Chapter M: MICHEL CHEVALIER, Senator, proposed to consider Patents in their

relation to freedom of labour [_la liberté du travail_], a corner-stone of modern political economy, and to the principle of the law of property, which is greatly respected by economists and which serves them as guide.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

EXPERIENCE IN FRANCE.

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

THE RESULTS OF A BAD LAW.

I.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

T. N. BENARD.

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

II.

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

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

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

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

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

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

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

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

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

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

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

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

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

T. N. BENARD.

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

Berlin, December 10, 1868.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Whereas, in 1866, there were granted—

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

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

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

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

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

(Signed)

“VON BISMARCK.”

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

PROPOSITION FOR THE ABOLITION OF PATENTS IN HOLLAND.

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