Recent discussions on the abolition of patents for inventions in the United Kingdom, France, Germany, and the Netherlands

by Unknown

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.