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Public attention has for some little time been withdrawn from the consideration of the Patent-Laws; but, if we may judge from the discussion upon the subject in the House of Commons last night, the day is at hand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.