Chapter M: HEEMSKERK AZN replies to M. Godefroi, and does not see why he should (1)

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._