PATENT RIGHT.
Paper by Mr. J. Stirling, Presented to the Glasgow Chamber of Commerce, and published by permission.
First: Patent-right cannot be defended on the ground of justice.
The object of a Patent-Law is to establish a “property in ideas:” but this involves the double fallacy that thought can and should be appropriated. The end of all law is to ensure the universal freedom of human action. Hence the law of property secures to every man the product of his own labour. It gives to each an exclusive right to the material embodiment of his productive energy, to be possessed or alienated by him at will. But in so doing it leaves unrestricted the productive energy of every other man. The freedom of one (as represented by his property) is thus consistent with the freedom of all.
But thought cannot be appropriated. In thought there is no material product to be made the object of a proprietary right. There is no “thing” to be possessed or alienated. The law can only, therefore, give the exclusive use of an idea to one person by injuriously limiting the intellectual activity of all others. A Patent-right, therefore, is less a “property in ideas” than a monopoly of thought.
Again, a true right of property is universal in its application; it extends to the products of all industry, however humble. But it is instinctively felt, that a proprietary right applied to every individual idea would be essentially absurd. Patent-Law, therefore, is essentially partial in its application. It picks out certain favourite ideas, and confers on them an anomalous and oppressive privilege. There seems no good reason why the ideas of inventors should be especially favoured. An invention is a means to a special end, and should be recompensed by him who has the end in view. If any ideas deserve a public recompense, it is those general ideas whose application is of universal utility. But Patent-Law ignores the discoverer of general ideas, and while conferring rewards, at the expense of the community, on empty schemers and puffing tradesmen, it passes over the services of a Newton or an Adam Smith. The law of Copyright, indeed, gives to the philosopher a right of property in his published and material works, but it leaves (most justly) his ideas to be used and elaborated by whoso can and will.
Again, Patent-Law is founded on a conventional, not a natural, right. It is not, like the ordinary law of property, based on an universal intuition of the human conscience, but it is one of those laws by which unwise legislators have striven so long and so vainly to give an artificial stimulus to human industry. Hence the arbitrary nature of its enactments. The ordinary right of property is unlimited in its duration—passing from generation to generation. But common sense revolts, instinctively, against a perpetual monopoly of thought. A Patent-Law, therefore, can never be more than a weak compromise with principle—the legislator undertaking to secure to the patentee his ideal property during the biblical term of seven or fourteen years. Now, if the inventor have a right at all, he has a right to more than this. To cut down a real and acknowledged right of property to seven, or even fourteen, years were a grievous wrong. Patent-right goes too far, or not far enough. Either a Patent is no right at all, or it is a right for all time. If ill-founded, it is a robbery of the public; if well-founded, of the patentee.
Mere priority affords no good ground for the exclusive right to an invention. The free exercise of thought is the common right of all. Wherefore if A excogitate a principle to-day, and B, by independent thought, excogitate the same principle to-morrow, both have an equal right to benefit by the discovery; and A has no natural right to debar B from the legitimate fruit of his intellectual effort. It may be even that A had no real priority of thought, but was only more knowing, more greedy, or was simply nearer to a patent office, and, though latest in arriving at the idea, was the first to secure a legal monopoly of its use. To found a right on such a race for priority is evidently irrational. The simultaneousness of discoveries and inventions by different minds, is a well-established fact in the history of science. Certain facts and reasonings, all tending in a given direction, are before the world. These act simultaneously on various minds, and produce in each the same development of thought. Now, with what justice do we pick out one of these many thinkers and give him a monopoly of the common thought? Nor is the injustice confined to the original idea, of which we grant a monopoly. By tying up one idea, we stop the whole course of thought in a given direction, and thus interfere generally, and to an indefinite extent, with the intellectual activity of other men.
The inventor benefits by the ideas of the community, and has, therefore, no right to a special privilege for his idea. The universal thought of mankind is a common good; all benefit by it freely, and all are bound freely to contribute to it. Every thinker owes an incalculable debt to society. The inventor has the benefit of all foregone human thought, of all existing civilization. He has the unbought advantage of all laws, all language, all philosophy. He has the free use of all the methods and appliances, spiritual and material, which have been painfully elaborated by the thinkers and workers of all time. Why, then, should he alone have an exclusive privilege, in respect of the infinitesimal addition which he may make to the work of ages?
Secondly: Patent-right cannot be justified on the lower ground of expediency. The object of a Patent-Law, in the supposed interest of the community, is to stimulate invention. But invention needs no artificial stimulus. Nature has amply provided all needful and wholesome encouragement, in the additional profit afforded by improved methods of production. In the natural course of business, every producer is spurred on by his material interests to invent for himself or to encourage the inventions of others. The whole history of industrial progress is an unceasing striving after improvement, with a view to profit. The few thousand patented inventions are as nothing compared with the innumerable improvements produced daily and hourly in the ordinary course of business, with the vulgar view of gain. The best stimulus to invention, therefore, will be found in the natural competition of producers; but Patent-Law destroys this competition by an unjust monopoly, and thus tends indirectly to weaken the natural impulse to improvement.
Invention may be even over-stimulated. In all her arrangements, Nature provides for a due equilibrium of powers and tendencies. Thus the various faculties and temperaments of man—the sanguine and the cautious, the speculative and the practical—are nicely balanced. The result, when things are left to themselves, is a happy combination of ingenuity and caution, and, as a consequence, a continuous but prudent course of improvement. But if, by conventional rewards, we give a factitious impulse to the inventive faculty, we destroy the natural equilibrium of capacities, and foster a scheming, fanciful turn of mind, at the expense of thoroughness and a patient working out of sound ideas. This result has actually occurred in the United States, where the factitious value attached to invention has tended to produce an almost total sacrifice of solid workmanship to a flimsy ingenuity.
Patent-Law does not even attain its proposed end of quickening the progress of real improvement; on the contrary, it is found in practice seriously to hinder it, the monopoly granted to one inventor necessarily obstructing the progress of every other. Hence, an eminent inventor has lately said: “The advance of practical science is now grievously obstructed by those very laws which were intended to encourage its progress.” That Patents seriously obstruct the natural development of ideas, is best seen by the sudden advance which usually follows the expiry of important Patent-rights. The natural course of improvement, dammed back by artificial obstruction during the continuance of the Patent, is set free on its conclusion, and a new impulse is given to the development of ideas and their practical application.
But the public is not the only sufferer by Patent-right. Without doubt the heaviest evil falls on the patentee. The inventor is led to give an excessive development to his talent, and is seduced into reliance on a law that can give him no substantial protection. The difficulty of defining original inventions is a practical bar to a satisfactory Patent-Law. The whole history of Patents is a long-continued story of litigation and disappointment; and the more admirable the invention, the greater is the certainty of difficulty and loss. It must be a worthless invention that the patentee is left to enjoy in peace. Whenever a Patent is worth pirating, the inventor may depend on being involved in a maze of litigation that disturbs his peace and ruins his fortunes. And the more the Patent privilege is extended, the worse the evil becomes; the intricacy and the multiplicity of details baffling every attempt to define the rights of competing inventors.
At this moment the heaviest complaints against Patents come from our great inventors. They repudiate the proffered privilege as “injurious to inventors,” and complain of being “borne down by an excess of protection.” As is natural, they who are most occupied with the advancement of invention, feel most acutely the grievous obstructiveness of the Patent-Law. Not enough that they have to battle with natural difficulties; at every step they meet obstructions which a well-meaning but perverse law places in their way. Nor do these obstructive privileges confer any real advantage on the empty schemers whose monopoly they establish: they merely give them the vexatious power of hindering the progress of better men. The mere “pen-and-ink inventor” has neither the energy, nor the perseverance, nor the practical ability to mature his crude “idea;” but to this man the law awards the dog-in-the-manger privilege of effectually obstructing the natural progress of practical improvement.
These practical evils the advocates of Patent-Law do not deny; but they attribute them to the defective execution of the law, not to its vicious principle. Hence a never-ending cry, as in the case of all bad laws, for more legislation, for more stringent regulation, for stricter investigation, and more thorough registration of Patents. But no tinkering at details can avail. The whole system is radically unsound; and the only effectual remedy is to lay the axe to the root.
A sentimental plea in favour of Patent-right has been set up by some, on the ground that the inventor—the man of thought, as he is called—must be saved from the toils of the capitalist, ever ready to prey on his superior intellect. This silly sentimentalism could only originate in an utter ignorance of the relations which naturally subsist between capital and talent. The capitalist is the natural ally of the inventor, whom it is his interest to employ and encourage. It is a chief part of the business of every producer to search out every one who can help him to improved methods of production; and the remuneration which, in one shape or another, it is the interest of the capitalist to offer to the really clever inventor, will always form a surer and more substantial reward than the delusive privilege of a legal monopoly. As to the complaints we hear of neglected talent, we may safely conclude that they arise more from the exaggerated pretensions of conceited schemers, than from any obtuseness to their own interests on the part of practical men of business, who refuse to profit by their inventions.
On the whole, Patent-Law seems a blunder, founded on the antiquated notion of giving State encouragement to certain favoured modes of human activity. It is no part of the duty of the State to stimulate or reward invention; the true function of Government is to protect, not to direct, the exercise of human energy. By securing perfect freedom to each individual, we shall best provide for the progress of the community; nor can any law be conceived more detrimental to the common weal than one which lays restrictions on perfect freedom of thought.