OPINIONS OF THE PRESS ON THE DEBATE IN PARLIAMENT ON THE PATENT QUESTION.
Leading Article from the “Times,” May 29, 1869.
Public attention has for some little time been withdrawn from the consideration of the Patent-Laws; but, if we may judge from the discussion upon the subject in the House of Commons last night, the day is at hand when this branch of our legislation will be wiped out of the statute-book. It is impossible to withstand the weight of authority and reason advanced yesterday. It was all on one side. Mr. Macfie, the newly-elected member for Leith, introduced the subject, and, incited apparently by injuries he had himself suffered through the operation of the Patent-Laws, argued very vigorously against them on theoretical and practical grounds. He was not left unsupported. Sir Roundell Palmer, who, had he consulted his private interest, would certainly have been among the first to uphold a system productive of such immense pecuniary benefits to the practitioners in the courts, seconded Mr. Macfie’s motion for the unconditional abolition of the Patent-Laws in a speech of the closest reasoning, supported by a vast array of facts which had come within his own personal experience. He was followed by Lord Stanley, who confessed that, against all his early prepossessions, he had been convinced, when acting as Chairman of the Patent Commission, that the abolition of the Patent-Laws was demanded on grounds of justice and of sound policy. Two of the foremost representatives of law and of statesmanship thus enforced the reform demanded by Mr. Macfie as a spokesman for manufacturers. It is true that others followed who opposed, or attempted to oppose, the arguments of Sir Roundell Palmer and Lord Stanley. This was inevitable. Men who have not looked into the question are in the same position as Lord Stanley says he himself was when he first began to consider it. They are under the influence of impressions they have never thought of questioning, and are biased by supposed analogies, drawn from cognate subjects, the unsoundness of which they have not investigated. Hence they protest, not without vehemence, against an amendment of the law which is in conflict with their own habits of thought, but they do not reason upon it. Analyse the speeches delivered last night by Mr. Howard, Mr. Mundella, and, we must add, the Attorney-General, and the residuum of argument contained in them will be found to be very small indeed. They are all satisfied the Patent-Laws have been useful to the nation, as people were once satisfied that the Corn-law was the secret of our greatness. They insisted that the abolition of the Patent-Laws would be a blow to our national pre-eminence, just as their predecessors agreed in predicting not so long ago that with the abolition of the Corn-laws Old England would dwindle and decay.
The first point to be borne in mind with reference to the Patent-Laws is, that if we retain them at all they must be retained in their present form. The amendments admissible in their machinery are not important, and the recommendations of the Royal Commission some years ago were so slight that it has never been thought necessary to carry them into effect. What is the scheme of the Patent-Laws? A man discovers, or believes he discovers, a new process of accomplishing some useful result. He registers his supposed invention, and acquires a provisional right to its exclusive use for a definite number of years. After a time he finds some other person using his invention, and applies to the courts of law to prohibit him. The alleged infringer of the Patent says that the assumed discovery was no discovery at all, or that it was of no public benefit, or that he is not making use of it, and the questions arising on these issues are then tried. This is a condensed statement of the whole working of the law as it stands. No substitute for it can be recommended that will bear examination. It is sometimes said that an inventor should be required to prove the originality and utility of his invention at the time he makes his application to be registered. But who could examine such a claim? A court of law may, after much trouble and caution, declare that a claimant is entitled to a piece of land, because the claimant, by exercising rights of ownership over it, gives notice in a very palpable way to all other claimants of the property, though even then the court takes extreme pains that the rights of absent or infant persons may not be abridged. But, when a man claims an invention, by what possible process could notice of his claim be brought home to every man in the kingdom? Whoever will consider the matter will be forced to the conclusion that all the State can do is to tell an applicant that he shall be protected in the use of his invention provided he shall be able, whenever occasion arises, to establish its originality and utility against any one who may arise to contest them. The same considerations which negative the suggestion that a claimant could receive an indefeasible title, also negative the proposal that the claimant should be compensated by a money grant at the outset. If the originality of his claim cannot be proved, payment for it cannot be made, even if there existed at that incipient stage any means of determining its value.
The present system of Patents must be retained if Patents are to be preserved, and the evils of the system flow directly from it. It is impossible to diminish appreciably the litigation attendant on Patents. Sir Roundell Palmer referred to the paraffin oil case, which occupied the Court of Chancery fifteen days. Nor could this be avoided, for the novelty of the process of distilling paraffin was the point contested, and to decide this it was necessary to examine the exact stage of discovery to which a dozen different investigators had advanced, all of whom were trying simultaneously, but independently of each other, to distil paraffin oil so as to make it a commercial product. The expense and uncertainty of Patent litigation being unavoidable, the cardinal defect of the system, that the reward it offers hardly ever goes to the right man, follows. The inventor is at one end of the scale; the transferee or licensee of the Patent is at the other, and while the latter reaps enormous gains, the inventor often has the reflection that it was he who made the discovery for his sole reward. The second great fault of the system of the Patent-Laws is an effect equally inseparable from it. These laws constantly inflict the most grievous injustice on innocent persons. Mechanical and chemical discoveries are not made by unconnected jumps. The history of science and of invention is one of gradual progress. A hundred different persons are pursuing their investigations on the same subject independently of each other, and are all nearing a particular goal, when some one man reaches it a few days before the others. The law which gives him a monopoly denies to the rest the fruit of their exertions. It is needless to refer to the numberless instances in which inventions have been discovered so nearly simultaneously that the real inventor cannot be ascertained; and it is impossible to deny that to give a monopoly to the man who is the most prompt to register his claim often inflicts a grievous wrong on the investigators who accomplish the same results in perfect independence of him. So far we have spoken only of primary discoveries. The secondary Patents, as they may be called, were rightly denominated by Sir Roundell Palmer unmitigated evils, and, according to the same high authority, they exceed in number Patents of importance in the ratio of a hundred to one. A person suggests some small improvement in the course of an elaborate manufacture, and takes out a Patent for it. Henceforth he blocks the whole trade. He cannot be got rid of, and it is not easy to deal with him. He is quite conscious of the obstacle he creates, and in the end he is probably bought off by some great manufacturer in the line of business affected by the discovery, who, by accumulating in his hands the inventions, good and bad, connected with his occupation, monopolises that particular branch of trade throughout the country.
The strength of the existing Patent-Laws lies in the vague belief of those who have not considered the subject that it would be unjust to deprive a man of the benefit of his discoveries. Those who are impressed with this elementary notion may be asked to reconcile it with the undeniable fact that the Patent-Laws do deprive, in the way we have shown, many men of the benefit of their discoveries; but a little reflection will convince them that their argument rests on a pure assumption. No man would be deprived of the benefit of his discovery because he did not receive a monopoly of its use. His own discovery would be his own discovery still. As long as he is allowed to employ his own inventions in any way he thinks proper he cannot be said to suffer any deprivation of a right. The truth is, that the Patent-Laws are a voluntary addition to our legislation based upon no such obligation as underlies the ordinary laws of property; and they must be justified, if they can be justified at all, as gratuitous creations of the Legislature, by proof that they produce some national benefit. It is from this point of view that we see the difference between the laws of Copyright and of Patents. They agree in being added on to what may be called the body of natural law, but the reasons in support of each are not the same, and the objections which apply to the law of Patents do not apply to the law of Copyright. The monopoly granted to an author does injustice to no one. The monopolies granted to patentees do injustice to many. Patents are creations of positive law, and must be judged accordingly. The Attorney-General approves them because they are designed to multiply inventions, although he admits that the multiplication of Patents is a serious evil. A sounder judgment will condemn them because of the evils necessarily attendant upon them; and we have no fear of what would happen to the course of invention or the progress of the country if they were abolished, and the inventor allowed to make such use of his invention as he may be advised. Inventions co-exist with Patents, but the experience of Switzerland is sufficient to show that they would abound if Patents did not exist, and the decline of commercial greatness with which Mr. Howard threatens us should Patents be abolished may be treated like so many other prophecies of evil which have been happily neglected and remain unfulfilled.
Leading Article from the “Economist,” June 5, 1869.
It is probable enough that the Patent-Laws will be abolished ere long, though the full force of the real objections to them was perhaps not brought out in the debate last week on Mr. Macfie’s motion for their abolition. Sir Roundell Palmer was too metaphysical. The supposed distinction between the copyright of a book and a Patent—that no two men will hit upon the same composition even in substance, while they will hit upon the same idea for an invention—does not prove anything. If a case of general utility could be made out, the abstract justice of giving a man the monopoly of an idea, should he be the first to come upon it, would not be much considered. Lord Stanley, who avoided this mistake, dwelt too much upon such minor points as the practical failure of the law to secure a reward to the inventor and the frequent disproportion between the reward and the service rendered, which are points of no consequence so long as the public is generally a gainer by the law. Lord Stanley, however, touched upon the true reason when he referred to the injury of third parties, which the present law occasions, by reason of Patents being granted to only one out of half-a-dozen persons who come upon the same inventions, or to one of a series of inventors who improve upon each other’s work, and by reason also of the general interference with manufacturing. What we should have liked to see fully stated was the peculiarity of the present circumstances of the country in which these things are true. The statements in fact amount to this—that there is a large number of inventions which Patents are not required to encourage; that these are made as ordinary incidents of business; that invention, improvement of mechanical and chemical processes, is itself a part of a manufacturing business; and that in this way the granting of Patents only impedes manufacturers to whom inventions would naturally come. The full force of these facts cannot be felt unless we recognise that a change in the character of invention has taken place. The Patent-Laws were intended to apply to different manufacturing circumstances from those which now exist, and were based upon different notions about invention; the objection to them is that they either are, or are becoming, out of date. A little consideration will show how true this is.
Let us look first at the notions still customary about inventors and inventions which are derived from past circumstances. The popular idea of an inventor is of a man who makes an immense addition to the real wealth of the world—who invents the steam engine, or the spinning jenny, or the Jacquard loom, or the hot blast—almost revolutionising the material powers of mankind. The idea associated with his work is in any case that of great novelty in means coupled with great accomplished results. Now there are various reasons why these should not be the characteristics of modern inventors and inventions, as we see they are not. It might be true that there are still as many inventions of real novelty and magnitude as ever, though we doubt if there is; and yet there would be circumstances which prevented a legislator regarding them as most important. One of these circumstances is certainly the exaggerated importance of minor improvements, in consequence of the great development of machinery and manufacturing. A single improvement to save 10 per cent, in fuel for the steam engine would probably add more absolutely to the real wealth of this generation than the invention of the steam-engine itself added to the real wealth of the generation in which it was invented. A recent invention just spoken of—the feathering of the blades of screws, increasing the facilities of using auxiliary steam-power in ships—might compare on the same footing with the most substantial invention of a poorer age. Just as the refinement of the machinery of credit, and the extent of its development, cause the least disturbance to be widely felt, so the least improvement in mechanical or chemical knowledge, applied to manufactures, may have great results. A revolutionary invention—owing to the difficulty of introduction—might not tell so quickly even as a minor improvement in an existing groove; but, in any case its effects will now be matched at the first start by these minor improvements.
These improvements again, as well as the great inventions themselves, are usually come at in recent times in a different way from that of the old inventor. Formerly the inventor had almost nothing, before him—every department of industry had to be built up from the foundation. Now a man must build upon extensive knowledge of what has been accomplished, and must have great means at his command. What Mr. Mill has just been explaining in his new book in regard to original authorship in the present day is equally true of invention: “Nearly all the thoughts which can be reached by mere strength of original faculties have long since been arrived at; and originality, in any high sense of the word, is now scarcely ever attained but by minds which have undergone elaborate discipline, and are deeply versed in the results of previous thinking. It is Mr. Maurice, I think, who has remarked, on the present age, that its most original thinkers are those who have known most thoroughly what had been thought by their predecessors; and this will henceforth be the case. Every fresh stone in the edifice has now to be placed on the top of so many others, that a long process of climbing, and of carrying up materials, has to be gone through by whoever aspires to take a share in the present stage of the work.” That is—when we speak of invention—the inventor must be a man who is closely associated with capitalists, or be a capitalist himself. In no other way can he have the means of knowing the thousand improvements of machinery and processes which have culminated in the present factories and machines; and in no other way can he find means for experiments on the necessary scale. “Poor men,” says Sir William Armstrong, “very often come to me imagining that they have made some great discovery. It is generally all moonshine, or if it looks feasible, it is impossible to pronounce upon its value until it has passed through that stage of preliminary investigation which involves all the labour, and all the difficulty, and all the trouble.” How is a poor man to get this preliminary investigation undertaken, when the subject is an amendment of a complicated manufacturing process? The complaint, in fact, was made before the Select Committee on Technical Instruction, that English manufacturing was suffering from foreign competition, because there is less room now than formerly for the play of “untaught invention.” The machine is too perfect for the workman to meddle with; and thus the foreigner, supposed to be more technically instructed, has room to excel us—our peculiar power having been “untaught invention.”
Such having been the change in the character of invention, it is easy to see why the Patent-Laws are not only not needed, but are obstructive. The inventor, in the first place, is not in the position of an old inventor. To give him scope he must be employed by a manufacturer or capitalist—that is, his skill must be already highly valued, the manufacturer naturally employing those who can introduce amendments and improvements, and keep him abreast or ahead of competitors. “I believe,” says Sir William Armstrong, again, “that if you let the whole thing alone, the position which a man attains, the introduction and the prestige, and the natural advantages which result from a successful invention and from the reputation which he gains as a clever and able man, will almost always bring with them a sufficient reward.” And again: “I think that absolute discoveries are very rare things; nearly all inventions are the result of an improvement built up upon a preceding one. A poor man who has the ability to make really practical improvements is almost sure to rise in the world without the aid of Patents.” And if the inventor may be thus indifferent to a Patent-Law, the question as to the inducement to capitalists to take up inventions may be settled by their general objection to Patents. Though there are one or two manufacturers who have monopolised a number of Patents in their trade, and so turned the law to account, it is from them that the greatest complaints come—men like Mr. Platt, or Mr. Scott Russell, or Mr. Macfie, who has just moved the abolition of the laws. The truth is, capitalists are now in a position to obtain a profit without a Patent—just as they can sometimes disregard a Patent for a long time till competition forces it upon them. Patents, then, are not required as an inducement either to inventors or capitalists, and the reason of the law fails.
But this is not all. The complaint of manufacturers at the obstruction of the present law would not be enough by itself, but it is a very serious matter when invention is part of the business of manufacturing. The law of Patents, in short, interferes with what has become the normal process of invention. Mr. Platt states: “I think that there is scarcely a week, certainly not a month, that passes but what we have a notice of some kind or other of things that we have never heard of in any way, and do not know of in the least that we are infringing upon them.” Sir William Armstrong complains of a personal grievance: “The necessity which I am under of taking out Patents, not for the purpose of obtaining for myself a monopoly, but simply for the purpose of preventing other persons from excluding me from my own inventions.” And much similar evidence was given before the Royal Commission, of which Lord Stanley was chairman. Thus the present law is not wanted to promote invention, and it is injurious to a kind of invention which would go on luxuriantly without it. The gradual nature of most inventions is a sufficient security that it will proceed under the law of competition. Perhaps the practice of Government is the best indication of the necessity for the abolition of Patents. A few years ago the manufacturing departments of Government found themselves so hampered by Patents that they resolved to try whether they were bound or not, the result being a legal opinion that they were not bound. But Government is only a great manufacturer, its work in some departments being less than in many private businesses. Is there any reason why Government should be released, and individuals bound to patentees? As to the supposition that invention will cease, the mere interest of the Government in paying for anything worth having is found a sufficient stimulus to invention in the things which it requires; and so it is assumed will be the interest of competing manufacturers.
There is a universal agreement, moreover, that no Patent-Law should cover all the inventions which are now covered. It happens that the strongest condemnation of things as they are before the Royal Commission came from witnesses who wished a change, though none suggested anything which commended itself to the Commission. The idea seemed to be that a separation could be made between substantial inventions and the improvements or amendments which are now so important, but are admitted to be unsuitable for Patents. It was thought that Patents, instead of being granted indiscriminately, should only be granted in cases of proved novelty and utility. But no working plan of a court to do this could be devised, or one which would not probably discourage inventors as much as the abolition of Patents altogether.
We come, then, to the conclusion that it is for the general interest that Patent-Laws should be abolished, and that their abolition will do no great harm to any one—least of all, to the great mass of inventors or improvers. Perhaps we may point out that, if the circumstances are as described, this country has a special interest in abolishing such laws. As the leading manufacturing country in the world, a Patent here is likely to be worth more to its holder than anywhere else; consequently our manufacturers are more exposed than any others to the interruption and worry of Patents. It may well be that other countries which are less tempting to patentees will find the balance of competition weighted in their favour in consequence. Looked at another way, the more that invention falls into the hands of great capitalists, the more likely is it to strengthen the manufacturing of a country which is already most powerful. The normal condition of things is all in our favour, and we should do nothing to thwart it.
Leading Article from the “Spectator,” June 5, 1869.
Those who doubt whether there are subjects upon which no conclusion is possible, which baffle the ablest and most judicial minds possessing the best attainable information, should read the debate which has just taken place on the proposed abolition of the Patent Laws. The most remarkable fact of the debate was the uncompromising attack upon these laws by Sir Roundell Palmer, his eager advocacy of the opinion that they should be at once abolished; but the most significant speech was made by Lord Stanley, who exhibited perfectly the incapacity of reasonable men to come to a wholly satisfactory judgment upon them. In fact, there is a real balance of considerations which were almost exhaustively stated by Lord Stanley. If you look at one set of facts, you see good reason for conceding Patent rights; if you look at another set, you find innumerable mischiefs arising from the concession; and there is hardly any means of measuring which set of arguments preponderates. The motive of granting Patents is primâ facie very simple and unobjectionable. You wish to encourage inventions, by which the wealth of the world is so much increased, and you therefore promise inventors a temporary monopoly of their use, on the single condition that the inventions shall be made public. But for some such guarantee, it is said, many inventors would have no temptation to rack their brains, and capitalists would be afraid to help them in putting their ideas into a complete shape. That invention, as a matter of fact, is to some extent encouraged, is certain, though Lord Stanley hardly touched upon the point. On the other hand, hardly any Patent-Law can do what it professes, while it is certain to do much harm; and this is, at least, the character of our own law. The rewards with which it tempts inventors are too often delusive, and they at least would have small real cause to complain of its abolition. No Patent brings its holder any immediate pecuniary right. He can only sue people who infringe his Patent, and the costliness of Patent suits is such that he is seldom able to protect himself. To make the property worth anything, a capitalist must take it up; but the capitalist, in doing so, stipulates for the lion’s share of the profit. Probably in ninety-nine cases out of a hundred the reward was obtained by such speculators, and not by inventors. This, of itself, we believe, would not be a sufficient argument against conceding Patent-rights; but it would certainly be sufficient, if inventors could be induced in some less costly way to surrender their ideas to the public. Another reason against Patents, stated by Lord Stanley—that the reward is usually but of all proportion to the service rendered—is also a strong one, if a better plan can be thought of; but the main reason, the injury to third parties, is most serious. There is a great mass of well-founded complaints as to Patents being traps for manufacturers. Improvements and amendments in the details of machinery and manufacturing processes, which would inevitably be come at by the manufacturers themselves, are appropriated beforehand by inventors who do not possess in reality any particular merit. Manufacturers, are afraid to make slight alterations, for fear an inventor comes down upon them; but they never know but what they may have to encounter an action for “something they have always done.” Even inventors themselves suffer in this way. It commonly happened that half-a-dozen men competing in the same line of business would come almost simultaneously upon the same discovery; but if A was a week or a fortnight before B, the latter was excluded from his own discovery. The Patent-Law, then, not only does little real good to patentees themselves, but a great deal of mischief to other people. Who is to decide whether the balance of advantage to the public, through encouraging invention by offering a rather delusive reward, exceeds the disadvantage of impeding manufacture and preventing people from using what they themselves discover?
Lord Stanley, though only recommending the matter for the “particular handling” of the Government, inclines, on the whole, to the view that the Patent-Laws do more harm than good; and we are quite disposed to agree with him. The decisive consideration appears to be the unavoidable abuse of Patents for inconsiderable inventions, or inventions of simultaneous discovery. The hardship of excluding B from a discovery of his own because A had patented it a week before, is such as to demand the clearest proof of the expediency of the general law which deprives him of the fruit of his labours. Where B is a manufacturer, led up to the discovery by the necessities of competition and suddenly laid under contribution by a stranger or a rival, the hardship is especially severe. We are not sure but that to make any Patent-Law tolerably just, special provision should be made for proof of simultaneous discovery, and either compensation to all the discoverers by the patentees, or full liberty to them to make use of their discovery. It is of equal importance, however, that the amendment of manufacturing processes in detail should not be checked; and perhaps the fact that the great majority of Patents now only apply to what may be termed details is a main reason for abolishing them. It is a simple monstrosity, to quote the case given by Mr. Scott Russell, that every conceivable shape of a boiler should be patented, so that the most obvious change of form, which some particular exigency obviously suggests when it arises, should not be permissible to a manufacturer unless he pays black mail to somebody else. If it is said that details are often important, the answer is that manufacturers and inventors have a sufficient stimulus with regard to them without a Patent-Law. The pressure of competition and the large scale of manufacturing, which make details important, are sufficient inducements to those interested to find out something new, or encourage others to find out something for them. Just because invention must usually come in the way of great manufacturers, who can recoup themselves without Patents, Patents are no longer necessary. Men like Sir William Armstrong and Mr. Scott Russell, who are themselves considerable inventors, do not care for Patents, except to guard themselves against the interference of others who might take advantage of the present law to reap where they have not sowed. They are quite content to let others alone, if they are let alone themselves, deriving their profit from general excellence of manufacture, of which any single process which might be the subject of a Patent is only one out of many details, and perhaps not the most important. Nor do such inventors conceal their detailed improvements, so that they are in no way tempted to do anything for the advantage of the public by the present law. It was observable in the debate that the defence of the present law rested exclusively with representatives of probably the least important inventors. Mr. Mundella’s assurance that working men are attached to the present law, and that inventors of the working class would either not be tempted to invent, or would be deprived of the reward of their industry, was, in truth, the only argument in its favour. But it was plainly insufficient. It would be necessary also to show that such inventions are overwhelmingly valuable, so as to compensate for all the injury a Patent-Law must do; but this was not, and we believe could not be, attempted. The special case of poor inventors might be met by an organised system of voting rewards to those whose inventions had been largely adopted and used; but we should not frame an entire law, which the public do not require, and which would work a deal of harm, in order to suit their peculiar circumstances.
Such being the nature of the discussion, it is, of course, not worth while saying much on the particular defects of the present law. But there is hardly a single point where some alteration is not called for. In particular, the Courts for trying Patent cases could be very much improved; and additional obstacles might be interposed to frivolous or entrapping Patents. One of the main reasons for total abolition, nevertheless, must always be the impossibility of suggesting an amendment for some defect which is not itself open to equivalent objections. Nothing, for instance, seems so obvious at first sight than that the present law might be amended by compelling patentees to grant licences. Yet the Royal Commission which reported in 1865 was decidedly opposed to this suggestion, after hearing all that could be said for it. There is no means of saying beforehand what should be the maximum charge for licences, while the moment this principle is introduced the special use of a Patent as a stimulus to inventors is tampered with—the prospect of a complete monopoly of which they are to make as much as they can. Similar objections apply to any suggestion for cancelling Patents which are not used in a year or two to some material extent. The best inventions, requiring the greatest changes in manufacturing machinery, are often the slowest to come into operation. For the same reason, it would also be impracticable to compel patentees to grant licences at fixed maximum rates after their Patent had been two or three years old. It might be just as impossible then, as at first, to say what the licence fee should be. If we are to have a Patent-Law, then we can have no substantial improvement upon the present one; and it is so bad that it can hardly last. Perhaps there is at present a deficiency of evidence on the subject—the workmen not having been heard before the last Commission, and the information presented as to the Patent-Laws of other countries and their working being very deficient; but though this may be a good reason for having another inquiry, we anticipate that it will only confirm the verdict of impartial judges against the present system.
Extract from the “Saturday Review,” June 5, 1869.
If the interesting debate on Mr. Macfie’s motion proved, what scarcely needed proving, that our existing Patent-Law is extremely unsatisfactory in its working, it equally proved that the arguments against having any Patent-Law at all are not less unsatisfactory. If it were practicable to discriminate between true and sham discoverers, and to ascertain with accuracy to whom the merit of every new invention really belonged, and if it were at the same time easy to secure to the man who increased the common stock of useful knowledge the fruit of his own brain, no one would dream of questioning the moral claim of an inventor to this peculiar kind of property, any more than we now question the justice of giving to an author a copyright in his own work. But when it is found, or supposed, to be extremely difficult to do justice to one man without causing much inconvenience and some occasional injustice to a thousand others, there is a strong temptation to sacrifice individual rights to public expediency. The advocates of a total repeal of the Patent-Laws generally insist (as Sir Roundell Palmer did in his ingenious speech), not only that they do a great deal of indirect mischief, but that the discoverer of the most invaluable invention has no claim to any reward except the consciousness of having enabled a number of other men to make colossal fortunes. That such arguments should be used at all proves little more than an uneasy consciousness that the proposed repeal would work a certain amount of real injustice. Men who are strongly impressed with the expediency of ignoring the claims of inventors struggle to escape the reproach of injustice by stoutly denying the rights which they desire to disregard. We would rather see the subject discussed with more courage and frankness. There are undoubtedly instances in which private claims must yield to public expediency, and any persons who think the case of inventors to be one to which this rule is applicable would do better to say so openly than to try to persuade themselves and others that those who have created the means of making wealth have no claim to share in the fruits of their discovery. Sir Roundell Palmer affected to dispose of the whole difficulty by saying that there were essential differences between Copyright and invention; but a principle is not the less sound because you may illustrate it by a case which is not on all-fours with that to which you apply it. And the distinctions between Copyright and invention are by no means so radical as is sometimes assumed. The Copyright-Laws give an author a special monopoly because it is conceived that the production of a new work entitles him to a return proportioned to its merit, as tested by the demand for it in the market. The Patent-Laws give an analogous monopoly to an inventor on precisely the same moral grounds. To say, as Sir Roundell did, that a book was a new creation, whereas an invention was merely the application of the facts and the laws of nature, which are common property, was to speak like a lawyer rather than like a philosopher or a man of science. Whatever other distinctions may be insisted on between Copyright and invention, this, at any rate, will not bear a moment’s examination. It may have a colour of plausibility in the case of a poem, a play, or a novel, though even there it is not altogether sound. But literature includes history, science, philosophy, mathematics, and the like; and every book on these and most other subjects, so far as it has any value, is based entirely upon facts and laws which are no more the creation of the author than are the facts and laws on which an invention may be founded. In each case there is creation in the same qualified sense. Say that a man creates what he reveals, or what he proves, and the author and the inventor are equally entitled to be called creators. Say, on the other hand, with perhaps more accuracy, that to proclaim a previously unnoticed truth is only to announce what has all along existed in nature and nature’s laws, and some more modest title than creator must be assumed by author and inventor alike. The difference between the two cases is not a difference of principle, but of convenience. The thing created, either in the book or the machine, is the thought or the method; but property in a thought or a method is not what the law allows in either case, simply because it would be impossible to give an effect to such an enactment. What the law does is to lay hold of the most profitable mode of using the idea, and say that for a limited time no one but the originator shall be at liberty, in the one case, to print the book or a colourable imitation of it; or, in the other, to manufacture or use the machine or any colourable imitation of that. It is impossible, we think, to deny the abstract right of a real author or inventor, and more palpably impossible to deny it in the one case while you admit it in the other.
Apart from his abstract reasoning, there is much in Sir Roundell Palmer’s argument to show wide differences in practice between the cases of authors and inventors. It is undoubtedly true that in a vast majority of instances the patentee of an invention is not the person to whom the largest share of the merit belongs. The rule, equally in scientific discovery and in practical invention, has almost always been found to be that, when a great step in advance is completed, no one man can claim the entire merit. If one wins the race, there are mostly several competitors who get a place. Even Newton had rivals treading on his heels, and his great discoveries would not have been lost, though they would certainly have been delayed, if his marvellous intellect had never been directed to science. The thought of the world, as represented by a little cluster of inquiring minds, was fast ripening for the harvest which Newton was the first to reap. But no one on this account seeks to deprive Newton of his glory. And we do not see why the pioneers of practical invention should be deprived of the reward for which they work merely because what they have done is but to forestall what would have been accomplished, sooner or later, without them. The real vice of the Patent-Laws is that they give a full fourteen years’ monopoly to the first inventor who proclaims himself, even though it may be clear that he has not a week’s start of a host of competitors. In order to make sure of adequately rewarding a very few real benefactors of mankind, you give an inordinate privilege to a great many who have done nothing at all in proportion to what they receive; and not only do you prohibit every one from borrowing the patentee’s ideas, but you actually forbid a second inventor, who has arrived at the same result without ever having heard of the first, to make any use for fourteen years of the conclusions which he has worked out by his own unassisted thought and labour. This, of course, is a gross injustice, and the opponents of the Patent-Laws say that no machinery can be devised by which it can be escaped. Another serious objection to the system, as worked in this country, is the indiscriminate grant of a Patent to any one who claims it, leaving it to future litigation to determine whether the Patent is good or bad. The Law Officers of the Crown receive an enormous amount of fees for Patent business, and it is their function to determine in the first instance whether a primâ facie title to the privilege is made out. It might be supposed that, if the identical invention has been patented or publicly used before, or if, on the face of it, it is no invention at all, the application would be refused. Nothing of the sort happens. No examination of the records at the Patent-office takes place to ascertain the existence or non-existence of earlier Patents for the alleged discovery; and even when there is an opposition, and it is clearly proved (as in the case of the bullet which Mr. Metford devised and Mr. Whitworth afterwards patented) that there is nothing new in the invention, the Patent is allowed to go, in order that the claimant may have the privilege of a jury to try an imaginary right. This is the way in which the crop of litigation is raised which is so often pointed to as a reproach to the law. The present Attorney-General, it seems, has introduced the innovation of rejecting the claims of patentees where the alleged inventions are palpably frivolous, but something much more decided than this is needed to make the preliminary investigation of any real value. The vast number of worthless and catching Patents taken out merely as traps for manufacturers is perhaps the greatest nuisance incidental to the system, but it is by no means the most difficult to suppress.
All these evils must be cured, or sensibly abated, if the Patent-Laws are to survive; and if this is to be done at all, it can only be by an effective preliminary inquiry. That there are difficulties to be encountered in such a scheme cannot be denied, but it is not yet shown to be so complete an impossibility as Sir Roundell Palmer assumed it to be. With the best machinery a few Patents would slip through which, on closer investigation, would be held to be bad; but even the clumsiest methods of bonâ fide inquiry would have sufficed to weed out some ninety per cent. at least of the existing Patents. A mere search by proper officials at the Patent-office, with the aid of the excellent indexes which they possess, would settle the fate of the great majority of applications, and the opposition of rival inventors or manufacturers would expose a great many more if it were not understood, as it is now, that any opposition before the Law Officers is a mere waste of time. Under the existing system we have a tribunal which is not, as a rule, competent for the work, and which makes no real effort to do it. The Law Officers give up the investigation in despair; but it by no means follows that a scientific tribunal, with all the aids which the Patent-office could supply, might not be found extremely useful. The experiment, at any rate, has not been tried; and it is scarcely fair to inventors to deprive them of all protection merely because a perfunctory inquiry by an unscientific and busy lawyer may have failed to exclude from the list of patentees a formidable body of mere impostors.
We take it to be quite clear that the attempt to do justice ought not to be given up until the impossibility of putting the law on a satisfactory footing is clearly made out. Mr. Mundella is probably as ingenious as most manufacturers, but he says that all the inventions in which he is interested came out of the brains of his workmen, and that they are sharing with him and the public the benefit of their discoveries. Apart from the serious inconveniences caused by the law as it is now administered, no one could desire to confiscate the ingenuity of artisans for the benefit of master manufacturers. As matters stand now, a poor patentee is generally helpless to turn his invention into money without the assistance of a capitalist; but to allow a master, because he is rich enough to use an invention, to pick the brains of a clever artisan without making him any acknowledgment, would be to aggravate the plutocratic tendencies of the age, which most serious thinkers would gladly mitigate as far as possible. The product of invention and thought is a very difficult kind of property to protect, but it is not on that account the less deserving of protection, if any means can be devised for granting it without too grave an interference with the commercial freedom which public expediency demands. The subject requires a more searching investigation than it has yet received. Lord Stanley’s Commission scarcely touched the root of the matter, and no attempt has even been made to test the feasibility of such suggestions as the report contained. It is for those who attack the law to make out a conclusive case, not merely against the particular system in force, but against every possible scheme for securing to inventors the benefit of their own work. And this has certainly not yet been done.