REMARKS ON A RECENT ARTICLE.
The Westminster Review for July contains an article on Patents. Its proofs should have been corrected with more care. In my answer to question 1947 in the Royal Commission’s Report, the word “patented” in the following the Review misprints “neglected:”—
As a matter of fact, patentees have patented things of so little value.
And in question 1954 a worse mistake is made by substituting “some” for “none” in the following:—
There being 400 Patents now in existence affecting your trade, none of which are made use of by you.
I have right also to complain of mistakes which do not originate with the printer. The following opinions and arguments imputed to me I disclaim:—
Had Mr. Macfie said this, we should not have been surprised. It closely resembles his contention that a book should be protected because it is something tangible, whereas an invention is something which, if not invisible, is in the nebulous condition of an idea.
What I wrote will be found below, [page 241]. My argument is, that the subjects of Copyright being tangible can be identified as the author’s production, and nobody else’s; and that the subjects of Patent-right being modes or plans, belong to the region of ideas which may easily occur to anybody besides the first inventor.
Again: the reviewer says of Lord Stanley:—
The latter, while supporting Mr. Macfie on the main issue distinctly repudiated his leading arguments.
This would be strange if true, seeing I coincide in all his Lordship’s arguments. How, then, can he, twelve pages further on, say again:—
As for Lord Stanley, he did not hesitate to dissent from Mr. Macfie’s arguments, while giving a qualified support to his motion.
Perhaps I should object to the following representation:—
It has been proposed to replace Letters Patent by grants from the national purse. This is to revert to an obsolete custom. During the eighteenth century it was fairly tried, and the result should serve as a warning now. Seventy thousand pounds were distributed among plausible inventors in the course of fifty years. The advantage to the public was nil. The encouragement given to impostors was the only tangible result. Johanna Stephens obtained 5,000l. for disclosing the secret of her cure for the stone. A Mr. Blake got 2,500l. to assist him in perfecting his scheme for transporting fish to London by land, while a Mr. Foden was greatly overpaid with 500l., “to enable him to prosecute a discovery made by him of a paste as a substitute for wheat-flour.” Give a man a sum of money for his invention, and you run the risk of paying him either too much or too little. Give him a Patent, and you secure the invention for the public, while his remuneration in money is absolutely determined according to its value.
The system of State-rewards has not been tried. The reviewer’s cases do not apply. The scheme that I submit could never be abused so as to sanction such follies. It may not be a generous and royal way of dealing with inventions, but it is equitable and safe; whereas, pace the reviewer, the remuneration from a Patent is not at all “determined according to its value” (that of the invention).
This interesting article is remarkable for what it omits rather than what it contains. Like almost every, if not every, defence of Patents which I have seen, it ignores the grand objection to Patents—their incompatibility with free-trade. From the beginning to the end there is not in the article the slightest allusion to the hardship they inflict on British manufacturers in competing with rivals in home, and especially in foreign, markets. Reformers of the Patent system fail to realise this—that no conceivable mere improvement, even, though it should clear away the present encumbrance of a multiplicity of trifling Patents, can be more than an alleviation of the mischief now done. The remaining few would be the most important and valuable ones, and therefore the most burdensome, because those which, on account of the heavy royalties that will be legally claimed, must subject British manufacturers to the largest pecuniary exactions—exactions that they cannot, but their rivals often would, escape.
The writer of the article has a way of pooh-poohing adverse arguments, even when he mentions them.
That no two men produce the same book is true. It is almost as difficult for two men to give to the world two inventions identical in every detail, and equally well-fitted to subserve the same end. Much has been said about the ease with which this may be done, but authentic proofs are lacking of this having been done on a large scale.
And
Again, then, we ask for proofs of the allegation that six men are often on the track of the self-same invention.
Why, the simultaneousness, or rapid succession, of identical inventions is notorious.
He goes in the face of the strongest evidence when he says—
It is doubtful even if these objectionable Patents do any real harm. An invention which will answer no purpose is simply useless, whether it be patented or not.
And, elsewhere,
The truth must not be blinked that, if a multiplicity of worthless Patents be an evil, if the profits of manufacturers are diminished owing to the battle they have to fight with patentees, if the bestowal of Patent-right be the source of mischief and the occasion of pecuniary loss, the like complaint may be laid at the door of Copyright, and its abolition might be demanded with as great a show of fairness.
How lightly he can regard arguments of his opponents is also seen in the following passage:—
Another of Lord Stanley’s objections is that the right man hardly ever gets the reward. As he puts it, litigation being costly, and the grant of Patent-right merely amounting to permission to take legal proceedings against infringers, the poor man has no chance of asserting and defending his rights. “If a poor inventor took out a Patent, and the Patent promised to be productive, in nine cases out of ten he was obliged to sell it to some one who could command capital enough to defend it in a court of law.” We submit this proves nothing more than that the poor inventor, in nine cases out of ten, deserves our pity. But then, if these nine inventors are unfortunate, that does not justify the ill-treatment of the tenth.
The source of the writer’s idea, that cessation of Patents is ill-treatment, lies in the assumption which pervades the whole article, that to inventors belongs property in inventions—i.e., exclusive right of property; or, in other words, right to require the State to use its power to prevent other persons from doing what they do, and what every other man has a natural and inalienable right to do.
Still further: shutting his eyes to the difficulty of mollifying the grievance of invention monopoly by means of “compulsory licences,” which the Royal Commission declared they found no way of rendering practicable—and, I add, if practicable, would be no cure of the evils, which are radical—he writes—
If to this were added a system of compulsory licences, the amount of royalty to be determined by a tribunal, in the event of the parties failing to come to terms, nearly all the really serious and valid objections to the working of a Patent-Law would be obviated.
Yet, believing himself the friend of the public, in spite of all the strong arguments against his views and the little he himself adduces for them, he very complacently tells us—
Speaking on behalf of the public, we maintain that a Patent-Law is necessary in any uncivilised community, because, without its protection, industry cannot flourish, and ingenuity can have no scope for its triumphs.
The reviewer can hardly have consulted any practical man when he pronounces it—
absurd to plead that a Patent has been infringed in ignorance, when it is certain that the ignorance, if not wilful, is wholly inexcusable.
Undoubtedly, infringements often are not acts done blamelessly in ignorance; still, I would be surprised in most cases if the infringer knew he was infringing. He is not likely to know it in making trivial improvements, for how can he know without subjecting himself to no small trouble and expense, such as ought not to be laid upon him.
There is an important point as to which the reviewer and I perhaps differ, “the extent to which Letters Patent give a monopoly in ideas.” The fact is, that the whole breadth of a principle is patentable, provided any single mode of applying it can be specified.
The reviewer, adverting to the changes which have taken place in the Law of Patents since the days of Elizabeth, characterises them as “changes towards greater freedom of action on the part of the State, and greater liberty of choice on the part of the people.” This, I confess, I do not understand, except so far as it may mean there has been less and less control exercised by the State, and more and more advantage taken of this supineness by all sorts of persons. I am quite prepared to admit that in my speech I have exhibited rather a popular than a strictly legal and logical view of the meaning and legitimate applicability of the words in the statute, “nor mischievous to the State by raising prices.” All that I maintain is this,—that the spirit of the proviso is opposed to any individual Patent that keeps prices up at a level below which, if there were no grant, they might, by the natural progress of industry, be expected to fall, and to a Patent system that characteristically has that effect and is also chargeable with “hurt of trade” and “generally inconvenient.”