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

by Unknown

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).

M. van Zinnicq Bergmann was not sufficiently prepared for the discussion while the project was in Committee. He feels much sympathy for all such measures as tend to do away with impediments to trade and industry. At the same time, people ought to discriminate between the kind of protection which is a hindrance to industry, and may be called monopoly, and the one to which property is entitled on the part of the State.

At this part of his speech the hon. member indulges in extensive remarks on the right of property. According to Roman law, the right of property was a “jus quod natura omnia animalia docuit.” But that definition is not a correct one, as the right of property is especially maintained in civilised society.

After that, the hon. member launches himself into allegory. Try, quoth he, to drive the lion from his den; he will defend it until his last drop of blood! Look at the boy who snatches the young and tender bird from its nest; the mother will pursue the robber, and not leave him. Now, he should like to know whether an artist, an inventor, an author, has, or has not, a right of property in his work which entitles him to the benefits to be derived from it? This question he answers in the affirmative, and refers to Soy, Massé, and the “Assemblée Constituante” of France in December, 1791. And why should there be no right of property? Perhaps on account of an article in the Civil Code, which says, “possession vaut titre,” or of a restriction to a greater or smaller lapse of time? We are continually referred to England and the United States. But what is England? England is a country at the same time emancipated and in course of emancipation. Duly considered, England will be found to be, internally, in about the same state in which the Netherlands were before 1795, or before the end of the sixteenth century—(laughter)—but, the hon. member adds, always accompanied by such improvements as rulers have successively granted with regard to Patents. England may have had its commotions; but, nevertheless, charters have never been otherwise but granted, and the privileges, exacted though they may have been, were received at the hands of the King. And what have we been doing? We expelled our Stadholder, and got annexed to France; the principles of 1798 have taken root in our country, and continue to be the basis for present action. The hon. member further argues that Patents are granted to emancipated slaves, but free citizens take out “brévets d’invention.” He is of opinion that it is a wrong impression that Patents are to be placed upon a line with the abolition of guilds. There is no connexion whatever between these institutions, and this he demonstrates by reference to French authors. Even taking Michel Chevalier’s doctrines for granted, he asks, “Could such difficulties not be obviated through a reform of the Patent-Law?” Once at a time, Alexander made himself famous by cutting through the Gordian knot. That was a despot’s doing; he might have deserved more fame had he succeeded in disentangling the knot. Such should be the final aim the legislator ought to strive to reach. Finally, the hon. member puts forward the question, whether the passing of the law now before the House might not involve the country in international troubles; for, Switzerland alone excepted, every country in Europe has its Patent-Law. Besides, we are aware that, as far as literary right of property is concerned, a neighbouring country has, against its will, been compelled to maintain it. We, at our turn, might once have to come back to what we want at present to repeal. Let us, therefore, be cautious.

M. Heemskerk Azn remarks that continued allusions are being made to reaction. Generally speaking, such allusions are made out of personal motives; but he should very much like to see a real live reactionist, who would like to repeal what progress has brought us. There may possibly be people extant who would wish to do so, but as for him, he is not aware of any reactionary plots against our institutions, or the effects of science and progress; yet this very project now before the House, which he considers to be reaction, has been most favourably received in Committee. Should the Netherlands Legislature sanction it, then he shall have to believe in the existence of reaction. For it is an easy thing to find evidence of reaction in the project under discussion. M. van Zinnicq Bergmann has already more or less demonstrated it. He (M. Heemskerk) will add a few more particulars. Where, the hon. member asks, lies the origin of Patents? In the cultivation of a free spirit, and the ennobling of labour; and of these, the right of protection existed since time immemorial. Deviating from the civil rights, the Stuarts, through favour or arbitrary motives, granted “privileges;” but the Free Parliaments saved Patents, that protect inventions. Moreover, this principle has been adopted in the most freedom-advocating of constitutions—viz., that of the United States. The same may be said with regard to France. On the 31st December, 1790, the “Assemblée Constituante” resolved that the right [of property] in inventions should be guaranteed, and in this resolution originated the first French Patent-Law. The Netherlands would be the very first country on earth (with one exception only) to deviate from the principle of a right of property in inventions, in a moment, when public opinion, dissenting thereby from a few economists, everywhere declares in favour of Patents. He reminds the House of the immense influence inventions have had on history and society, such as the invention of printing, of the compass, steam, gas, &c. And would it be fair to withhold from those who promote progress that protection which is legally due to them; whereas there is no end of provisions in the code protecting mere material property, such as the right of inheritance until the twelfth degree, lotteries, stock gambling, and the like? Government has evidently been aware of the circumstances standing in the way of the project, as is proved by page 1 of the Memorial of Explanation; but it shrinks from the logical consequences. The Patent system is based upon the principle that nobody should enrich himself by another man’s property. This has also lately been argued at length in Savornel Lohman’s pamphlet. The hon. member gives it as his opinion that in this matter an author is in exactly the same position as an inventor. If Patents be abolished, we shall logically have to come to repealing Copyright as well. A counterfeited edition is nothing else than the imitation of an object of industry; the writer is an author, but the inventor is no less an author. Amongst others, he refers to a speech from Lamartine (as reporter of a Committee in the French Legislative Chambers, which consisted of the then most eminent economists) on the Patent-Law of 1844, which is still in force. He insists that the justice of his system of maintaining the right of property is proved beyond a doubt by the ever and again recurring circumstance of an inventor lacking capital for a practical application of his lucubrations. Still, he often obtains the requisite means; and now everybody will be enabled to imitate the result of his thoughts and labour, and to reap the profits to accrue from the same. He points to Professor Visvering’s work on practical economy, who also recognised that, if no exclusive Patents be delivered, still inventors had a right to a remuneration of some kind. Those who oppose the Patent-Law contend that an inventor is not entitled to a reward; he admits that no reward should be expected, but most assuredly the inventor may lay claim to remuneration for the labour expended on the invention. We are referred to Switzerland, where no Patents are given. But what of that? In the first place, most of the industrial Cantons of Switzerland are clamorous for a Patent-Law; secondly, the Swiss, as a body, equally want the measure to be put through; and, in the third place, the hon. member points to the large benefits which, according to Klosterman’s recent work, Swiss industrials derive from foreign Patent-Laws. It is alleged that the number of Patents which are being delivered [in Holland] is but small. But, says M. Heemskerk, foreigners, on the contrary, claim that the number is large. There exists apprehension of law-suits; but can that be brought to bear upon the repeal of the Patent-Law? In that case, landed property would be the least tolerable, as the proverb says—“Qui terre a, guerre a.” Moreover, no three law-suits are known to have sprung up from Patents in this country since the law has been in force. In Belgium, it is true, much action has of late been taken in order to do away with Patents; but there, as well as in Prussia, the movement is rapidly decreasing. The hon. member refers to the “Nederlandsche Industrieel,” a periodical which, though strenuously in favour of abolition of Patents, nevertheless mentions in its issues of 14th and 21st of February, and 20th of June, what has lately occurred in this respect in Germany and elsewhere. In Great Britain also the question has lately been discussed in Parliament, but the member who moved it did not even take the votes upon it, but quietly dropped the matter; such was the impression made upon his mind by the arguments brought forward [!]. The subject has equally engrossed the attention of the “Société Economique” of Paris, when eminent economists, amongst whom Wolowski, declared in favour of Patents. This is mentioned in the Economistes of June [see [page 164]]. For all these reasons the hon. member recommends to the serious consideration of the House that, for the time being at least, the rash Act be not consummated. Do not throw such a stain upon your Legislature, he emphatically exclaims. Do not step backward; beware of relinquishing the protection of any description of property. Do not cripple the law by ignoring a principle which protects the fruit of human intellect. Beware of laying violent hands upon property, of whatever kind it may be. Let us do better than that; let us reject the bill. Persuade Government, there being no haste whatever, to propose to the Chambers that the subject be deferred until next Session. At all events, nothing would be lost by it. Meanwhile Government would be enabled to reconsider the subject, and to make inquiries abroad as to the state of legislation on this head. No prejudice would be occasioned by deferring the matter; for the hon. member expresses his firm belief that a dangerous measure is about to be adopted with regard to a subject with which the utmost caution should be observed.

M. de Bruyn Kops would not enter into all particulars, the matter having been treated at length in the sundry documents relating to it; but he would restrict himself to a refutation of M. Heemskerk’s arguments. He is in a position to place himself on a very simple point of view. The law of 1817 is generally disliked, in principle as well as in its details. It has been admitted that it does not give the inventor any guarantee, and this on the ground of the issue of some law-suits which have sprung up from it. So Patents, far from giving a security, hinder the general public and impede industry. It is a fact worthy of notice, that the leading industrial organs, such as the Chambers of Commerce and Factories, the Industrial Society, the Union for Promoting Mechanical and Manual Industry, and the Nederlandsche Industrieel, unanimously have declared against Patents; so have a score of industrials. Are these not facts worth more than a few considerations about a right to special protection? Add to this the circumstance that in those countries where Patents do exist difficulties are gradually increasing; as, first of all, the question arises, whether the invention is really a new one; and to ascertain this is very often a most arduous task. Then, again, Patents are being asked for mere trifles. Within a short period, 126 Patents for improving bicycles have been taken out in England. It thus becomes necessary to make a minute inquiry into the usefulness of the matter. This has been the cause that in France they have gone to the other extreme—granting Patents “without guarantee by Government.” Patents are not consequent upon the recognition of man’s, or inventors’, rights; they are the remainders of the guild system, and of protection to national industry in exclusion of foreign. It cannot be a question of right of property, for, if such were the case, Patents would not be granted for a fixed term of years. If invention means right of property, why, then, that arbitrary restriction? Originally the idea may have been a good one, but in the sequel it has proved a failure. There are examples of different persons having made the same invention without having any knowledge of each other. It is consequently becoming almost a matter of impossibility to ascertain priority. The hon. member says that all endeavours to bring about a practical result out of an originally elevated idea have utterly failed; that the guarantee of the right is, as has been proved by means of the report in England, at best uncertain and unsatisfactory; and that when the project shall have been made law, he will rejoice at his country having been foremost in leaving the wrong track.