Chapter V: Front Matter (5)

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_.”