

I had no opportunity of speaking in the recent debate on your motion, and
will therefore put down one or two points which have specially presented
themselves to my attention.

I am not biased, I believe, by self-interest, as the business with which
I am connected has profited to a considerable extent by the purchase of
patented inventions; but it is my firm conviction that the commonwealth
would benefit by the refusal of the State in future to grant Patents.

Nothing can be more superficial than the objection that the intelligent
working man benefits by the present system. For one such who really
benefits by his invention, ten sell theirs for the merest fraction of its
value; ten others who may get a fair price are led, by the possession
of the capital sum so obtained, to give up regular employment, and
generally “muddle away” all the money in seeking to “invent” afresh,
while the remaining seventy-nine reap nothing by their invention but
disappointment, privation, and misery.

Abolish Patents, and these men would stick to regular work. They would
choose the service of employers who had a name for liberally rewarding
their workmen for ingenious and profitable inventions, and also for the
insight necessary to decide whether inventions were so or not. Employers
would vie with one another in getting such a name, and the whole tone and
level of the artisans would be perceptibly raised, while useful invention
would proceed faster than at present, because the certainty of moderate
rewards would stimulate men more than the remote chance of large ones.

No doubt you want facts rather than opinions. I can testify to this
much as to another branch of the subject: when there is an infringement
of a Patent, or supposed infringement, and an appeal to the law is
in prospect, it never occurs to either party to consider whether the
Patent-rights in question are good, bad, or indifferent. It is too well
known that the longest purse will win, and that whichever party is
prepared to spend most money will defeat and probably ruin the other.

Make any use you like of these notes.

                            Yours, very truly,

                                                          ANDREW JOHNSTON.

R. A. Macfie, Esq., M.P.




ON THE DISTINCTION BETWEEN COPYRIGHT AND PATENT-RIGHT.


The following is reproduced under a conviction formed by hearing, in the
recent debate, so much stress laid on the resemblance of Patent-right to
Copyright, that superficial views are very generally held and require to
be met:—

_Extract from “The Patent Question under Free-Trade,” 1863._

We may now, in order to clear away what has been to some a
stumbling-block—the argument from analogy founded on the case of literary
property—notice certain distinctions between the subjects respectively
of Patent-right and Copyright. Those things that belong to the province
of Patent-right are in their nature capable of being independently
discovered or originated, in the same identical form, by a plurality of
persons. Of this character are the principles of mechanism, processes of
manufacture, and forms or methods accordant thereto. Such, indeed, are,
as a rule, actually discovered or invented by several persons, and this
very often almost simultaneously. It is otherwise with things that belong
to the province of Copyright—literary and artistic combinations, books,
pictures, musical compositions, involving any degree of elaboration.
Such, at no interval of time, have ever been produced by even one other
person except a copyist.

This ground for differential treatment is connected with others. In
particular, the literary or artistic compositions of any person are
perfectly distinguishable from all those of every other. Hence the
Copyright privilege is conceded in the absolute certainty that the
grantee is their true and only originator, or first producer or creator.
No second person can come forward, after the Copyright privilege is
secured to an author or artist, and allege that the poem or picture he
composed also. To infringe Copyright means to slavishly or meanly copy
the work of another. To constitute infringement it is not sufficient
that the second person’s book has the same subject and the same purpose
in view, and is written in the same spirit as the first; the “matter”
must be the same, and in the same form. And so with pictures, the
subjects may be the same; the ideas may show great correspondence.
_Exactness_ of “matter” and of arrangement is everything. Patent-right,
on the contrary, may be infringed where there is no such exactness, and
no copying whatever, but complete originality. Disregarding form, it
forbids the embodiment and use of _ideas_, even of ideas entirely one’s
own.

We have thus the inconsistency, or paradox, that the exclusive privileges
which have for their province only material objects—which engage only our
bodily frame and those senses merely that have their exercise on matter
apart from mind (and this is all that patentable inventions do)—carry
prohibition into the region of ideas; while those other exclusive
privileges, in whose province matter serves only as a vehicle or excitant
of things immaterial—conceptions, memories, tastes, emotions—and as an
instrument to set the mind a-working and affect the higher senses and
faculties—make no such incursions, keeping entirely clear of interference
with any man’s practical use of ideas.

Literary and artistic Copyright has for its province visible, tangible
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.

The first point to be borne in mind with reference to the Patent-Laws
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._


Those who doubt whether there are subjects upon which no conclusion is
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.

We readily grant the second clause of the statement. The number of great
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.

All countries, with _the single exception of Switzerland_, recognise by
their existing laws the necessity of _Patent protection_; and this case
of Switzerland is particularly brought forward by those opposed to the
Patent movement. The Commission which was appointed of Swiss experts (and
which said that Patent protection is unnecessary and tends to nothing
good) was impartial enough to avow that the particular advantages which
Switzerland draws from existing circumstances arise from the fact that
in all the adjoining countries the protection of Patents does exist,
but in Switzerland alone not so. Swiss industry, which is exceedingly
small, is placed in the position of imitating all foreign Patents which
find a market in Switzerland, and getting the benefit of the discoveries
made under the protection of foreign Patents. Switzerland is just in the
position of a man who keeps no cats because he can use his neighbours’.


HOLLAND.

I have before me a series of valuable illustrative documents printed by
the Government of the Netherlands, which are too long to introduce here.
The movement for abolishing Patents in that country, already referred to
on pages 196-230, was consummated by a striking majority, in the First
Chamber, of no less than 29 to 1; the abolition to take effect from 1st
January next, existing rights, of course, to be respected.




ON PERPETUITY OF PATENT-RIGHT.


The following observations, abridged from a review, by M. Aug. Boudron,
of M. le Hardy de Beaulieu’s _La Propriété et sa Rente_, are from the
_Journal des Economistes_ for May:—

The author assimilates the inventor’s privileges to proprietorship of a
field. Nevertheless there is a fundamental difference between the two
kinds of property. Independently of State privileges, the originator of a
discovery may use it as his own, and even to the exclusion of all others,
provided he keep it secret, so that he shall have no competitor to
encounter; whereas the owner of a field, if he is deprived of his right,
loses all. The advantages of an invention may be enjoyed simultaneously
by many persons; the produce of a field by one only. Now for a difference
of importance affecting the interests of the public. Give the possessor
of a field his right in perpetuity, and you have circumstances the most
favourable for its yielding all the produce which it can. Not so with
the privilege of an inventor, for it essentially consists in hindering
others from bringing the methods or materials that are patented into
use. From the time of invention and first _exploitation_ the privilege
is an obstacle; it limits the amount of good that society would in its
absence enjoy. What, then, is the motive of certain States in conceding
this exclusive privilege?... The legislators who have created the right
thought that there would in consequence be a larger number of useful
inventions and improvements, and that, on the whole, society would be a
greater gainer than if there were no Patents.... As there are innumerable
instruments and processes for which Patents have been and might still be
taken, there must, if perpetuity of privilege be granted, be a prodigious
number of monopolies, and almost no operation could be performed, nothing
done, without people being obliged to pay tribute to some privileged
person. There would be a countless host of administrators like receivers
of tolls and pontages, diminishing wealth in place of creating it; the
world would soon produce too little to sustain the monopolists and their
_employés_. We thus arrive at an impossibility. But conceive all this
possible, and the world must yet miss a great number of inventions and
improvements, that would under the system of perpetuity be prevented.
This is seen by the obstacles which even privileges of limited duration
throw in the way of new inventions. In actual practice progress is often
attained only by the use of previous inventions. But what if these are
the subject of Patents the holder of which will not come to terms or
cannot be treated with? Retardation, if the privilege is temporary; a
full stop, if perpetual.




NOTES ILLUSTRATIVE OF MR. MACFIE’S SPEECH.

[Page 17.]


The views taken in the text as to the meaning of the word “manufacture”
receive confirmation from the following extract from the _Engineer_ of
June 4, 1869:—




THE AMERICAN PATENT-LAW.


... Accordingly, in the first general Patent-Law passed by Congress,
the subject for which Patents were to be granted were described as
the invention or discovery of “any useful art, manufacture, engine,
machine, or device, or any improvement therein not before known or
used.” In the next statute—that of 21st February, 1793—the phraseology
was first introduced which has been ever since employed—namely, “any
new and useful art, machine, manufacture, or composition of matter, or
any new and useful improvement in any art, machine, manufacture, or
composition of matter, not known or used before the application for a
Patent.”... We have, then, the following four heads of subjects suitable
for Patents—viz., an art, a machine, a manufacture, and a composition of
matter.... In England, to make a new process the subject of a Patent,
the word “manufacture” would be used, and would have to be interpreted
somewhat liberally. Thus, in some cases, there might not be a perfect
distinction between the thing itself and the art or process of making the
thing.... With regard to the head “manufacture,” we cannot do better than
give the definition which Mr. Curtis has added as a note to his work.
He says a manufacture “would be any new combination of old materials,
constituting a new result or production in the form of a vendible
article, not being machinery.”...

As well as from the following extract from—




HINDMARCH ON “VENDING OR SELLING.”


“The sole privilege of making the invention as expressed ... is
in truth the same in substance as the sole privilege of using and
exercising it.... By the first section of the Statute of Monopolies,
patents granting ‘the sole buying, selling, making, working, or using
of anything’ are declared to be void, and the proviso in favour of
inventions contained in the sixth section only extends to ‘grants
of privilege of the sole working or making of any manner of new
manufactures,’ leaving the sole buying or selling of anything within
the prohibition.... The sole privilege granted by a _Patent_ for an
invention authorises the inventor ‘to make, use, exercise, and vend’ the
invention.... And as no one can use the invention except the patentee,
no one besides him can lawfully have such articles for sale.... Every
part of the privilege granted by a _Patent_ for an invention, when thus
explained (!) is therefore clearly within the meaning of the exception
contained in the _Statute_....”

I demur. Is there anything in the _Statute_ to prevent a person
_importing_ articles and _vending_ them though the same as the privileged
person is alone allowed to _make_ or _work_? In point of fact that surely
might, when the statute was passed, be done from Scotland and Ireland as
to manufactures not patented in these countries, but patented in England.


[Page 18.]

The number of Patents granted in the first fifty years after the Statute
of Monopolies was seventy-two, or at the rate of less than one and a-half
per annum.


[Page 19.]

The following list of applications for Patents up to the end of 1862, in
several classes, is abridged from Mr. Edwards’ interesting treatise on,
or rather against, “Letters Patent for Inventions:”—

                                        Oct., 1852, to   Before
                                        Dec. 31, 1862.  Oct., 1852.  Total.

  Railways and Railway Carriages               1,418       630       2,018
  Telegraphs                                     558       109         667
  Steam and Steam Boilers                      1,293       377       1,670
  Steam-engines                                1,228       704       1,932
  Spinning                                     1,837     1,120       2,957
  Electricity, Galvanism, and Electroplating     662        38         700
  Sewing and Embroidery                          352        40         392
  Heating and Evaporating                      1,108       373       1,481
  Fireplaces, Grates                             317       169         481
  Flues and Chimneys                             278        75         353
  Fuel                                           227       129         356
  Ventilating Buildings, Carriages, Ships, &c.   392        81         473




SUGGESTIVE EXTRACTS FROM DR. PERCY’S WORKS ON METALLURGY.

[Page 34.]


THE COPPER TRADE.

It would be sheer waste of time even to notice many of the mis-called
improvements in copper—something for which Patents have been granted in
this country during the last twenty years. Some of the patentees display
such deplorable ignorance of the first principles of chemistry, and such
utter want of practical knowledge, as would seem hardly possible with the
present facilities of acquiring information.

Various Patents have been granted for alleged improvements in the
treating of copper ores, of certain products obtained in the smelting
of copper ores, &c., which are only worthy of notice as affording, as
I conceive, satisfactory illustrations of the defective state of our
existing Patent-Laws.... That a man who has worked out an original and
valuable process from his own brain, and who may have incurred great
expenses in bringing it to a practical issue—it may be, after years of
protracted toil and anxiety—should have secured to him by law during
a moderate term the exclusive privilege of reaping the substantial
reward of his own invention, appears to me as just and reasonable as
that an author should be protected against piratical and unprincipled
publishers. But that the law should confer upon a man the exclusive right
of appropriating to his own benefit facts which are perfectly familiar to
every tyro in chemistry, and of practising operations which are of daily
occurrence in the laboratories of chemists, is as impolitic as it is
unjust. And surely, the particular “inventions” above referred to belong
to this category. I cordially subscribe to the opinion expressed by Mr.
Grove, Q.C.—namely, that the real object of Patent-Law was to reward
not trivial inventions, which stop the way to greater improvements, but
substantial boons to the public; not changes such as any experimentalist
makes a score a day in his laboratory, but substantial, practical
discoveries, developed into an available form.


THE HOT BLAST.

It cannot strictly be termed a great invention, for what great exercise
of the inventive faculty could it possibly have required for its
development? There was no elaborate working out of a process or machine,
as has been the case in many inventions, but the thing was done at once.
Without wishing in the smallest degree to detract from the merit to which
Mr. Neilson is justly entitled, I may nevertheless express my opinion
that the hot-blast was a lucky hit rather than an invention, properly
so-called. Whatever opinion may be entertained as to the expediency of
Patents, there can be no doubt that such a Patent as this ought never
to have been granted. A Patent, even though it may be proved invalid,
confers upon its possessor a _locus standi_ in the eye of the law,
and enables him thereby to involve innocent persons in most expensive
litigation, to say nothing of the attendant annoyance and anxiety. The
preliminary examination before the Attorney or Solicitor-General is in
many cases an absolute farce, and nothing less. The present system,
although confessedly an improvement on the old one, is yet in many cases
highly obstructive and injurious to national interests.


[Page 50.]

The following passage from the _Engineer_ of May 28, proves clearly that
the Bessemer Patents do raise prices of iron:—

The present royalty on rails is 2_l._ per ton; on each ton a drawback of
1_l._ is nominally allowed, but the nature of Mr. Bessemer’s arrangements
with regard to scrap, crop ends, waste, &c., is such that the true
royalty on every ton of Bessemer rails delivered to a railway company—in
other words, sold—amounts to about 1_l._ 5s. 6d. After the lapse of Mr.
Bessemer’s Patents in February, 1870, this sum, all but 2s. 6d. per ton
royalty on plant, will be saved; and, therefore, in March next year,
rails may be bought for at least 1_l._ 3s. per ton less than they cost
now.




WORKING MEN AS INVENTORS.

[Page 62.]


Somewhat to my surprise, I am led to apprehend that the interest
of working men will be represented as coinciding with retention of
invention monopoly. I hope they are too wide awake to believe such a
fallacy, and too upright to approve of the continuance of a proved
national disadvantage, even though it were not a fallacy. If Patents are
injurious to the community by raising prices of articles of consumption
and utility, then the operative and labouring classes, inasmuch as they
constitute the bulk of the population, must be the chief sufferers.
If Patents interfere with labour in any direction, and tend to drive
trade away from our island, they, as the mainstays of industry, must be
the chief sufferers. The only pretence for such an allegation as I am
combating is this: some inventions in all trades, many inventions in
some trades, are made by artisans, who therefore will lose this form
of reward. True enough; but is the reward to these few individuals a
compensation for the evils inflicted on the many—the millions? and is not
the reward often so like the gift of a white elephant, or the catching of
a Tartar—so much of a delusion, a difficulty, a disadvantage, a snare, a
ruin—that their wisest counsellors would warn against its fascination,
especially if through their own favour for my propositions there is the
choice of fair and satisfactory alternative recompenses? The position
of working men in respect to Patents is frequently dealt with in this
compilation; their attention and co-operation I respectfully invite.




THE INVENTORS’ INSTITUTE.


An Inventors’ Institute has been formed for the purpose of maintaining
the Patent System, and amending it in such a way as, I fear and am sure,
will only make its yoke more galling and its burden heavier. The public
will do well to remember that, in spite of the name, this is rather a
society of patentees, including in its membership a portion only of those
inventors who take Patents, and not including the innumerable inventors
who do not take Patents, and who suffer by the system which the Institute
is intended to perpetuate, extend, and knit more tightly on us all and
in the first place on them. The honoured names who direct that society
will do well to consider who are inventors and what are inventions. If
they would but reflect that we are almost to a man inventors in the sense
in which the great mass of patentees are such, and that the majority
of inventions which choke the Patent-office are such as themselves, at
any rate, would disdain to claim and scorn to annoy their fellows by
patenting, they would probably arrive at the conviction—which is half-way
on the road to complete emancipation of trade from the fetters they
hug—that the system is so practically bad that rectification is hopeless,
and would join in endeavours, not to amend what is, even theoretically,
defective and bad, but to devise and introduce a thoroughly good
substitute. I hope the present publication will not be in vain, when it
endeavours to remove well-meaning prepossessions by force of truth.




JUSTIFICATION OF STATE REWARDS.

[Page 81.]


It is just and expedient that the public exchequer should pay inventors,
because—1. The State is entitled, or required, to undertake all
beneficent and useful works which, while they ought to be done for or
by the nation, yet cannot be so well, or at all, done by individuals.
2. Though individuals, more than the nation collectively, will reap the
benefit of these payments, it is manifest that the range of inventive
improvement is so wide that on the average of years every portion of the
community, and every individual in all portions, will share the benefit
pretty equally. 3. The demand for remunerating inventors proceeds from
the State, not manufacturers or producers. 4. These last cannot, under
the _régime_ of free trade, pass over from their own shoulders upon
those of consumers—who are the real, because ultimate, recipients of the
benefit—the burden of royalties, or other payments to inventors. 5. The
charge of £200,000 per annum is, after all, on a population of thirty-two
millions but a poll-tax of _three halfpence per head_. On how easy terms
would we obtain for the nation a universal, prompt enjoyment of every
novelty, and complete emancipation of our commerce and manufactures from
an incubus and thraldom which are every day becoming more depressing!




THE PATENT-OFFICE ESTABLISHMENT.

[Page 86.]


The Patent-office in Southampton-buildings, Chancery-lane, is an
establishment highly creditable to its organisers, but far too little
known. Its free consulting library should be more frequented. The
publications there sold at a cheap rate, and presented gratuitously to
public institutions which undertake to keep them for reference under
fitting regulations, are invaluable. The indexes, manuscript and printed,
there kept, are elaborate, and include lists of scientific and practical
matter affecting commerce and the arts, culled from periodicals issued
in all countries. No change in our manner of dealing with inventions can
deprive us of, or supersede the use of, such an accessible storehouse
of useful knowledge. The wonder is, that its advantages are not more
extensively availed of, and that so few even of our great towns have
applied for sets of its specifications and indexes. There is, in spite of
the establishment’s excellence, room for improvement in several respects,
one of which is in the providing better means for connecting itself with
the mass of the people in the provinces.

“THE NEW CANADIAN PATENT-LAW.—The Patent Bill which has been for some
time before the Parliament of the Dominion, has passed. The hope, to
which we alluded a few weeks ago, that the Bill might be modified to
enable Americans to obtain Patents in Canada, has not been fulfilled;
and the only effect of the Bill, so far as we are interested, is to
shut out American inventors from a larger amount of territory than
before.”—_Extract from “American Artisan,” June 20, 1869._




NOTES AND EXTRACTS ON ROYALTY IN COPYRIGHT, WITH ESPECIAL REFERENCE TO
INTERNATIONAL NEGOTIATIONS AFFECTING NORTH AMERICA.




INTERNATIONAL COPYRIGHT.


The present opportunity is availed of to recommend to notice the royalty
form of International Copyright as one which might probably be acceptable
to the people of the United States. I apprehend there is little or no
prospect of their agreeing to negotiate on the basis of the monopoly
form of Copyright which is now established in both countries. This has
often, but never successfully, been urged on the United States. The
advantages to British authors and publishers of so large an extension of
area are obvious. There are now in that country near forty millions of
people much more able to read and to buy than our thirty millions. It
is in the interests of British authors, publishers, and traders, most
desirable to get so large an addition to the number of the readers and
buyers of English literature. Every year the benefit will be greater,
but perhaps less easily attainable. The conscience and generous impulses
of the great American nation will naturally incline them to negotiate on
a principle which (as I hope they will consider that of royalties does)
at once fairly meets the reasonable claims of authors and the equally
reasonable claims, or rights, of the public. Authors and the trade would
soon become familiar with, and reconciled to, the change in the form
of their remuneration. They cannot but admit and feel that it is the
duty of statesmen, when constituting Copyright, to take care that its
effect is on the whole beneficial—as beneficial as is consistent with
fair treatment of authors—to the whole body of the people for whose
sake they govern. If I am warranted in anticipating that, whereas now
under monopoly a new book of intrinsic value is seldom or almost never
possessed by, or even seen in the houses of, the labouring population,
there would under royalties be a tendency to cheapness which might be
confidently relied on as the means of bringing such works within reach of
the masses—not when they are stale, but when they are fresh—can I doubt
that the concurrence both of authors and legislators is a matter of hope
approaching to certainty? When staleness is suggested as a deterrent
from, and freshness as a pleasant stimulus to, the reading of books, this
is no more than the practical recognition of a taste universal among
men and women, whether it concerns food material or food intellectual.
Let us work it for the good of our race. But it is a quality and power
unattainable except either by royalties or else by the Chinese system of
open literature. That the present system works unsatisfactorily, even
in a mere trade point of view, I am convinced, and for confirmation
refer to figures I append from a Return on the Book Trade lately laid
before the House of Commons. The sale of books at home and the export
of books to the colonies and foreign parts, admit of vast expansion.
We should legislate so as to accomplish, in regard to books, at the
least such an expansion as has been attained in regard to newspapers.
While the present form of Copyright remains in force, it would be vain
to expect that the existing hindrances will be overcome. Publishers,
therefore, may well co-operate. But I appeal with equal directness to
philanthropists, especially all those who have the power of representing
to their fellows what a folly and mistake it is to write books with a
view to the moral, social, and religious welfare of men, and yet to rest
satisfied with a system of law and trade that find the recompenses of
authorship and of publishing ventures in a limited sale of dear books
instead of an extensive sale of cheap ones—of a few good books at a large
profit instead of many good books at a small! I could adduce from my
own transactions conclusive proofs of the bad working and obstructive
operation of monopoly in Copyright. Ireland, in particular, may well
exclaim against it; for before the Union the publishers of Dublin used
to drive a useful business in reprinting British works which they have,
under the present system, been deprived of, to their own loss and the
incalculable disadvantage of their countrymen.

The Chinese, it is said, do not recognise Copyright. What the effect is
on their literature I know not. But their post-office and custom-house
officers should, at any rate, rejoice that, unlike the establishments in
enlightened Britain, they are not employed in the interests of private
individuals as detectives of contraband literature.

I submit with some confidence a scheme I have sketched. It is one which
I hope will at least prepare the way for this important national and
international question receiving the earnest attention it merits.




SUGGESTIONS FOR THE AMENDMENT OF THE SYSTEM OF COPYRIGHT FOR BOOKS, BY
MR. MACFIE.

(From the _Leith Herald_ of — Jan.)


    1. The period of exclusive privileges to continue as at
    present, unless any publisher demand that it shall be
    shortened, which he may do any time after the end of the first
    year, provided he intimates to the author or assignee of the
    author, or their agent, at the Stationers’ Hall, or other place
    duly appointed, that he intends to publish an edition at a
    lower price within a year, and also lodges there a specimen
    copy and a statement of the intended price.

    2. On such new edition the intended publisher shall be liable
    to pay in advance [five] per cent. on the retail price of the
    book.

    3. And there shall be impressed on the first sheet of each copy
    a distinctive stamp approved by the Stationers’ Hall, without
    which it shall be a penal offence to print or vend any copy.

    4. Every publisher making such an intimation shall be bound to
    actually publish, according to his notice, unless the author or
    his assignee, within six months of his receiving intimation,
    shall lodge at the Stationers’ Hall a bond obliging himself
    to publish on his own account, an edition at least as good in
    quality, at a price no higher; such bond to bar any action
    under the provisions of Article 1.

    5. No reprint to differ from the original edition, without
    the author’s consent, either in the way of abbreviation,
    enlargement, or alteration of the text.

    6. If a book is out of print for a whole year, the copyright
    privilege to lapse.

    7. By special arrangements a longer period of exclusive
    privilege shall be allowed for Encyclopædias, works _de luxe_,
    &c. [Engravings, photographic illustrations, &c., not to be
    subject to the condition now proposed in this paper.]

    8. Government to endeavour to negotiate international copyright
    treaties on the principle exhibited in the foregoing, with
    the United States and other foreign countries, in order to,
    first—the increase of the area of remuneration to authors;
    and, second, the removal of all unnecessary obstruction to the
    exchange of literary productions.

    9. On the completion of the above treaty or treaties, all
    examination and stopping of books by the Custom-house and
    Post-office to cease.

    10. Government to endeavour to persuade foreign Governments to
    exempt printed matter from duty, or else to charge duty at a
    moderate rate by weight, and not _ad valorem_.

    The British colonies to enter into the Copyright “Verein” which
    would be so constituted, but without any import or export duty,
    except in so far as proximity to the United States may render
    modification in Canada desirable.

    In the event of such international arrangements being
    negotiated, the author or assignee of any copyright work to
    have an agent in the capital of each of the united countries,
    who shall be empowered to receive and give the notices,
    intimations, and bonds provided for in Articles 1 and 4.

I am satisfied that the system of royalties could be carried out in
practice without difficulty. Each author would have a special stamp—call
it, if you will, trademark—the use of which, required as a condition of
circulation, he would authorise under such superintendence as he may
think fit. No copy should be legally saleable without the stamp, just as
in France no pamphlet can be sold without the Government stamp.

Strong confirmation of the applicability of the royalty principle to
literature reaches me after the preceding is in type, which I subjoin;
No. I. being extracts from articles published in 1837 and 1839, by Thomas
Watts, Esq., Keeper of the Printed Books of the British Museum; and No.
II., a chapter from “Traité des Droits d’Auteurs,” by M. Renouard, Paris,
1838.


I.

(Extract from the _Mechanics’ Magazine_, Vol. 27, 1837.)

This is the last of the new provisions mentioned in the preface, and
the only one in the whole bill that seems intended for the benefit of
the public. We were in hopes of finding at least one other, to provide
for some method of “taxing” the price of new works, as used formerly
to be done in foreign countries when a Copyright was granted. A limit
is proposed to be fixed to the profits of railway companies; why are
authors and publishers to be allowed to demand what sums they please?
When they find they have a giant’s strength, they are too apt to use it
like a giant. There is such a thing, not only in theory, but in practice,
as laying too heavy a tax on an author’s admirers. In the height of
Walter Scott’s popularity there was no other way of obtaining an early
copy of a new poem than by purchasing it in the inconvenient form of a
ponderous quarto; it generally, a few months afterwards, appeared in an
octavo shape; but in one instance, Sir Walter, finding it desirable to
force the sale of an unsaleable periodical with which he was connected,
“The Edinburgh Annual Register,” inserted one of his poems in one of the
yearly volumes, and drove all such of his adversaries as had not bought
the quarto to buy a cartload of old news, along with the vision of Don
Roderick. Is all this justified by the comprehensive maxim that a man may
do what he likes with his own? Since the Copyright of Sir Walter’s poems
has drawn near the term of extinction, his publishers have thought fit to
issue them in editions not only so cheap that they suit the pocket, but
so small that they may be put into it. His novels are Copyright still,
and the consequence is, that they are still not only dear, but ill got
up. What a torrent of Elzevir editions of “Waverley” there would be if it
were now public property! At present there is not one edition of it in
one volume, the most usual and convenient form for a standard novel—not
one edition in Elzevir, the most usual and convenient size. And this is
to remain so for the next sixty years!

Sergeant Talfourd might provide a remedy for these evils in the literary
tribunal which, though he makes no proposal for it in the present Bill,
he is anxious to see established, for the decision of literary cases (and
his arguments for which, by the bye, would answer equally well in regard
to every other profession). It would provide itself, if a project were
adopted for a Copyright-Law, of which we shall now proceed to state the
outlines, but without the forlornest hope of ever seeing it tried.

Let an author be empowered to sell the Copyright of his work to a
particular publisher for the space of five years only—a term at the end
of which nine-tenths of the works now published are completely forgotten.
Let it then become public property, in the same way that a play, on being
published, becomes public property, since Mr. Bulwer’s Act. As a manager
now has the right to act any play he chooses, on paying a certain sum to
the author for each night of representation, so let any printer have the
right to print any work on paying a certain sum to the author for each
copy he issues. The main, perhaps the only, objection to the plan would
be the necessity of establishing some Excise regulations, with regard to
printing-offices, for the prevention of fraud.

The great recommendation, of course, would be, that of every work of
reputation we should have cheap and elegant editions; that such of them
as required comment and illustration (and now, when the Copyrights
expire, it is speedily found that very few of them do not) would receive
it at an earlier period, and that the works of living authors would be
much more extensively diffused than they are, while their interest would,
it is hoped, be advanced in an equal proportion to their fame.

After all, however, we are afraid that no Copyright Act, however
favourable to authors, will exercise a perceptible beneficial influence
on literature. Our own at present is frivolous, and it is assigned as a
cause that our authors are ill-protected. If this be really the cause, in
what sort of a state ought that of Germany to be? It is, however, in the
very country where piracy is most prevalent that solid literature is most
flourishing. Unhappily, no Act of Parliament can reform the taste of the
public.


(Extract from the _Mechanics’ Magazine_, Vol. 29, 1839.)

How and why is it that foreign editions take the place of our own?
Because, undoubtedly, of the difference in the price of the two, caused
by the monopoly which in one case remains in the hands of one publisher.
Is it not notorious, in fact, that even those of the middle classes
who have a love for literature never, with rare exceptions, purchase a
Copyright book, and that for the very good reason that they cannot afford
it? Their only way of getting a sight of a new publication complete is
by obtaining it from a circulating library; and particular passages that
they wish to have by them, for the purpose of reference or re-perusal,
they get possession of, if they get possession at all, by purchasing them
extracted in some of the cheap periodicals which subsist on extracts. The
effect of this state of things is now manifesting itself in the condition
of our literature, which is becoming more and more the literature of
circulating libraries—a heavy mass of light reading. How, indeed, can it
be expected that an author will take pains when he knows that all his
pains will be of no use; that his history or his travels will only come
into the hands of those who will be compelled to rush through them at a
certain rate, and return them by a certain hour. “He who runs may read,”
under the present system, and none but those who do run.

This system has come up under the twenty-eight years’ monopoly. Is it
likely to be improved under a law which will secure a monopoly for
sixty years certain, and perhaps a hundred? We do not think it is. The
advocates of the Bill indeed triumphantly refer us to the recent cheap
editions of Copyright authors, as proofs of the—we hardly know what; for
what do they prove in their favour? The greater part of the works alluded
to—the poems of Southey, the novels and poems of Walter Scott, are works
of which the Copyright is on the verge of expiring.


The following extract is also from the same volume:

The strangest misapprehensions seem indeed to prevail generally as to
this question; one of the strangest is, that the only parties interested
are the authors and the booksellers, and that if the Bill be thrown out,
the former will suffer, that the latter may be enriched by the fruit of
their labours. The third party, whose interests are not the least among
those concerned—the public—is generally quite lost sight of. Thus it has
been said, in reference to the often-quoted case of Wordsworth, that the
question is, whether the heirs of the poet shall enjoy the profit of
his works, or the heirs of Mr. Tegg (the bookseller who is so active in
opposition to the Bill). But it is no such thing. Under the present law,
at Mr. Wordsworth’s death, and the consequent expiration of the Copyright
in his works, they would become the property, not of this or of that
man’s heirs, but of “all England,” of the public at large. If Mr. Tegg,
or his heirs, reap any profit, it will only be by the exercise of their
callings, and Mr. Wordsworth’s heirs will have just the same privilege.
The notion that the title of the cause now pending is only “Author _v._
Bookseller,” has been worked upon to such an extent, that it would almost
seem that the advocates of the Bill see the importance of mystifying the
public on the subject, and preventing the names of the real defendants
from being seen.




II.

CHAPTER FROM M. RENOUARD’S “TRAITÉ DES DROITS D’AUTEURS.”

_La garantie d’un droit exclusif de copie sur la reproduction de
l’ouvrage est le meilleur mode de salaire de la société envers l’auteur._


Long-temps on a cru que les écrivains et les artistes devaient être payés
par des pensions et des faveurs. C’étaient en quelque façon l’Etat et
les princes qui acquittaient ainsi la dette du public, et en même temps
que l’on ne se faisait nul scrupule d’accepter ces faveurs, on était
facilement disposé à rougir du paiement à tirer du public par la vente
de son droit de copie sur ses propres ouvrages (1). Une partie des idées
a bien changé. Aucun préjugé défavorable ne s’attache à flétrir la vente
qu’un auteur fait de ses œuvres. Tout au contraire, une réaction s’est
opérée. L’industrie s’est mêlée à la littérature, et a trop souvent pris
sa place. Les pensions et les faveurs n’ont pas cessé; mais elles ont
été reléguées à un rang accessoire et secondaire. Les littérateurs n’ont
plus comme autrefois une existence à part, qu’ils tiennent des princes
et des grands, dont la libéralité leur faisait de paisibles loisirs, et
auxquels, en échange, ils donnaient des louanges et quelquefois de la
gloire. Les lettres mènent à la fortune, jettent dans les affaires et les
honneurs.

L’observateur moraliste aurait à dire sur cette revolution mêlée de biens
et de maux. Dans l’ordre actuel, comme dans la vie littéraire ancienne,
les passions grandes ou mesquines, les instincts généreux ou cupides, le
calcul et le désintéressement ont leur action et leur rôle. Mais, somme
toute, les idées sont mieux à leur place. Vivre du tribut volontaire que
le public s’impose ne rabaisse aucune position, ne messied à aucun génie.

D’insurmontables difficultés s’élèvent contre tout mode de paiement,
qui procéderait par voie de pensions, de traitement fixe, ou même, sauf
quelques exceptions très rares, par prix d’achat, une fois payé, achat
qui prendrait la forme d’expropriation pour cause d’utilité publique,
si l’auteur n’était pas laissé maître de s’y refuser. Avec de telles
formes de salaire, la justice distributive serait impossible; et il n’est
pas de trésor qui pût suffire aux insatiables prétentions, aux faveurs
capricieuses, aux concussions faciles auxquelles on ouvrirait une large
porte. Qui donc si, par exemple, on adoptait le procédé d’expropriation
pour cause d’utilité publique, déclarerait cette utilité et apprécierait
les travaux? qui calmerait les rivalités? qui ferait justice de la
médiocrité? qui inventerait des récompenses dignes du génie, sans
soulever l’envie? qui irait au devant du mérite fier ou modeste?
Attribueriez-vous au gouvernement l’estimation des ouvrages à acheter
dans l’intérêt public? et ne voyez-vous pas à quels périlleux soupçons,
à quelles intrigues subalternes, à quelles corruptions habiles, à quels
profits honteux vous exposez l’administration, sans parler de toutes
les erreurs auxquelles elle ne saurait échapper? Ferez-vous évaluer
les ouvrages des écrivains par leurs pairs; et, si désintéressée, si
modeste, si impartiale que soit toute la littérature, oserez-vous ne vous
en rapporter qu’à elle seule dans sa propre cause? Trouverez-vous dans
des magistrats, dans des jurés, les habitudes d’esprit et la spécialité
de lumières indispensables pour une si hasardeuse décision? Pour moi,
je n’aperçois de toutes parts qu’inconvéniens, qu’impossibilité. Il
n’est qu’un seule juste appréciateur du salaire dû aux écrivains et aux
artistes: le public. Il n’est qu’une seule appréciation juste: celle que
le public, sans la formuler, mesure sur l’utilité et le plaisir qu’il
tire d’un ouvrage. Un seul mode de paiement me paraît juste et possible:
c’est celui qui attribue à l’auteur, sur chaque édition ou sur chaque
exemplaire de son ouvrage, un droit de copie.

Ce moyen est celui que l’expérience a fait reconnaître comme le plus
simple; c’est aussi le plus équitable; car, en général l’évaluation la
plus judicieusement approximative de l’utilité d’un livre consiste dans
le succès qu’il obtient.

Il résulte de l’adoption de ce moyen que le salaire de l’auteur se trouve
très subdivisé, et que le prix de chaque exemplaire s’augmente de la part
qu’il supporte dans la valeur générale assignée à l’objet de la copie.

Sans doute, ce renchérissement est un inconvénient; car les livres à bon
marché sont des propagateurs d’idées plus rapides, plus puissans, plus
actifs que ceux dont le prix est élevé. Mais il n’y a pas de paiement
pour les auteurs, si l’on n’a, par une voie quelconque, recours au public
pour le fournir. Renchérir un livre, parce qu’il faut acquitter le droit
de copie, c’est établir une sorte d’impôt. Or, un impôt, quoique offrant
toujours en lui-même des inconvéniens pour le public, se légitime par
sa destination, lorsqu’il rend, en dépenses générales, en sécurité
individuelle, en garanties efficaces, plus que ce qu’il ôte à chaque
contribuable. C’est acheter trop cher l’abaissement du prix d’un livre
que de ne pas payer l’auteur, que de le sacrifier à ses travaux, que de
le décourager et de le jeter dans l’avilissement par la misère. Le livre
coûtera un peu plus, mais il verra le jour, mais on ne l’aura pas étouffé
avant sa naissance; mais surtout on n’aura pas été injuste envers celui à
qui on le doit. Dire que l’on aimerait mieux passer un pont, un canal,
sans rien payer, que d’en rembourser les frais par un péage; que l’on
aimerait à être gardé par une armée, sans payer les soldats; jugé par
les tribunaux, sans payer de juges; instruit ou récréé par un auteur,
sans payer son travail; par un libraire, sans payer les frais de vente;
par un imprimeur, sans payer les frais de fabrication; par un laboureur,
sans payer sa culture et son blé, ce serait la prétention étrange
de tout prendre dans la société sans y rien mettre, et d’exploiter
nos semblables, comme s’ils n’étaient pas égaux à nous; ce serait le
renversement de toute idée sociale.

Cet impôt au profit de l’auteur sur son ouvrage peut se percevoir de deux
manières. L’une consiste à interdire à tout autre qu’à l’auteur ou à ses
ayant-cause, la faculté de fabriquer l’ouvrage et de le vendre; l’autre
serait de laisser à chacun pleine liberté de fabriquer et de vendre
l’ouvrage, mais à la charge de payer une certaine rétribution à l’auteur.
Le premier système établit un privilège, le second une redevance.

Le second système peut de prime abord séduire. Beaucoup de personnes qui
ne renonceraient qu’avec peine à voir dans le droit de copie un objet de
propriété, auraient volontiers recours aux redevances, pour conserver par
une sorte de suzeraineté qui pourrait indéfiniment s’étendre, quelque
image d’une propriété indéfiniment transmissible. Là se place à l’aise
l’ordre d’idées qui, faisant deux parts de la partie spirituelle et de
la partie lucrative de chaque ouvrage, livre au public la jouissance de
la première, et ne retient parmi les biens vénaux et exploitables que la
seconde.

Ne nous occupons pas encore des objections qu’il y aurait à faire, soit à
la très longue durée, soit à la perpétuité d’une redevance. Ces argumens
s’appliqueraient également à la trop grande extension que l’on essaierait
de donner à, la durée des privilèges. Examinons les inconvéniens inhérens
au mode de redevance considéré en lui-même.

Ce qui le rend inadmissible, c’est l’impossibilité d’une fixation
régulière, et l’excessive difficulté de la perception.

Peut-être, à force de soins, surmonterait-on les obstacles à la
perception; mais, quant à la fixation de la redevance, le règlement en
est impossible.

Cette fixation ne peut dépendre ni de la volonté arbitraire de l’auteur,
ni de l’évaluation que jugerait à propos de faire toute personne qui
voudrait user du droit de copie. S’en rapporter à l’appréciation du
débiteur de la redevance est une absurdité manifeste; mais il serait
absurde, au même degré, de s’en remettre au prix que demanderait
l’auteur. Que serait ce, en effet, autre chose que de lui conférer le
privilège d’exploitation? Il vaudrait mieux mille fois lui attribuer
franchement le monopole sur son ouvrage que d’arriver au même résultat
par cette voie détournée.

Demandera-t-on à la loi de déterminer une redevance fixe? mais quoi
de plus injuste qu’une mesure fixe, rendue commune à des objets
essentiellement inégaux? Prendrait-on pour base le nombre des
exemplaires, l’étendue du volume, son prix de vente? mais il est des
ouvrages dont cent ou cinq cents, ou mille exemplaires suffiront à jamais
à la consommation, tandis que d’autres se débitent par dix et cent mille:
mais l’étendue du volume varie avec tous les caprices de la fabrication:
mais le prix est plus variable encore. Sans parler des hausses et des
baisses dont personne n’est maître, sans parler de l’extrême facilité
des fictions dans les prix, et de l’impossibilité de les constater, ne
sait-on pas que l’on fabrique des Télémaque à vingt sous, et d’autres,
qui ne seront pas trop chers, à cent ou deux cents francs? Avec le
texte qui ne varie point, il faut parler du papier, des caractères
d’impression, des soins typographiques, des ornemens accessoires de
gravure ou autres, objets tous variables à l’infini. Si votre redevance
a pour base une valeur proportionelle, chaque Télémaque de deux cents
francs produira, pour le seul droit de copie, plus que ne vaudra, dans
l’autre édition, chaque exemplaire tout fabriqué; et cependant ce sera
toujours le même texte qui n’aura pas plus de valeur intrinsèque dans un
cas que dans l’autre.

Resterait un dernier mode de fixation; il consisterait, en cas de
désaccord entre le débiteur de la redevance et l’auteur, dans un
règlement par experts, variable suivant les circonstances. Mais qui ne
voit tous les frais, tous les délais, tous les procès auxquels chaque
affaire donnerait lieu, pour n’être, la plupart du temps, que très
capricieusement décidée?

Le raisonnement juge cette question comme l’expérience l’a tranchée.
L’exclusion de tout autre système acceptable conduit, par la logique, à
l’adoption de privilèges destinés à garantir le monopole d’exploitation,
soit à l’auteur seulement, soit à l’auteur et à ses ayant-cause. Toutes
les législations actuellement en vigueur en adoptant ces privilèges
ont voulu qu’ils fussent temporaires. Les motifs pratiques de cette
opinion ont été indiqués par la haute intelligence de Napoléon dans une
discussion du conseil d’état (1).

Privilèges, monopoles; ces mots sonnent mal: les mots de propriété
littéraire recommandent bien mieux une opinion. Si je disais que cette
différence dans les mots n’a pas été sans influence sur le succès divers
des deux systèmes, les lecteurs sérieux trouveraient cette remarque
bien futile; elle est futile en effet; mais elle est vraie, et des
personnes, tenues pour graves, s’imaginent qu’elles argumentent parce
qu’elles s’écrient: Quoi! vous attaquez la propriété au nom du privilège
et du monopole! Je n’aurais point entendu ce propos que j’y aurais cru
d’avance. Que d’opinions se déterminent par des mots!

J’ai defini la propriété. Quant à la définition du privilège, tout le
monde la connaît: c’est une loi privée, _privata lex_. Ai-je besoin
d’ajouter, d’une part, qu’il existe des privilèges parfaitement
légitimes; et, d’autre part, que souscrire au dogme de la propriété
littéraire, c’est décider, d’un mot, que le monopole des productions de
l’intelligence sera concentré, à perpétuité, entre un petit nombre de
privilégiés.




EXTRACTS ON INTERNATIONAL COPYRIGHT.


I refer to the following extracts, wishing they accorded more with the
views I myself espouse. It is about twenty years since Mr. Cobden told me
he was opposed to Copyright. Whether the philanthropist, statesman, and
patriot changed his opinion, I do not know, but I trust my propositions
are such as many profound admirers of his will find consistent with his
policy and principles:—


EXTRACT FROM THE COBDEN CLUB PRIZE ESSAY, BY DR. LEAVITT, OF NEW YORK.
1869.

    When the people of these two nations shall all read freely the
    same books, and when the audience of both English and American
    authors shall be the whole English-speaking public throughout
    the world, the petty jealousies, the trivial misapprehensions,
    the unhappy distrusts, which dishonour the intelligence of the
    age, will be known no more....

    The proposed International Copyright has an important bearing
    in this connexion. The object of this copyright is to give to
    the authors of books, or their assigns, the exclusive right of
    publication in both countries, in order to keep up the price
    in both. That this enhancement of the price in one country
    of books produced in the other will have a tendency to limit
    the mutual circulation of current literature, will not be
    questioned.

    Whether the proper encouragement of authors requires this to
    be done, is the point which the two Governments should first
    settle. Copyright does not exist, except as created by law,
    for it begins only when the steps are taken which the law
    prescribes, and it continues only so long as the law extends
    it. There is, therefore, no natural right involved. A man’s
    thoughts are his own only so long as he keeps them to himself.
    When he has uttered them they become the thoughts of all who
    receive them, and who thenceforth use them at pleasure. The
    title to a thought by original invention is no better than
    the title to an asteroid by original discovery. The clothing
    of a man’s thoughts in language no more entitles him to their
    exclusive publication, after they are gone forth to the public,
    than a man’s careful study of the clothing of his person
    entitles him to forbid the imitation of his garb and gait as he
    walks the streets. The law creates Copyright on the assumption
    that the public good will be promoted by the encouragement thus
    granted to authors to publish their works....

    The pecuniary return realised from their publications is
    neither the only nor the chief encouragement by which authors
    of merit are induced to publish their works. The good they
    may do to mankind, the reputation they may acquire, and the
    satisfaction of seeing their thoughts widely diffused and
    received, and made a part of the mental wealth of their country
    and age, outweigh a thousandfold, to an enlarged and generous
    mind, the value of the material silver and gold yielded by
    their Copyright. And it cannot be doubted that these higher
    returns are directly increased by freedom of publication
    unrestricted by Copyright; because cheapness of price, and
    variety in the forms of publication, are prime elements in the
    widest circulation of books....

    It is impossible to exaggerate the value of this international
    exchange of ideas through the medium of books, as a means of
    that general assimilation of thought and life which is the
    highest guaranty of political and commercial intercourse and
    permanent friendship between the two countries. While each
    nation, for the most part, buries its own literary trash,
    and each retains the exclusive circulation of books adapted
    specially to its own use, the whole volume of the best thoughts
    of one country have now their widest diffusion, through their
    freedom of publication in the other.

The present is a favourable time for the consideration of this important
question. The following extract from the editorial columns of the
_Bookseller_, of May 1, is confirmatory and encouraging:—

    An English author has no rights whatever in the United States;
    this should be thoroughly and clearly understood. He may
    make any arrangement he may think proper with regard to the
    publication of his works, but can acquire no Copyright in
    any way. He may wish Brown and Co. to be his sole and only
    publishers, but cannot prevent Jones and Co. bringing out rival
    editions; consequently, he can derive little or no profit from
    his works. By sending out early sheets, so as to give Brown a
    few days’ advantage over Jones, he may get a small payment, but
    the sum may be very small. Moreover, should Messrs. Jones have
    noted his coming greatness, and have been the first to announce
    his first book, albeit quite unknown to him, they will claim to
    be his publishers; and although, he may wish to give Brown the
    preference, they will feel themselves aggrieved and insist upon
    helping to make him famous. Should he go to America, and first
    publish his book there, he will find himself in a still worse
    position; he is like the notorious “Man without a Country”—he
    has positively no rights at all; he has none in America, and
    has none here. It was long supposed that an American author
    was in a similar position; but it is not so. By a fluke he
    has secured rights which he never dreamed of, and by means of
    _our_ Copyright-Law, may obtain privileges denied him by his
    _own_. His plan is simply this: having prepared two copies
    of his MS., he places one in the hands of his Boston or New
    York publisher, with directions to publish on a certain day;
    the other he forwards to a London house, with directions to
    publish at the same time. Just before the day of publication,
    which is possibly at that time of the year when Saratoga is
    an abode more agreeable than the Fifth Avenue, he proceeds to
    the Canadian side of the Falls. Here he spends a few hours,
    and then returns, without encountering more inconvenience than
    saving his hotel expenses by buying a suit of clothes, on
    which he pays no duty on his return. Thereupon he finds that
    by so simple a process he has obtained Copyright in the United
    States, in the dominion of Canada, in Australia, India, France,
    Germany, and Great Britain! We can imagine the lively twinkle
    of his eye as he crosses the Suspension-bridge, to think what
    cute people the Britishers are to have secured all these
    privileges for him.

    We believe, therefore, that American authors are not very
    anxious about the matter. By taking a little trouble, they can
    secure all they wish.

    English authors have not been fairly treated. They are at great
    disadvantage, and must be satisfied for the present to work
    for fame, or but for little more. Fortunately for them, the
    American publishers, seeing that they do what they are legally
    entitled to do, are quarrelling amongst themselves, and are
    crying out for protection.

    [Here is introduced the case of an American publishing-house
    stated by themselves, which concludes thus:—

    ... “A review of these facts naturally suggests the reflection
    that the interests of the book-trade in this country, no
    less than the protection of authors in their just rights,
    require further legislation at the hands of Congress. It is
    high time for the passage of a well-considered International
    Copyright-Law, such as will wipe away from our country the
    reproach of what are known as ‘pirated editions.’”]

    We quite agree with this. Some legislation is called for. But
    now comes a third party, the public, which has its rights as
    well as the others. We shall very likely incur some odium
    for admitting that the million have any rights whatever to
    the productions of men of letters, and may be told that
    emanations of the brain are as much the private property of
    their authors as the guineas are of the man of business. So
    they are, so long as they keep them, to themselves; but when
    they have communicated them to the world they are no longer
    their exclusive property. It is right that they should have
    a modified protection, and we think it must be admitted that
    English authors are amply protected in their own country. We
    think, however, that the American public will not be disposed
    to give them the same amount of protection there, nor is it
    well that they should have it. They are, however, entitled to
    some protection, and we hope the day is not far distant when
    English authors will reap some solid advantages wherever the
    English language is spoken. We are disposed to think that seven
    years would generally be long enough for the purpose; although
    so short a time would be hard upon such men as Grote, Motley,
    Merivale, Webster, and others, whose lives have been spent
    upon their works. We take it for granted that the law, when
    modified, will be the same on both sides, and that Dickens and
    Longfellow will receive equal treatment. We are too selfish to
    give up our cheap editions of Longfellow, and American citizens
    are not what we take them to be, if they would, for a whole
    generation, debar themselves from popular editions of Dickens.


(From _The Bookseller_, June 1, 1869.)

    COPYRIGHT IN CANADA.—Letter by the _Times’_
    correspondent:—“Under the English Law, English Copyrights
    reprinted in the United States are imported into Canada,
    subject to the same duty as other imported articles; but these
    Copyrights cannot be reprinted in Canada, the consequence being
    that the Canadian public is almost entirely dependent on the
    United States for reprints. The English author is seriously
    injured, inasmuch as not one-tenth part of the reprints which
    find their way to Canada are entered at the Custom-house or
    pay duty.”... Mr. Rose replies:—“The undersigned is ready to
    admit that the principle involved is theoretically at variance
    with the general policy of the mother-country, in so far as
    the object of that policy is to secure to authors an absolute
    monopoly in works of literature for a term of years; but it
    must be remembered that the necessity for this exceptional
    legislation arises out of a previous partial departure from
    this theoretical policy, which in its practical operation is
    shown to afford a premium to the industrial interests of a
    foreign country, &c. If it could be shown that the concessions
    asked for would result in any way to the practical disadvantage
    of the author, or lessen the protection which it is intended
    to secure to literary labour, there might be some reason for
    withholding them. If the rate of duty, whether import or
    excise, were inadequate, it would be an equally reasonable
    argument against the extension of the law; and in that case
    the rate could be augmented. But the undersigned fails to see
    any reason why, so long as the importation from abroad is
    permitted, the publication in Canada at an equal rate of duty
    should be withheld.”


(Extract from the _Atlantic Monthly_, October, 1867.)

    ... This work, we repeat, cost the author 24,000 dollars to
    produce. Messrs. Harpers sell it at 15 dollars a copy; the
    usual allowance to the author is 10 per cent. of the retail
    price, and as a rule, it ought not to be more.


(Extract from the _American Booksellers’ Guide_, June 1, 1869.)

    At a public meeting recently held in Montreal, respecting the
    Copyright-Law, it was resolved to apply to Parliament for an
    amendment permitting Canadian publishers to print British
    Copyright works upon the payment of 12½ per cent. to British
    authors.... The payment by the publisher of 5 or 10 per cent.,
    or of a fixed sum, for a Copyright of a book, whether by an
    American or British author, does not necessarily increase the
    price of the book.


(Extracts from an Article in the _Athenæum_, July 17, 1869.)

    This great question is of especial interest at the present
    time, in consequence of opinions and demands put forward by
    Canada with relation to Copyright property in the United
    Kingdom. It appears that for some time past a correspondence
    has been carried on between the Canadian Government and the
    Imperial authorities upon the subject of “Copyright-Law in
    Canada.” This “Correspondence” (having been laid before the
    Canadian Parliament) has been printed and published. It
    commences with a resolution of the Canadian Senate (passed
    15th of May, 1868) that the Governor-General should be prayed
    “to impress upon Her Majesty’s Government the _justice and
    expediency_ of extending the _privileges_ of the Imperial
    Copyright Act, 1847, so that whenever reasonable provision and
    protection shall, in Her Majesty’s opinion, be secured to the
    authors, _Colonial reprints_ of British Copyright works shall
    be placed on the same footing as foreign reprints in Canada, by
    which means British authors will be more effectually protected
    in their rights, _and a material benefit will be conferred on
    the printing industry of the Dominion_.”...

    All the North-American colonies soon availed themselves of this
    Act of 1847, and Orders in Council were founded upon them; the
    rights of British authors being deemed sufficiently protected
    by an _ad valorem_ import duty of 20 per cent. upon the value
    of the “foreign reprints,” that, being about _one-tenth_ of the
    price of the works as published in England!

    There appears to have been no debate in either House upon
    this Act of 1847, and it seems to have escaped all public
    notice on the part of British authors and publishers during
    its progress in Parliament. From the time Her Majesty’s Orders
    in Council enabled the colonies to avail themselves of that
    Act, it has operated as a stimulus and considerable premium
    to the “legalised robbery” of British Copyright property in
    the United States, and has, practically, given printers and
    publishers there a monopoly in “foreign reprints” of English
    books. The Act of 1847 is, therefore, a partial confiscation of
    those Copyrights which have been acquired in England under Earl
    Stanhope’s Act of 1842, because the colonies have, for the last
    twenty years, been almost exclusively supplied with English
    books by United States reprints of those books....

    In 1867 the “dominion of Canada” was created by the Imperial
    Act of that year, which united all Her Majesty’s North
    American Colonies. It was then found that printing had become
    much cheaper in Canada than it was in the United States; and
    amongst the earliest Acts of the first session of the Canadian
    Parliament two statutes were passed—one, “An Act respecting
    Copyrights;” and the other, “An Act to impose a Duty upon
    Foreign Reprints of British Copyright Works.” Under the first
    of these Acts, no work of “any person resident in Great Britain
    or Ireland” is to be entitled to the protection of that Act
    unless “the same _shall be printed and published in Canada_.”
    And under the second of the above Acts it is sought to keep
    alive the injustice of allowing “_foreign reprints_” to be
    imported into Canada as a basis for that resolution of the
    Canadian Parliament to which we have called attention.

    Such are the facts which preceded the Canadian
    “Correspondence.” It commences with the resolution which, in
    effect, advocates “the _justice and expediency_” of enabling
    Her Majesty’s Canadian subjects at their discretion (and
    without the permission of the owners) to confiscate the
    property of authors of British Copyright works upon the terms
    of the publisher paying such authors a royalty of 12½ per
    cent. upon the price of the Canadian reprints, that being
    about _one-tenth_ of the publication price of the work in
    England! It appears the “justice and expediency” of adopting
    this Canadian resolution has been pressed very strongly upon
    the authorities at the Colonial-office, and likewise at the
    Board of Trade, by the Hon. J. Rose, the Canadian “Minister
    of Finance.” He frankly admits that the policy of the Act of
    1847 (so far as respects the protection of British authors)
    has long been an utter failure; that the amount of duties
    received for their benefit “is a mere trifle;” and that “it is
    next to impracticable to enforce the law.” These statements
    are confirmed by a letter, dated June 11, 1868, from Mr. John
    Lovell (a Montreal publisher) to Mr. Rose, and which appears
    in the Correspondence. Mr. Lovell says: “At present only a
    few hundred copies pay duty, and many thousands pass into the
    country without registration, and pay nothing at all; thus
    having the effect of seriously injuring the publishers of
    Great Britain, to the consequent advantage of those of the
    United States. I may add that, on looking over the Custom-house
    entries to-day, I have found that not a single entry of an
    American reprint of an English Copyright (except the Reviews
    and one or two magazines) has been made since the third day of
    April last, though it is notorious that an edition of 1,000
    of a popular work, coming under that description, has been
    received and sold within the last few days by one bookseller in
    this city.”

    In support of the Canadian resolution, the Hon. J. Rose
    likewise urges the greater cheapness now of printing in
    Canada than in the United States. Upon this point he is also
    confirmed by Mr. Lovell, who says: “It is undeniable that
    Canadian printers would be enabled to comply with the requisite
    conditions (that is, of paying a royalty of 12½ per cent. to
    the author), and produce books, thanks to the local advantages,
    at a much cheaper rate than they can be produced in the States,
    _and so bring about a large export business_.”...

    This application on the part of the Canadians is answered
    at considerable length by the Board of Trade; the substance
    of that answer being “that the question raised is far too
    important, and involves too many considerations of imperial
    policy, to render it possible to comply with that application.
    My Lords, however, fully admit that the anomalous position of
    Canadian publishers with respect to their rivals in the United
    States of America is a matter which calls for careful inquiry;
    but they feel that such an inquiry cannot be satisfactorily
    undertaken without, at the same time, taking into consideration
    various other questions connected with the imperial laws of
    Copyright and the policy of International Copyright Treaties,
    and they are, therefore, of opinion that the subject should
    be treated as a whole, and that an endeavour should be made
    to place the general law of Copyright, especially that part
    of it which concerns the whole continent of North America,
    on a more satisfactory footing. The grievance of which the
    Canadian publishers complain has arisen out of the arrangement
    sanctioned by Her Majesty’s Government in 1847, under which
    United States reprints of English works entitled to Copyright
    in the United Kingdom were admitted into Canada on payment of
    an import duty, instead of being, as in the United Kingdom,
    absolutely prohibited as illegal.”...

A circular by Mr. Purday contains the following:—

    A fact transpired only a few days since of an order being
    sent for some of the musical works published in Bond-street,
    on which it was stated that they _must be “American printed
    copies”_.... It is said that the Americans have the means of
    disposing of 30,000 or 40,000 copies of any popular book or
    song they choose to reproduce. This, of course, is a fine
    premium for supplanting the English publisher in the sale of
    his own Copyright works in his own colonies.




FROM A MANUSCRIPT STATEMENT BY MR. PURDAY.


The Act of 1 and 2 Vict., c. 69, was passed into a law under the title
of “An Act for securing to Authors in certain cases the benefit of
International Copyright,” the date of which was July 31, 1838. The 14th
section is in these words: “And be it enacted, that the author of any
book to be, after the passing of this Act, _first published out of Her
Majesty’s dominions_, or his assigns, _shall have no Copyright therein
within Her Majesty’s dominions_, otherwise than such (if any) as he may
become entitled to under this Act.” Section 9 says that no protection
of Copyright shall be given to a foreign author, unless such protection
shall be reciprocated to an English author by the country to which the
foreign author belongs. Now, nothing can be clearer than that the Act of
5 and 6 Vict., c. 45, never contemplated giving protection to a foreign
author; but, on the contrary, that it was passed solely for the benefit
of English authors.... At last the whole matter was brought before the
House of Lords, where it was decreed that a foreign author was not an
author within the meaning of the Acts of Parliament, and could neither
claim any Copyright himself nor assign any to an English subject, unless
he was resident in the British dominions at the time he sold his work,
and published it there before there was any publication abroad. This,
after eleven years of litigation by various parties, among whom my
brother was the most persistent defendant, he being perfectly convinced
that if the subject came to be thoroughly investigated, no such claims as
were set up by the monopolists could be maintained either at common law
or in equity. The House of Lords, however, were not called upon to decide
what was meant by the term _residence_. This, therefore, gave rise to an
attempt on the part of an English bookseller to contrive a scheme which,
to the not very creditable honour of English jurisprudence, as it appears
to my humble understanding, succeeded. The scheme was this: An American
authoress of little repute wrote a novel, one copy of the manuscript of
which, it is said, was handed over, for a consideration, to this English
bookseller, to publish in England; the work was got ready on this side
of the Atlantic as well as on the other side, and, after agreeing as to
the date of entry at Stationers’ Hall, and the publication of the same in
London, the lady was desired to go over the Victoria-bridge into Canada,
one of the British dominions, and remain there a few hours or days, while
the publication took place in London; then she was to go back again for
the protection of the same work, as a Copyright, in her own country.
Meanwhile, another English publisher, hearing that such an artifice was
about to be attempted, procured an American copy of the said work, and
republished it in a cheap form. The consequence was, that an application
for an injunction was applied for by the first party, which was granted,
and appealed against to the Lords Justices, who gave it as their opinion
that the word “author” in the Act of Parliament was to be interpreted in
its widest sense, and that there was no limitation to that word in the
Act of Parliament; therefore, it was maintained that _any_ author could
have a Copyright in England who complied with the requisitions of the
Act, and this defective scheme was confirmed by Lord Chancellor Cairns,
who remarked that none of the former decisions had stated that it was
other than necessary to be in the British dominions during the time of
the publication of the work. This device may have facilitated the desire
for an international law upon a righteous foundation, now so loudly
advocated in America.

In the judgment given in the House of Lords, in the case of Boosey’s
assumption to the exclusive right of printing the opera of Bellini,
the subject of residence in England was debated, and Lord St. Leonards
used these remarkable words: “Now the American Legislature have no such
difficulty. They have expressly enacted that Copyright there shall be
confined to natives, or persons resident within the United States. Those
are the express words of their statute.” And we may remark, farther, that
unless an alien author has resided at least twelve months in America, and
has made a declaration in these words, “I do declare on oath that it is
_bonâ fide_ my intention to become a citizen of the United States,” &c.,
he cannot obtain the privilege of Copyright in anything he may publish
there. This conflict of opinion must necessarily end, therefore, in a new
Act of Parliament, which has been long needed to settle this and other
much-vexed questions of Copyright.




LETTER FROM THE SAME.


                              24, Great Marlborough-street, June 15, 1869.

Dear Sir,—I think your suggestion of the payment of a royalty upon the
publication of an author’s work, if made mutual in both America and
Great Britain, would go far to reconcile the two nations to abandon the
present unfair reprisals; more especially if it were left to the option
of any publisher to reproduce such works in the form most suited to his
particular trade. Some publishers choose to publish in one form, and some
in another, more or less expensive, according to the taste or want of
their customers. It is true, there might be some difficulty in arranging
the percentage per copy upon such a scheme; but that might be regulated
according to the price and style of getting up of the work, which should
always be determined upon before the work is issued.

The question of Copyright in music is one which presents features
appertaining to itself exclusively. One feature which it shares along
with the other fine arts is this great fact: that music is a universal
language, and addresses itself equally to all nations. Its range,
therefore, is far wider than literature. It needs no translation.

The taste for music is more widely diffused than that for painting and
sculpture, from which it differs in a way that causes very considerable
embarrassment when the question of Copyright comes to be particularly
dealt with. Like paintings and statues, music may be reproduced in a
permanent form; but, unlike them, the chief value of its Copyright
privilege is reproduction in sounds, and, therefore, in a form
unsubstantial and transient. He, therefore, who would deal satisfactorily
with this branch of the wide question of Copyright has to provide for a
demand, and overcome difficulties, such as do not belong to literary and
artistic Copyright. But, still further, music—say that of an opera—may be
separated into parts without serious diminution of its revenue-bearing
value. Once more, there is the _libretto_; it belongs to the range of
literature. Questions, therefore, arise, and must be provided for, with
respect to the affinity of that part with the music, its reproduction in
the form of translation, and its being, as it occasionally is, the work
and property of an author other than the composer of the music.

There is still so much uncertainty, approaching to confusion, as to what
really is the law, especially with regard to international Copyright,
in this branch, that thorough revision and immediate international
negotiations are absolutely necessary.

The laws of Copyright should be divested of all ambiguity and superfluous
legal verbiage. In fact, they should be made so plain that “he that runs
may read,” and understand them. The payment of a royalty on foreign works
is not a new thing here. Chappell pays 1s. a copy, besides a considerable
sum for the Copyright, of the last work of Rossini—viz., the “Messe
Solennelle,” for the exclusive selling of the work, and for the right of
performing it here. Any other information I can give you I shall be happy
to afford.

                    I am, dear Sir, yours obediently,

                                                             C. H. PURDAY.

To R. A. Macfie, Esq., M.P.




EXTRACTS FROM CORRESPONDENCE ON COPYRIGHT LAW IN CANADA.

LAID BEFORE THE CANADIAN PARLIAMENT BY COMMAND OF HIS EXCELLENCY THE
GOVERNOR-GENERAL.


_Extract from a Report of a Committee of the Honourable the Privy Council
of Canada, approved by His Excellency the Governor-General in Council, on
the 27th May, 1868._

“On the recommendation of the Honourable the Minister of Customs, the
Committee advise an uniform _ad valorem_ duty throughout this Dominion
of 12½ per cent., being the rate fixed and collected in the Province of
Canada, previous to the Confederation of the Provinces—and to establish
such regulations and conditions as may be subsistent with any Act of
the Parliament of the United Kingdom then in force as may be deemed
requisite and equitable with regard to the admission of such books, and
to the distribution of the proceeds of such duty to or among the party or
parties _beneficially_ interested in the Copyright.”


(_From Memorandum by the Minister of Finance._)

“Not one-tenth part of the reprints which find their way to Canada are
entered at the Custom-house, or pay duty.... It is proposed, in order
perfectly to secure the English author, that every Canadian publisher who
reprints English Copyrights should take out a licence, and that effectual
practical checks should be interposed, so that the duty on the number of
copies actually issued from the press should be paid into the Canadian
Government by Canadian publishers for the benefit of the English authors.
It is believed that the English authors would benefit enormously by the
proposed change. At present the amount received by Canada for duty on
English Copyrights, and paid over by Canada to the Imperial Government
for the benefit of English authors, is a mere trifle.”


(_From Mr. Lovell._)

                                                 “Montreal, June 11, 1868.

“In 1849, I believe, the Government of Canada, with the sanction of Her
Majesty the Queen, gave United States publishers the right to bring
reprints of English Copyright works into this country on payment of
Customs duty of 15 per cent., which has since been reduced to 12½ per
cent., the proceeds of the duties to be forwarded to the English authors
as a compensation for the privileges secured to the American publishers.

“The people of the Dominion, and especially the printing and publishing
interests, feel that they ought to possess at least equal privileges to
those conceded to the foreigner. There are several establishments in
the Dominion that would esteem it a great boon to be allowed to reprint
English Copyrights on the same terms as are now secured to United States
publishers, and would gladly pay the 12½ per cent. to the English authors
on the _total number_ of copies printed, sure to be very considerable. At
present only a few hundred copies pay duty, but many thousands pass into
the country without registration, and pay nothing at all; thus having
the effect of seriously injuring the publishers of Great Britain, to the
consequent advantage of those of the United States.”


(_Extract from Letter from Sir Louis Mallet to the Under-Secretary of
State, C.O._)

“It is obvious that, looking to the geographical position of the United
States and the North American Confederation, any arrangement with respect
to Copyright which does not apply to both must be always imperfect and
unsatisfactory, and it is therefore extremely desirable, if possible,
that the Canadian question should be considered in connexion with any
negotiations conducted with the United States Government.

“Another serious objection to the sanction by Her Majesty’s Government
of such a proposal appears to my Lords to be, that, while the public
policy of the mother-country enforces an absolute monopoly in works
of literature for a term of years, it is very undesirable to admit in
British Colonial possessions an arrangement which, whatever advantages
it may possess (and my Lords fully admit that much may be said in its
favour), rests upon a wholly different principle.

“It would be difficult, if such a principle were admitted in the British
Colonies, to refuse to recognise it in the case of foreign countries, and
thus it might come to pass that the British public might be called upon
to pay a high price for their books, in order to afford what is held to
be the necessary encouragement to British authors, while the subjects of
other countries and the Colonial subjects of Her Majesty would enjoy the
advantages of cheap British literature provided for them at the expense
of the inhabitants of the United Kingdom.”


(_Extract from a Paper by the Minister of Finance on the Copyright-Law in
Canada._)

“The consequence of this anomalous state of the Law is that Canada
receives large supplies of American reprints of English Copyright books,
which are sold at a much higher rate than if printed in Canada; while, at
the same time, so generally is the payment of the 12½ per cent. Customs
duty evaded, and so trifling is the whole amount realised from that
source (the total received last year for the whole Dominion of Canada
being only $799.43, or 164_l._ 5s. 3d. sterling, the average of the
preceding four years being only 115_l._ 1s. 3d., sterling), that so far
as regards the pecuniary or other interests of English authors, for whose
protection the duty was imposed and in whose behalf it is collected, the
effect is practically the same as if the reprints were avowedly admitted
duty free....

“It is believed that if this privilege were extended to Canadian
publishers, they would avail themselves of it to a very large extent, and
as the Excise duty of 12½ per cent. could, under proper regulations, be
very easily levied, a substantial revenue would accrue therefrom for the
benefit of English authors; and further, that a great impetus would be
given to the interests of printers, publishers, paper manufacturers, type
founders, and other important kindred branches of material industry, and
indirectly to the interests of literature and literary men....

“An American or any other foreign author, by publishing his work first
in the United Kingdom, may obtain for himself all the benefits of the
English Copyright-Law. One of those benefits, as the law now stands, is
to prohibit its reprint in any portion of Her Majesty’s dominions out of
the United Kingdom. He can equally procure its Copyright in the United
States, and the consequence is that the price of literature is enhanced
to British subjects in all Her Majesty’s Colonial possessions, since to
them and to them only can the prohibition to republish apply or be made
effectual.

“England does not confine the protection which she thus extends to her
own authors. The foreign author is protected against all her Colonial
subjects, provided he publishes first within the confines of Great
Britain and Ireland. She will not recognise a publication in a Colonial
possession as a compliance with the Copyright Act, but limits the place
of publication to the United Kingdom.

“Such the undersigned understands to have been the solemn interpretation
of the law by the House of Lords in the recent case of ‘Routledge and
Lowe’ (‘New Law Report,’ Appeal Cases, vol. ii., pp. 100-121), and he
would very strongly call attention to the unfair position in which the
policy of that law places the Canadian publisher and the Canadian public.

“The mere circumstance of the publishing in the United Kingdom gives
the author a monopoly throughout the entire area of the British
dominions—that author, in the opinion of the then Lord Chancellor Cairns,
need not be a native-born subject of the Crown; he need not be an alien
friend sojourning in the United Kingdom; he need not be sojourning
in a British Colony, but he may be a foreigner residing abroad. This
protection is afforded, in the language of Lord Cairns, to induce the
author to publish his work in the United Kingdom.

“If the policy of England, in relation to Copyright, is to stimulate, by
means of the protection secured to literary labour, the composition of
works of learning and utility, that policy is not incompatible with such
a modification of law as will place the Colonial publisher on a footing
of equality not only with the publisher in the United States, but even
with the publisher in the United Kingdom....

“If the rate of duty, whether import or excise, were inadequate, it would
be an equally reasonable argument against the extension of the law; and
in that case the rate could be augmented.”




TENDENCIES OF COPYRIGHT AMENDERS.


That pretensions under Copyright are becoming so formidable as to
demand very serious attention on the part of statesmen and of all who
desire to maintain the integrity of our national inheritance of a
world-wide, heartily-united empire, and imperial freedom from odious,
inquisitorial, and impracticable restraints, especially such as might
hinder intellectual and moral development, will be evident to any person
who takes pains to study and follow out to their necessary consequences
the provisions contained in the following transcripts from a Bill lately
introduced by an ex-Lord Chancellor, “for Consolidating and Amending the
Law of Copyright in Works of Fine Art:”

    _Fine Arts Copyright Consolidation and Amendment._ [32 Vict.]

    Design.—An original conception represented by the author
    thereof in any work of fine art.

    Drawing or Painting.—Every original drawing or painting, made
    in any manner and material, and by any process.

    Photograph shall mean and include every original photograph.

    Sculpture.—Every original work, either in the round, in relief,
    or intaglio, made in any material, and by any process.

    Engraving.—Every original engraving and lithograph made upon a
    plate, block, or slab, of any material, by any process, whereby
    impressions may be taken from such plate, block, or slab, and
    the impressions taken from the same.

    Work of Fine Art.—Every drawing, painting, photograph, work of
    sculpture, and engraving as herein-before interpreted.

    Extending to all parts of the United Kingdom of Great Britain
    and Ireland, the Channel Islands, the Isle of Man, and _all
    the colonies_ and possessions of the Crown which now are, or
    hereafter may be, created or acquired.

    3. The author of every original work of fine art, if made, or
    first sold, after the commencement of this Act, such author
    being a British subject, or resident within any part of the
    British dominions at the time such work shall be made or first
    sold, and the assigns of such author, shall have the Copyright
    of sole and exclusive right of copying, reproducing, and
    multiplying such work, and the design thereof, in the British
    dominions, by any means, and of any size, for the term of the
    natural life of such author, and thirty years after his death,
    but subject to the following conditions and restrictions; (that
    is to say), &c.

    9. If the author of any work of fine art in which there shall
    be subsisting Copyright, after having become divested of such
    Copyright, or if any other person, not being the proprietor for
    the time being of the Copyright in any work of fine art, shall
    by any means unlawfully repeat, copy, imitate, or otherwise
    multiply for sale, hire, exhibition, or _distribution_, or
    cause or procure to be repeated, copied, imitated, or otherwise
    multiplied for sale, hire, exhibition, or distribution,
    any such work, or the design thereof, _or any part of such
    design_, or, knowing that any such repetition, copy, or other
    imitation has been unlawfully made, shall _import_ or export
    into or out of _any part of the British dominions_, or sell,
    publish, let to hire, exhibit, or distribute, or offer for
    sale, hire, exhibition, or distribution, or cause or procure
    to be so imported, or exported, or sold, published, let to
    hire, distributed, or offered for sale, hire, exhibition, or
    distribution, any unlawful repetition, copy, or imitation of
    any such work, or of the design thereof, such person for every
    such offence shall forfeit to the registered proprietor for the
    time being of the Copyright thereof a sum not exceeding twenty
    pounds, and not less than two pounds, for every first offence,
    and not less than five pounds, for every subsequent offence, &c.

    11. All repetitions, copies, or imitations of any work of fine
    art, or the design thereof, wherein there shall be subsisting
    Copyright under this Act, and which, contrary to the provisions
    of this Act, shall have been made in any foreign State, are
    hereby absolutely prohibited to be imported into any part of
    the British dominions, except by or with the consent of the
    registered proprietor of the Copyright thereof, or his agent
    authorised in writing; and if the registered proprietor for the
    time being of any such Copyright or his agent shall declare,
    _or if any officer of Her Majesty’s Customs shall suspect_,
    that any goods imported are prohibited repetitions, copies,
    or imitations of any such work of fine art, or of the design
    thereof, then _such goods may be detained_, unpacked, and
    examined by the officers of Her Majesty’s Customs.

    12. The _Commissioners of Customs_ shall cause to be made, and
    _publicly exposed at the several ports_ of the United Kingdom,
    _and in Her Majesty’s possessions abroad, printed lists of all
    works of fine art wherein Copyright shall be subsisting_, and
    as to which the registered _proprietor_ for the time being of
    such Copyright, _or his agent_, shall have given notice in
    writing to the said Commissioners that such Copyright exists,
    stating in such notice when such Copyright expires, and shall
    have made and subscribed a declaration before the collector of
    the Customs, or any justice of the peace, at some port or place
    in the United Kingdom or in Her Majesty’s possessions abroad,
    that the contents of such notice are true. The provisions
    contained in the Acts now in force, or at any time to be in
    force, regarding Her Majesty’s Customs, as to the application
    to the courts and judges by any person aggrieved by the entry
    of any book in the lists of books to be made and publicly
    exposed by the said Commissioners under the said Acts, and
    the expunging any such entry, shall apply to the entry of any
    work of fine art in the lists thereof to be made by virtue of
    this Act, in the same manner as if such provisions were herein
    expressly enacted, with all necessary variations in relation to
    such last-mentioned lists, &c.

    13. _Every person who shall import_ or export, or cause to be
    imported or exported, into or out of any part of the British
    dominions, or shall _exchange_, publish, sell, let to hire,
    _exhibit_, or _distribute_, or offer, or hawk, or carry
    about, or keep for sale, hire, exhibition, or distribution,
    any unlawful copy, repetition, or imitation of any work of
    fine art, in which, or in the design whereof, there shall be
    subsisting registered Copyright, shall be bound, on demand in
    writing, delivered to him or left for him at his last known
    dwelling-house or place of business, by or on behalf of the
    registered proprietor for the time being of such Copyright,
    to give to the person requiring the same, or his attorney
    or agent, within forty-eight hours after such demand, _full
    information in writing of the name and address of the person
    from whom, and of the times when, he shall have imported,
    purchased, or obtained_ such unlawful copy, repetition, or
    imitation, also the number of such copies, repetitions, or
    imitations which he has obtained, and also to produce to the
    person requiring such information all invoices, books, and
    other documents relating to the same; and it shall be lawful
    for any justice of the peace, on information on oath of such
    demand having been made, and of the refusal or neglect to
    comply therewith, to summon before him the person guilty of
    such refusal or neglect, and on being satisfied that such
    demand ought to be complied with, to order such information to
    be given and such production to be made within a reasonable
    time to be fixed by him.

    14. Upon proof by the oath of _one credible person_ before _any
    justice of the peace_, court, sheriff, or other person having
    jurisdiction in any proceeding under this Act that there is
    reasonable cause to _suspect_ that _any person has in his
    possession_, or in any house, shop, or other place for sale,
    hire, distribution, or public exhibition, any copy, repetition,
    or imitation of any work of fine art in which, _or in the
    design whereof_, there shall be subsisting and registered
    Copyright under this Act, and that such copy, repetition, or
    imitation has been made without the consent in writing of the
    registered proprietor of such Copyright, it shall be lawful
    for such justice, court, sheriff, or other person as aforesaid
    before whom any such proceeding is taken, and he or they is and
    are hereby required to _grant his or their warrant, to search
    in the daytime such house_, shop, or other place, and if any
    such copy, repetition, or imitation, or any work which may be
    reasonably suspected to be such, shall be found therein, to
    cause the same to be brought before him or them, or before some
    other justice of the peace, court, sheriff, or other person as
    aforesaid, &c.

    15. If any person, elsewhere than at his own house, shop,
    or place of business, shall hawk, carry about, offer,
    utter, _distribute_, or sell, or keep for sale, hire, or
    _distribution_, _any_ unlawful copy, repetition, or _colourable
    imitation_ of any work of fine art in which, or in the design
    whereof, there shall be subsisting and registered Copyright
    under this Act, all such unlawful articles may be _seized
    without warrant, by any peace officer, or the proprietor of
    the Copyright, or any person authorised by him_, and forthwith
    taken before any justice of the peace, court, sheriff, &c.

    23. Under this Act there shall be kept at the hall of the
    Stationers’ Company by the registrar appointed by the said
    company for the purposes of the Act passed in the sixth year of
    the reign of her present Majesty, intituled “An Act to amend
    the Law of Copyright,” three several books or sets of books,
    which shall be called as follows:

        (1.) The register of proprietors of Copyright in
        original drawings and pictures:

        (2.) The register of proprietors of Copyright in
        original photographs and engravings:

        (3.) The register of proprietors of Copyright in
        original works of sculpture.

    In the first of such registers shall be entered a memorandum of
    every Copyright, _or of any limited legal interest therein_, to
    which any person shall claim to be entitled under this Act in
    any original drawing or painting, and also of _any subsequent
    assignment_ of such Copyright or _limited legal interest
    therein_; and such memorandum shall contain a statement of the
    several particulars required by the form applicable for that
    purpose in Part I. of the third schedule to this Act; and in
    addition thereto the person registering shall annex to the
    memorandum under which he requires the entry to be made an
    outline, sketch, or photograph of the drawing or painting to
    which such memorandum refers, &c.

⁂ Again adverting to the case of Ireland, let it be remembered it was
only so late as 1836 that an Act was passed “to extend the protection of
Copyright in prints and engravings to Ireland.”

This Bill of Lord Westbury’s, after having been referred to a Select
Committee of the House of Lords, has been withdrawn, but only for the
present Session. The reason for withdrawal is found in amendments
recommended by the Committee, one of which is that it should extend only
to the United Kingdom and Channel Islands. The subjoined extracts from a
printed defence of the Bill, by D. Roberton Blaine, Esq., will be read
with interest, as showing how influential is the quarter whence the Bill
emanates, and not less on account of their allusion to Patent-right and
their other interesting contents.

    This Bill has been prepared by direction of the Council of the
    Society of Arts, Manufactures, and Commerce, in consequence of
    a memorial having been presented to the Council, signed by a
    considerable number of the most eminent artists and publishers
    resident in London....

    There is no Copyright in the _ideas_ embodied in a work of
    literature or of fine art....

    It is quite otherwise according to our Patent-Laws. Under them
    the _idea_ of an author is everything, so to speak, and is
    rigidly protected. Thus, for example, suppose A produces a new
    manufacture by means of a very imperfect and clumsy machine,
    or chemical process, which he invents and patents; and suppose
    afterwards that B invents a very perfect and simple machine, or
    chemical process, whereby he can produce the same manufacture
    as A, but better and cheaper than his. In such a case the
    Patent-Laws prohibit B from making any use of his improvement
    for making the manufacture of A during the continuance of his
    Patent, unless with his consent. This arises from its being
    a leading _principle_ of our Patent-Laws, that where a new
    invention has been secured by a valid and existing Patent no
    one is allowed during the continuance of that Patent to produce
    _the same results by a mechanical or chemical equivalent_.
    Hence the great source of complaints and of the litigation
    arising under our Patent-Laws. Thus it is that a patented
    manufacture precludes any improvements therein except by the
    patentee, or with his consent, during the term of his Patent....

    In Italy, at the expiration of such forty years, although any
    one may then make and sell copies of the work, the person doing
    so must, during a second term of forty years, annually pay to
    the proprietor of the Copyright 5 per cent. (calculated at the
    _published_ price) upon all copies sold by the person so making
    and selling such copies. As to France, her Copyright-Laws are
    expressly extended to all her colonies. And, by the 8th Article
    of Her Majesty the Queen’s Copyright Convention with France,
    dated 3rd November, 1851, _reciprocal_ protection is agreed to
    be given in favour of Copyright works _first_ published in “the
    territories of France,” or in “the British dominions.” This
    appears to show that both States clearly intended that such
    reciprocal protection should extend to their colonies. It is
    also stipulated by the 7th Article that “pirated works _shall
    be seized_ and destroyed.” Now the French law very justly
    declares the piracy of Copyright property to be a _crime_
    (_delit_), and provides rapid and effectual means for enabling
    the proprietor of the Copyright to seize both the pirate
    and the fraudulent copies, plates, &c., in his possession.
    Yet, according to the present state of the British Artistic
    Copyright-Laws, no such powers of seizure, as expressly agreed
    by Her Majesty the Queen’s Convention, exist in the British
    dominions; nor does any protection whatever for _artistic_
    Copyright works extend beyond the United Kingdom; no, not even
    to the Isle of Man, or to the Channel Islands!

This important and novel subject is likely soon to receive useful
illustration from a Parliamentary return to be moved for by the Right
Hon. T. H. Headlam. From another of that gentleman’s Returns a
suggestive extract is also subjoined.

It contains evidence that long ago impatience of existing restraints
was in vigorous action in the British Colonies—evidence that payment of
authors by royalties is a system that commands State concurrence—and
evidence how over-ready the State is, or how circumstances are formed so
as to compel it, to undertake work for authors and publishers by means
of its Custom-house officers. On this last point I am happy also to
produce an important paper kindly furnished by Michael Daly, Esq., of Her
Majesty’s Customs. Mr. Daly’s note deserves to be pondered in prospect
of the re-appearance next Session of the Board of Trade’s “Trade-Marks
Registration Bill.”[11]

The extracts which I have agglomerated show that the idea of employing
officers of _Excise_ as well as those of Customs is seriously propounded,
but this is by no means all the useful information they convey.

[11] Would it not be well to confine registration to _names_ of firms or
premises without recognising _marks_?




COLONIAL DUTIES ON COPYRIGHT WORKS.


_Return of all the Colonies and British Possessions in favour of which
Orders in Council have been issued under the Act 10 and 11 Vict., c.
95, suspending the Prohibition of Importation of Reprints of British
Copyright Works._

    NEW BRUNSWICK.—An _ad valorem_ duty of 20 per cent. on the
    _bonâ fide_ price of the publication, imposed on importation;
    such duty to be transmitted through Her Majesty’s Government
    for the benefit of the author.

    NOVA SCOTIA.—An _ad valorem_ duty of 20 per cent. to be applied
    in like manner.

    PRINCE EDWARD ISLAND.—An _ad valorem_ duty of 20 per cent.,
    currency of the island, imposed on similar terms.

    BARBADOES.—An _ad valorem_ duty of 20 per cent. to be remitted
    to the author.

    BERMUDA.—An _ad valorem_ duty of 15 per cent. on the value of
    such reprints, imposed on the like conditions, a deduction of 5
    per cent. on the amount to be made, for the remuneration of the
    officers collecting the duty.

    BAHAMAS.—A duty of 20 per cent. on the value of the publisher’s
    wholesale price; nine-tenths of the amount collected to be paid
    to the proprietors of the Copyright on their application to the
    Governor.

    NEWFOUNDLAND.—An _ad valorem_ duty of 20 per cent. to be paid
    over to the author.

    ST. CHRISTOPHER.—An _ad valorem_ duty of 20 per cent. to be
    remitted in like manner.

    ANTIGUA.—An _ad valorem_ duty of 25 per cent. to be applied in
    like manner, 5 per cent. to be deducted for remuneration of the
    treasurer collecting the duty.

    ST. LUCIA.—An _ad valorem_ duty of 20 per cent. to be applied
    in like manner, without deduction.

    CANADA.—An _ad valorem_ duty not exceeding 20 per cent.
    imposed, to be applied in like manner.

    BRITISH GUIANA.—An _ad valorem_ duty of 20 per cent., after
    deducting 5 per cent., to be remitted to the author.

    ST. VINCENT.—An _ad valorem_ duty of 20 per cent. to be applied
    in similar manner.

    MAURITIUS.—A poundage of 20 per cent. to be paid, to be
    deposited in the Colonial Treasury, there to be kept at the
    disposal of the British authors of such works.

    GRENADA.—An _ad valorem_ duty of 20 per cent. to be remitted
    for the benefit of the author.

    JAMAICA.—An _ad valorem_ duty of 15 per cent. An _ad valorem_
    duty of 20 per cent.

    CAPE OF GOOD HOPE.—An _ad valorem_ duty of 20 per cent. to be
    applied in similar manner.

    NEVIS.—An _ad valorem_ duty of 15 per cent. to be applied to
    the benefit of the author, after deducting 5 per cent. for the
    remuneration of the treasurer collecting the duty.

    NATAL.—An _ad valorem_ duty of 20 per cent. to be remitted to
    the registered proprietor of the Copyright.




EXAMINATIONS BY CUSTOMS’ OFFICERS.


The officers of Customs are compelled to discharge various duties beyond
those connected with the collection and protection of the Revenue. Among
others they have to take care that foreign goods, on their importation,
do not bear the mark or brand of any British maker, or such marks or
brands as would be likely to give them a British character. All goods so
marked and branded are, by 16 and 17 Vict., cap. 107, sec. 44, prohibited
to be imported into this country. Cases are constantly occurring where
such goods have to be dealt with by the Customs’ authorities. In some
instances the goods are confiscated, in others the brands or labels are
ordered to be removed, upon which the goods are delivered to the owner,
either with or without fine; and in other cases they are ordered to be
returned to the port whence they were imported. But why should this duty
devolve upon the Customs’ officers? It is an extremely disagreeable one,
involving much trouble to the department and vexation to importers. If
a manufacturer or dealer in this country infringes the right of another
by using his mark or brand, he has his remedy in a court of justice;
but he has no right to enter a factory or warehouse, to open packages
and make an indiscriminate search, with or without grounds of suspicion
that his brands have been placed on the contents of the packages. Yet,
practically, this is really the case with regard to the Customs’ right
of search for prohibited marks and brands. Why not let the goods pass
without reference to brands or marks? Leave the owner of the marks to his
remedy in law; and the vendor of the goods bearing such forged or false
brands to the risk and penalty which he thus incurs. In this case the
fraudulent dealer only will be the sufferer, while the innocent will be
saved the vexation of having his goods pulled about at the Custom-house;
and the Customs department will be relieved of an extremely disagreeable
and troublesome duty. As to the brand, not those of any particular maker,
but in their general character purporting the goods to be of British
manufacture, but very little harm can result to any particular interest
from the use of such marks. It will take something more substantial than
such mere fictions to ruin the trade of the country; but if better goods,
even if they be of foreign origin, can be obtained at the same prices as
those paid for British, then so much the better for the consumer. Would
it not be well, also, to relieve the Customs officers of the duty of
searching for pirated works under the Copyright Act? Why not deal with
the vendors here of such works, if reprinted abroad, in like manner as if
reprinted here?




THE BRITISH AND FOREIGN BOOK TRADE.


The following figures, extracted from a recent Parliamentary Return,
while they show a highly satisfactory ratio of increase, will probably
convince the commercial reader that the International Book Trade of
Christendom is yet in its infancy, and, perhaps, that the swaddling-bands
and close confinement of monopoly should be exchanged for a freer and
more natural system of nursing and protection:—

BOOKS PRINTED IN THE UNITED KINGDOM, EXPORTED THEREFROM.

  ---------------------+-------------------------+-------------------------
      COUNTRIES        |       QUANTITIES.       |      DECLARED VALUE.
  to which Exported.   +-------+--------+--------+--------+--------+-------
                       | 1828. |  1848. |  1868. |  1828. |  1848. |  1868.
  ---------------------+-------+--------+--------+--------+--------+-------
                       | Cwts. |  Cwts. |  Cwts. |    £   |    £   |    £
  Foreign Countries:—  |       |        |        |        |        |
  United States        |   605 |  3,158 | 18,379 | 14,612 | 47,955 | 184670
  Other Foreign        |       |        |        |        |        |
    Countries          | 1,449 |  2,003 | 10,540 | 33,319 | 30,678 | 181350
  ---------------------+-------+--------+--------+--------+--------+-------
  Total                | 2,054 |  5,161 | 28,919 | 47,931 | 78,633 | 366020
                       +-------+--------+--------+--------+--------+-------
  British Possessions:—|       |        |        |        |        |
  Australia            |   148 |  1,968 | 18,583 |  3,933 | 27,249 | 148413
  British North America|   364 |  1,131 |  6,919 |  8,178 | 15,156 |  64139
  Other British        |       |        |        |        |        |
    Possessions        | 1,552 |  4,026 |  6,987 | 41,072 | 71,114 | 105671
                       +-------+--------+--------+--------+--------+-------
  Total                | 2,064 |  7,125 | 32,489 | 53,183 | 113519 | 318223
                       +-------+--------+--------+--------+--------+-------
  Aggregate of Foreign |       |        |        |        |        |
    Countries and      |       |        |        |        |        |
    British            |       |        |        |        |        |
    Possessions        | 4,118 | 12,286 | 61,408 | 101114 | 192152 | 684243
  ---------------------+-------+--------+--------+--------+--------+-------

QUANTITIES and VALUE, with the Weights and Moneys rendered into English
Equivalents, of Printed Books Imported into and Exported from the United
Kingdom and Foreign Countries in the latest Year for which Returns have
been received and the Tenth Year previous thereto:—

  --------------------------+-------------------+---------------------
        COUNTRIES.          |  Imported (for    |     Exported
                            | Home Consumption).| (Domestic Produce).
                            +---------+---------+---------+-----------
                            |  Cwts.  |    £    |  Cwts.  |    £
  --------------------------+---------+---------+---------+-----------
  United Kingdom[12] { 1858 |   5,971 |  83,598 |  12,286 | 192,152
                     { 1868 |  10,695 | 137,580 |  61,480 | 684,243
                            |         |         |         |
  Russia[13]         { 1857 |   Not   | 100,718 |   Not   | Not stated
                     { 1867 |  stated |  73,588 |  stated |  18,813
                            |         |         |         |
  Sweden[13]         { 1856 |   Not   |   6,938 |   Not   |   1,697
                     { 1866 |  stated |   8,780 |  stated |   3,569
                            |         |         |         |
  Zollverein         { 1856 |  21,098 |   Not   |  38,275 |   Not
                     { 1866 |  31,485 |  stated |  67,376 |  stated
                            |         |         |         |
  Holland            { 1857 |   4,349 |  46,126 |   2,437 |  38,363
                     { 1867 |   7,228 |  76,659 |   3,555 |  37,714
                            |         |         |         |
  Belgium            { 1856 |   5,612 |  69,750 |   4,063 |  52,228
                     { 1866 |   Not   |  97,040 |   Not   |  48,760
                            |  stated |         |  stated |
                            |         |         |         |
  France             { 1857 |   5,438 |  95,224 |  38,542 | 510,352
                     { 1867 |  11,942 | 201,280 |  40,887 | 522,374
                            |         |         |         |
  Spain[13]          { 1854 |      Not stated   |   2,060 |  19,383
                     { 1864 |   1,924 |   8,323 |     674 |   8,929
                            |         |         |         |
  Italy                1865 |   6,108 |  56,464 |   1,678 |  15,375
                            |         |         |         |
  United States      { 1857 |   Not   | 181,980 |   Not   |  57,843
                     { 1867 |  stated | 246,539 |  stated |  71,386
  --------------------------+---------+---------+---------+-----------

[12] Part Re-Exported.

[13] For these Countries the Total Imports and Exports are stated.

The total weight of the Book Trade of Christendom appears to be less
than 200,000 cwts., which, taken at 1 lb. per volume, makes only about
20,000,000 of volumes, about a fourth part of which is sent from this
country to the North American and Australian “Markets.”




The _Beehive_, of 31st July, has an article on the meeting referred to in
the Prefatory Note. The following is an extract, to which three notes are
respectfully subjoined:—

    ... But to abolish all protection to original inventions would
    be, as Mr. Paterson justly contended, to hand over all the
    profits arising from such inventions to the capitalist.[14]
    This speaker would make the granting of Patents free from
    charge, and lay a tax on the profits of the contrivance
    patented. Mr. Macfie, the Member for Leith, made a decided hit
    when he pointed to the absence of royalties abroad, while at
    home they lie upon us with a crushing weight; and, if we cannot
    find ease without following the example of Switzerland in
    abolishing Patent-Laws, and of Holland and Germany by declaring
    against them, there will be no help for it.

    But when Mr. Macfie “denies that the inventor has any exclusive
    right to his invention,” he makes an assertion that it is in
    the power of any inventor practically to disprove. Say that
    A has found out an invention of value, or, which is the same
    thing for the purpose of argument, thinks he has; he meets
    with the Member for Leith, who says, “Come, my fine fellow,
    out with that invention of yours, for the general good; you
    have no exclusive right to it.” What would A be likely to say
    in reply? “Haven’t I? Let me choose to keep it to myself, and
    who can hinder me?” While, however, it is perfect nonsense
    to deny a man’s right to the ideas of his own mind,[15] the
    practical question is another thing; and it behoves us all to
    remember that we are members of one society, and that a society
    called at least Christian. Nevertheless, if A is to make his
    contribution to the general good, all the rest of the alphabet
    are bound to reciprocate his liberality.[16]...

[14] For capitalist, if there were no Patents, why not say _consumer_?

[15] It is _exclusive_ right, not at all his personal right, to use, and
right to conceal, if he has the will and power, that is denied.

[16] These concluding sound reflections are eminently suggestive.




INDEX.


  Abuse of Patents, 39, 46, 47

  Agricultural Interest Concerned, 51

  ARMSTRONG, Sir W., C.B.
    See also “Quotations”, 237

  _Austria_, 47, 51

  Authors’ Motives, 298
    Stamp, 297
    Interest, 293


  Bad working of our Patent System in Prussian Eyes, 189

  _Baden_, 192

  _Bavaria_, 331

  “Beehive”, 332

  _Belgium_, 66, 124, 193, 198, 201, 209, 213, 278, 331

  BENARD, M., 124, 150, 175

  BERGMANN, VAN ZINNICQ, 196, 223

  BISMARCK, Count VON, his Message on Patents, 185

  _Brunswick_, 192

  Buying up Patents, 27, 39, 41, 43, 112, 139


  _Canada_, Copyright in, 307, 309

  _Canadian_ Parliament, Correspondence on Copyright, 316
    Patent-Law, 290, 297

  Capitalists, 26, 43, 73, 206, 240, 257

  CHEVALIER, M., 164

  CASES AND ILLUSTRATIONS:—
    Alpaca, 38
    Aluminium, 37
    Aniline, 169, 177
    Bicycles, 203
    _Bleu Francais_, 171
    Boot-heels, 37
    Bullets, 266
    Buttons, 38
    Candles, 27
    Capsules, 34
    Carding Machines, 138
    Colour, 66
    “Cock-spurs”, 41
    Cooking, 46
    Copper, 284
    Ether-spray, 268
    Filters, 29
    Fireplaces, 283
    Flour, 51, 52, 100
    Food, 19
    Fuel, 283
    Fulling, 20
    Gas, 106, 234
    Gloves, 38
    Gun-cotton, 47
    Guns, 206
    Heating, 283
    Iron-trade, 34, 50, 166, 171, 256, 284, 285
    Lamps, 273
    Linen-trade, 54
    Machinery, 31, 54
    Manures, 233
    Medical, &c., 19, 268
    Peat, 234
    Pencils, 173
    Photography, 169, 218
    Pyrites, 235
    Quinine, 177
    Railways, 283
    Railway Pins, 268
    Safety, 19, 40
    Screw Propeller, 45, 97, 256, 275
    Sewing Machines, 32, 41, 283
    Shale Oils, &c., 99, 253
    Shipbuilding and Equipping, 43, 44, 46, 78, 79
    Shirt-frills, 37
    Shot, 44
    Spine-bags, 269
    Spinning, 283
    Steam Boilers and Engines, 19, 28, 97, 102, 169, 255, 261, 283
    Sugar, 19, 53, 54, 65
    Sulphuric Acid, 255
    Telegraphs, 36, 38, 97, 136, 274, 283
    Umbrellas, 38
    Ventilating, 283
    Weaving, 145

  Civilisation Impugned, 75

  Classification of Patents, 19, 87, 97, 283

  Cobden Club Prize Essay, 305

  _Colonies_, 19, 48, 64, 297, 326

  _Colonies of France_, 325

  Combination Inventions, 29, 101, 103

  Commerce, Chamber of, _Cologne_, 272, 279
    _Glasgow_, 116
    _Holland_, 203
    _Liverpool_, 22, 213, 231, 249, 278
    _Manchester_, 24
    _Prussia_, 185, 215, 278
    _United Kingdom_, 277

  Commercial Societies opposed to Patents, 185, 203, 204

  Commission, Royal, 22, 24, 28, 34, 42, 51, 59, 66, 104, 109, 114,
        189, 211, 212, 228, 231, 235, 246, 249, 252, 258, 267

  Committee of 1829, 20, 22, 23, 24
    1851, 22, 38, 211

  Community has Claims on Inventors, 14, 119

  Competition, its Place and Power, 156, 162, 276

  Conditions in Early Patents, 15

  Consumers get Benefit of Inventions, 71, 289

  _Continental_ Patent Systems, 90

  Copyright Amendment Tendencies, 320
    Bill for Fine Arts, 320
    Compared with Patent-right, 10, 95, 110, 117, 200, 206, 208, 210,
        221, 228, 238, 241, 243, 254, 255, 264
    International, 293, 305
    “Verein,” a, 297

  Cost of Patents, 24, 25, 38, 40, 62, 189

  Crown Not Liable to Pay for Patents, 104

  Custom-house Officers, What they have to Do, 141, 321


  Danger of Losing Pre-eminence in Manufactures, 91, 245

  Debate in Parliament, 9, 201, 208, 231, 251

  DE BRUYN KOPS, 202, 223

  Decorations Suggested, 86

  Development a Feature of the Patent System, 16, 18

  Disrepute, Patenting falling into, 83, 168

  Dormant Patents, 44

  Doubts as to Benefit of Patent System, 44, 57, 109

  Duties on Books, 309, 310, 318, 326


  “Economist, The”, 254

  Economists of _Germany_, 66, 215, 278

  _Europe_, Feeling against Patents in, 211

  _European_ Copyright, Americans obtain through Canada, 307

  Examination before Granting Patents, 187, 189, 252, 259, 266, 269, 270

  Exceptional Rewards for Great Inventions, 94, 114

  Excise, Proposal to Employ, on behalf of Authors, 318, 319, 326

  Exclusive Property, None should be in Inventions, 129

  Exorbitant Demands of Patentees, 27, 31, 32, 41, 46, 50, 51, 53, 166

  Expatriation of Frenchmen by Patents, 179

  Expediency the only Ground for Patents, 232, 238, 271

  Expired Patent, An, 31

  “_Exploitation_” required in France, 133

  “_Expropriation_”, 81, 142

  Extravagance of Patents as a Recompense, 78, 265


  Favours, Patents are, 10, 224

  FOCK, Minister of the Interior in the Netherlands, 219, 224

  Foreigners, How Favoured, 90, 275, 308
    Number of Patents in United Kingdom, 68

  _France_, 66, 193, 197, 199, 200, 211, 227, 325, 332
    Copyright Convention with, 325

  Free Trade, 47, 48, 73, 81, 164, 228, 232, 245

  Frivolous and Petty Inventions, 26, 30, 33, 37, 44, 96, 101, 206,
        253, 260, 266, 270, 284


  GEFKEN, 224

  _Germany_, 185, 192, 193, 214, 220, 230, 274, 275, 279, 332
    Economists of, 66, 249

  GODEFROI, 207, 223

  Guilds, 197, 203


  HEEMSKERK AZN, 198, 220, 224

  _Hesse_, 192

  Honours for Inventors, 86

  HOUTEN, VAN, 204


  Improper Patents, 38, 55, 268, 284

  Improvements, Minor, 36, 37, 170
    Retarded by Patents, 39, 58, 114, 272, 281

  Inconvenience Caused by Patents, 20, 26, 46, 48, 104

  _India_, 48

  Infringements, 34, 112, 272
    Unconscious, 29, 44, 103, 204, 261

  Injury done to Patentees by Patents, 29, 121, 255, 260, 273

  International Arrangements, 86, 293, 296, 305

  Invalid Patents, 32, 39, 235, 237

  Inventions Independent of Patents, 119, 136

  Inventor, The “First and True”, 16

  Inventors’ Institute, 287
    Who are They?, 248, 288

  _Ireland_, 15, 19, 53, 295, 324

  _Italy_, 324, 332


  JOHNSTON, ANDREW, Esq., M.P., 239

  Judges and Jury in Patent Trials, 107


  Law of Patents in America, 282
    Copyright, 298, 310, 313
    Patents, How Administered, 12, 33, 107, 109
    Patents in _France_, 175, 216
    Patents in _Holland_, 202, 215
    Officers of the Crown, 105, 266

  Lawyers, Many Opposed to Patents, 93

  LENTING, 225

  Library of Patent-office, 289

  Licences, 13, 38
    Compulsory, 42, 246, 262
    High Charges for, 48, 50, 51
    Refusal of, 40, 41, 53, 103

  Litigation, Costly, 34, 43, 100, 111, 260
    Dilatory, 33, 105, 253
    Occasioned or Required by Patents, 30, 32, 34, 52, 105, 121, 180,
        201, 234, 237, 253, 285

  Loss of Inventions by Abolition Improbable, 107, 119

  Losses by Patents, 42, 43


  MACFIE, Speech of Mr., 9, 213, 251

  Manufacture, What is Meant by?, 16, 59, 282

  Manufacturers dislike Patents, 9, 30, 248, 251, 262
    Injustice Done to, 71, 238

  Medals Proposed, 85

  Merits, Certificates of, 85

  Meritorious and Unmeritorious Patents, 97

  MILL, J. S., his Arguments for Patents, 69
    Appealed to, 75

  Monopoly, Antipathy to, 11, 16, 21, 26
    Injurious, 28, 36
    Restrictions on, Necessary, 15
    the Essence of a Patent, 10, 219, 232, 244, 272

  Multiplication of Patents, 25, 37, 44, 45, 203

  Musical Copyright, 315

  MUSPRATT, E. K., Esq., 231


  Nature, Order of, opposed to Monopoly of Ideas, 9, 76

  Neglect of Patents by Patentees, 54

  _Netherlands_, 50, 196, 200, 225, 236, 280, 332

  New Books seldom Seen by Poor, 294

  Number of Patents, 18, 19, 97, 283
    in other Countries, 50, 192


  Obstructiveness of Patents, 27, 36, 44, 59, 102, 112, 122, 163, 171,
        203, 206, 226, 227, 237, 253, 255, 257, 270, 281

  Occupation, Right of First, 207

  Operatives as Witnesses, 92
    Injured by Patents, 63, 239, 247, 286
    Seldom get New Books, 294

  Origin of the Patent System in England, 11


  PALMER, Sir ROUNDELL, M.P., 93

  Parliament, 11, 21, 236

  Patent Act of 1852, 25, 48
    Laws cannot be much Improved, 67, 91, 187, 205, 217, 246, 252, 263,
        333
    Office, 289
    System, Demands of, on Manufacturers, 76, 226

  Patentees, Limit in Number of, 16
    Who should be, 13

  Patenting for Self-Protection, 28, 33, 165

  Patents a Bad Stimulus, 62, 78, 120
    an Anachronism, 123, 171, 255
    are a Power to Restrain Others, 10, 111, 186
    do more Harm than Good, 115, 273
    Overtask Inventors’ Time and Powers, 79
    Uncertain as a Lottery, 23, 42, 111, 260, 273
    Used as Advertisements, 38

  Perpetuity of Property in Patents, 133, 281

  Poor Inventors, 42, 58, 62, 111, 237, 257, 262, 267

  Prejudices in Favour of Patents, 254

  Prices, Patents should not Raise, 21
    Raised by Patents, 48, 54, 55, 178, 272

  Principles, Patenting of, 274

  Priority of Patenting, 113, 118

  Processes are now Patented, 13, 14, 19

  Profits of Patentees, 30, 34, 37, 52, 61
    Go to Parties who have Little Claim, 35, 42, 52, 55, 61, 112, 191

  Property, Exclusive Privileges are, 10
    in Ideas, Knowledge, Modes, or Inventions, 9, 15, 95, 111, 116,
        124, 167, 205, 242, 243, 254, 269, 324
    in Land compared with that in Inventions, 132, 281

  _Prussia_, 49, 50, 166, 171, 185, 192, 193, 201


  QUOTATIONS FROM, OR REFERENCES TO:—
    Abel, 33, 46, 68
    Admiralty, 44, 60, 104
    _Annalen de Norddeutschen Bundes_, 279
    Armstrong, Sir W., 27, 28, 31, 35, 37, 39, 40, 41, 42, 57, 82, 90,
        103, 257, 258, 262
    _Athenæum_, 309, 310
    _Avenir Commercial_, 175
    _Bacon’s Abridgment_, 17
    Bastiat, 161, 276, 277
    Barthel, _die Patent-frage_, 279
    Bell, 238
    Betts, 34
    _Bismarck, Count von_, 185, 219
    Blaine, Roberton D., 324
    Boudron, Aug., 28
    _Bookseller_, 307, 309
    Bovill, 51
    _Brande’s Dictionary_, 13
    Brewster, Sir David, 69
    Bright, Right Hon. John, 249
    British Association, 65
    Brunel, I. K., 36, 39, 43, 58, 212
    Brunel, Sir M. I., 23, 42
    Buller, Justice, 18
    Bulwer’s Act, 298
    Bunsen, 274
    CAIRNS, Lord, 67, 249, 319
    CAMPBELL, Lord, 64, 213
    CARDWELL, Right Hon. E., 65
    _Carpmael_, 38
    _Chambers’s Cyclopædia_, 34
    Chelmsford, Lord, 41
    Chevalier, M., 73, 80, 164, 198, 210, 211, 220, 221, 249, 278
    Clode, 46, 47
    Cobden, Richard, M.P., 63, 249
    Coke, Sir E., 16, 20, 21
    Collier, Sir R., 251, 254, 266
    Conté, 173
    Continental Association for Social Sciences, 81
    Cook and Wheatstone, 36
    Coryton’s _Law of Letters-Patent_, 17, 18, 24
    Crane, Sir F., 83
    Crossley, Sir F., M.P., 38, 70
    Crown Lawyers, 63
    Cubitt, Sir W., M.P., 29, 57, 212
    Curtis, 24, 28, 32, 282
    Daguerre, 169, 209, 218
    Daly, Michael, Esq., 326
    Douglas, Sir Howard, 45
    _Economist_, 251, 255
    Economists of Germany, 64, 215
    Edmunds, L., Esq., 68
    _Engineer_, 50, 269, 282, 285
    Erle, Sir W., 67
    Eyre, C. J., 18
    Fairbairn, W., 67
    Fairrie, John, 56
    Farey, 20, 39
    Flachat, E., 277
    Forster, Right Hon. W. E., 67
    Foxwell, 32
    Franklin, 172
    French Academy of Sciences, 143, 177, 209
    Fulton, 143, 238
    Garnier, Joseph, 221
    Government Establishments, 43, 104, 258
    Graham, Sir James, 64
    Granville, Earl, 63, 212
    Grey, Earl, 65
    Griffith, 45
    Grotius, 15
    Grove, Q.C., 31, 33, 35, 37, 43, 57, 67, 98, 274, 284
    Guimet, 171, 182
    Hale, W. S., 27
    Hall, 43
    Hatherley, Lord, 25, 67
    _Harmonies Economiques_, 163, 276
    Harrowby, Earl of, 64
    Hawkins, Serjeant, 16
    Heath, Justice, 17
    Hills, F. C., 234
    Hindmarch, _The Law of Patents_, 14, 17, 282
    Hofmann, 177
    Holden, 139
    Howard, Hon., 53
    Howard, M.P., 251, 254
    Indian Trade, 47
    Ingres, 174
    Jamar, Minister of Works in Belgium, 209, 211
    _Journal des Economistes_, 124, 281
    _Journal of Jurisprudence_, 25, 67
    Judges, 63, 212
    Klostermann, Dr., 201, 221, 279
    Krupp, 171, 206
    Lamartine, 200
    Lawes, 233
    Lefroy, General, 46
    Legrand, 65, 277
    Le Hardy de Beaulieu, 124, 277, 281
    Lennard, M.P., 23
    Macfie, M.P., 258, 278
    Master of the Rolls, 1851, 63
    Maurice, 256
    Maury, Lieut., 161
    M’Culloch, 69
    _Mechanics’ Magazine_, 297, 299
    Mill, J. S., 69, 78, 80, 256
    Morse, 274
    Mundella, M.P., 251, 262, 267
    Napoleon, 304
    Neilson, 284
    Newton, 32, 38, 41, 265
    Niepce de St. Victor, 169, 209
    Overstone, Lord, 67
    Paillottet, 277
    _Pall Mall Gazette_, 231
    Palmer, Sir R., M.P., 93, 232, 251, 255, 259, 263, 265
    Passy, 169
    Peel, Sir R., M.P., 23
    Percy, Dr., 284
    Perkins, 177
    Platt, M.P., 29, 30, 33, 40, 57, 103, 258
    _Prècis d’Economie Politique_, 153
    Purday, Esq., 312, 313
    Ransomes, 29
    Reeve, Registrar of Privy Council, 51
    Reid, Colonel, 56, 212
    Reissel, 275
    Rendal, J. M., 26, 47
    Renouard, 301
    Reybaud, L., 138
    Ricardo, M.P., 65, 212, 249
    Roberts, Richard, 38, 39, 55
    Robinson, Admiral, 45
    Roche, M.P., 65
    Russell, J. Scott, 28, 30, 34, 103, 258, 262
    _Saturday Review_, 263
    Savornel Lohman, 200
    Sciences Sociales, Association des, 81
    Simon, of Privy Council, 269
    Smith, Adam, 69
    Smith, Archibald, 65
    Smith, M., Q.C., M.P., 28
    _Social Science Association Proceedings_, 14, 32, 42, 243
    Société d’Economie Politique, 164, 202
    Somerset, Duke of, 44
    _Sophismes Economiques_, 155
    _Spectator_, 259
    Spence, James, 27, 43, 58
    Stanley, Lord, M.P., 67, 208, 218, 249, 251, 255, 259
    _Stephens’ Commentaries_, 10
    Stephenson, 238
    Talfourd, Serjeant, 298
    Tilliere, 81
    Trades Union, 78
    _Traité des Droits d’Auteurs_, 297
    Tyndal, Chief Justice, 17
    Vermeire, 276, 277, 279
    Visvering, Professor, 200
    Waddington, H., 67
    Walkoff, 153, 154
    War Office, 46, 60, 104
    Watt, 171
    Webster, Thomas, Q.C., 26, 31, 35, 36
    West India Association, 48
    Whittle, Lowry, 54
    Wintgens, 219, 222, 224
    Wolowski, Professor, 82, 221
    Woodcroft, 15, 32, 37, 56, 87
    Young, 101

  Recompense, Futility of Inventors’ Claim for, 131

  Registration of Improvements, 86, 270

  Remedies Suggested, 37, 72

  RENOUARD, 294, 301

  Repealing of Patents, Rare, 35

  Results of Bad Law, 175

  Rewards, State, 71, 80, 84, 94, 114, 171, 238, 247, 274, 288, 333

  _Rhine_ Countries, 230

  Rights of Inventors a Modernism, 16
    of the Community, 142, 206

  ROGERS, Professor THOROLD, viii

  Royalties under Patents are a Differential Duty, 51
    are a Tax, 49, 74, 102
    for Remunerating Authors, 293, 298, 315
    Heavy to Patentees, 50, 274, 285
    to Authors, see “Copyright”

  Ruin of a Firm by Refusal of Patent Licences, 53


  “Saturday Review”, 263

  _Saxony_, 50

  Scheme for International Patents, 250
    for Modifying Patent System, 248
    for Royalties to Authors, 296

  Science, Men of, 36, 58, 64, 98, 168, 170, 176, 228

  _Scotland_, 19, 82, 99, 283

  Secrecy and Concealment, 40, 47, 56, 88, 114, 158, 194

  Sentimentalism, 18, 123

  Simultaneousness of Inventions, 25, 26, 35, 36, 45, 54, 95, 113, 204,
        209, 253, 261, 265

  Smuggling of Books into _Canada_, 309

  “Spectator”, 259

  Speculation in Patents, 53, 112, 260, 275

  STANLEY, Lord, M.P., 67, 109, 208

  State is not Bound to Grant Patents, 10
    its Duty, 76
    makes Preposterous Concessions in Patents, 74, 78, 141

  Statute of Monopolies Quoted, 11, 20, 21, 22, 47, 59, 60, 88, 282

  Steps in Invention, 136, 147, 169, 253, 258

  STIRLING, JAMES, Esq., 116

  Substitute for Patents should be Sought for, 115

  Sugar Refiners, 19, 48, 51, 54, 65, 82

  _Switzerland_, 49, 68, 167, 191, 193, 198, 201, 236, 247, 249, 254,
        275, 280


  “Times, The”, 251

  Titles Suggested, 86

  Trade, Board of, 249, 317
    in Books, 293, 294, 308, 312, 331, 332
    Interfered with by Patents, 47, 51, 52, 65, 81, 166
    Marks, 326, 328

  Trades Union, 78


  _United Kingdom_, 193, 197, 324

  _United States_, 193, 197, 199, 282, 296, 297, 307, 317, 331, 332

  Usefulness of a Patent System, 56, 57, 97, 161, 258, 273


  Vending, 282
    not Prohibited in _Germany_, 193

  VERMEIRE, 276

  VOORTHUYSEN, VAN, 218, 224


  Wages, Effect of Patents on, 62

  WATTS, THOMAS, Esq., 297

  _West India_ Association’s Policy as to Patents, 48

  _Würtemberg_, 192




ERRATA.


  On page 70, two lines from bottom, read Francis instead of Joseph.

     ”    92, line 13, for command read commend; and insert a comma
                after the word inaugurate in next line.

Transcriber’s Note: These two amendments have been made, and in addition,
a number of minor typographical errors were identified and corrected.

LONDON: W. J. JOHNSON, PRINTER, 121, FLEET STREET.




                           THE PATENT QUESTION
                            UNDER FREE TRADE:

                        A SOLUTION OF DIFFICULTIES
                BY ABOLISHING OR SHORTENING THE INVENTORS’
                              MONOPOLY, AND
                    INSTITUTING NATIONAL RECOMPENSES.

                         A PAPER SUBMITTED TO THE
     Congress of the Association for the Promotion of Social Science,
          AT EDINBURGH, OCTOBER, 1863, BY ROBERT ANDREW MACFIE,
             PRESIDENT OF THE LIVERPOOL CHAMBER OF COMMERCE.

                TO WHICH ARE ADDED TRANSLATIONS OF RECENT
                      CONTRIBUTIONS TO PATENT REFORM
            BY M. CHEVALIER AND OTHER CONTINENTAL ECONOMISTS.

                                 LONDON:
                    LONGMANS, GREEN, READER, AND DYER.
                                  1864.

               PRICE ONE SHILLING (By Post for 13 Stamps).