It is useless to multiply these examples: what the law meant to monopolize is, as I said just now, not the idea, but the fact; not the invention, but the occupancy. As if the idea were not the category which includes all the facts that express it; as if a method, a system, were not a generalization of experiences, and consequently that which properly constitutes the fruit of genius,—invention! Here legislation is more than anti-economic, it borders on the silly. Therefore I am entitled to ask the legislator why, in spite of free competition, which is nothing but the right to apply a theory, a principle, a method, a non-appropriable system, he forbids in certain cases this same competition, this right to apply a principle?" It is no longer possible," says M. Renouard, with strong reason, "to stifle competitors by combining in corporations and guilds; the loss is supplied by patents." Why has the legislator given hands to this conspiracy of monopolies, to this interdict upon theories belonging to all?
But what is the use of continually questioning one who can say nothing? The legislator did not know in what spirit he was acting when he made this strange application of the right of property, which, to be exact, we ought to call the right of priority. Let him explain himself, then, at least, regarding the clauses of the contract made by him, in our name, with the monopolists.
I pass in silence the part relating to dates and other administrative and fiscal formalities, and come to this article:
The patent does not guarantee the invention.
Doubtless society, or the prince who represents it, cannot and should not guarantee the invention, since, in granting a monopoly for fourteen years, society becomes the purchaser of the privilege, and consequently it is for the patentee to furnish the guarantee. How, then, can legislators proudly say to their constituents: "We have negotiated in your name with an inventor; he pledges himself to give you the enjoyment of his discovery on condition of having the exclusive exploitation for fourteen years. But we do not guarantee the invention"? On what, then, have you relied, legislators? How did you fail to see that, without a guarantee of the invention, you conceded a privilege, not for a real discovery, but for a possible discovery, and that thus the field of industry was given up by you before the plough was found? Certainly, your duty bade you to be prudent; but who gave you a commission to be dupes?
Thus the patent for invention is not even the fixing of a date; it is an abandonment in anticipation. It is as if the law should say: "I assure the land to the first occupant, but without guaranteeing its quality, its location, or even its existence; not even knowing whether I ought to give it up or that it falls within the domain of appropriation!" A pretty use of the legislative power!
I know that the law had excellent reasons for abstaining; but I maintain that it also had good reasons for intervening. Proof:
"It cannot be concealed," says M. Renouard, "it cannot be prevented; patents are and will be instruments of quackery as well as a legitimate reward of labor and genius. . . . It is for the good sense of the public to do justice to juggleries."
As well say it is for the good sense of the public to distinguish true remedies from false, pure wine from adulterated; or, it is for the good sense of the public to distinguish in a buttonhole the decoration awarded to merit from that prostituted to mediocrity and intrigue. Why, then, do you call yourselves the State, Power, Authority, Police, if the work of Police must be performed by the good sense of the public?
As the proverb says, he who owns land must defend it; likewise, he who holds a privilege is liable to attack.