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.