It is probable enough that the Patent-Laws will be abolished ere long, though the full force of the real objections to them was perhaps not brought out in the debate last week on Mr. Macfie’s motion for their abolition. Sir Roundell Palmer was too metaphysical. The supposed distinction between the copyright of a book and a Patent—that no two men will hit upon the same composition even in substance, while they will hit upon the same idea for an invention—does not prove anything. If a case of general utility could be made out, the abstract justice of giving a man the monopoly of an idea, should he be the first to come upon it, would not be much considered. Lord Stanley, who avoided this mistake, dwelt too much upon such minor points as the practical failure of the law to secure a reward to the inventor and the frequent disproportion between the reward and the service rendered, which are points of no consequence so long as the public is generally a gainer by the law. Lord Stanley, however, touched upon the true reason when he referred to the injury of third parties, which the present law occasions, by reason of Patents being granted to only one out of half-a-dozen persons who come upon the same inventions, or to one of a series of inventors who improve upon each other’s work, and by reason also of the general interference with manufacturing. What we should have liked to see fully stated was the peculiarity of the present circumstances of the country in which these things are true. The statements in fact amount to this—that there is a large number of inventions which Patents are not required to encourage; that these are made as ordinary incidents of business; that invention, improvement of mechanical and chemical processes, is itself a part of a manufacturing business; and that in this way the granting of Patents only impedes manufacturers to whom inventions would naturally come. The full force of these facts cannot be felt unless we recognise that a change in the character of invention has taken place. The Patent-Laws were intended to apply to different manufacturing circumstances from those which now exist, and were based upon different notions about invention; the objection to them is that they either are, or are becoming, out of date. A little consideration will show how true this is.
Let us look first at the notions still customary about inventors and inventions which are derived from past circumstances. The popular idea of an inventor is of a man who makes an immense addition to the real wealth of the world—who invents the steam engine, or the spinning jenny, or the Jacquard loom, or the hot blast—almost revolutionising the material powers of mankind. The idea associated with his work is in any case that of great novelty in means coupled with great accomplished results. Now there are various reasons why these should not be the characteristics of modern inventors and inventions, as we see they are not. It might be true that there are still as many inventions of real novelty and magnitude as ever, though we doubt if there is; and yet there would be circumstances which prevented a legislator regarding them as most important. One of these circumstances is certainly the exaggerated importance of minor improvements, in consequence of the great development of machinery and manufacturing. A single improvement to save 10 per cent, in fuel for the steam engine would probably add more absolutely to the real wealth of this generation than the invention of the steam-engine itself added to the real wealth of the generation in which it was invented. A recent invention just spoken of—the feathering of the blades of screws, increasing the facilities of using auxiliary steam-power in ships—might compare on the same footing with the most substantial invention of a poorer age. Just as the refinement of the machinery of credit, and the extent of its development, cause the least disturbance to be widely felt, so the least improvement in mechanical or chemical knowledge, applied to manufactures, may have great results. A revolutionary invention—owing to the difficulty of introduction—might not tell so quickly even as a minor improvement in an existing groove; but, in any case its effects will now be matched at the first start by these minor improvements.
These improvements again, as well as the great inventions themselves, are usually come at in recent times in a different way from that of the old inventor. Formerly the inventor had almost nothing, before him—every department of industry had to be built up from the foundation. Now a man must build upon extensive knowledge of what has been accomplished, and must have great means at his command. What Mr. Mill has just been explaining in his new book in regard to original authorship in the present day is equally true of invention: “Nearly all the thoughts which can be reached by mere strength of original faculties have long since been arrived at; and originality, in any high sense of the word, is now scarcely ever attained but by minds which have undergone elaborate discipline, and are deeply versed in the results of previous thinking. It is Mr. Maurice, I think, who has remarked, on the present age, that its most original thinkers are those who have known most thoroughly what had been thought by their predecessors; and this will henceforth be the case. Every fresh stone in the edifice has now to be placed on the top of so many others, that a long process of climbing, and of carrying up materials, has to be gone through by whoever aspires to take a share in the present stage of the work.” That is—when we speak of invention—the inventor must be a man who is closely associated with capitalists, or be a capitalist himself. In no other way can he have the means of knowing the thousand improvements of machinery and processes which have culminated in the present factories and machines; and in no other way can he find means for experiments on the necessary scale. “Poor men,” says Sir William Armstrong, “very often come to me imagining that they have made some great discovery. It is generally all moonshine, or if it looks feasible, it is impossible to pronounce upon its value until it has passed through that stage of preliminary investigation which involves all the labour, and all the difficulty, and all the trouble.” How is a poor man to get this preliminary investigation undertaken, when the subject is an amendment of a complicated manufacturing process? The complaint, in fact, was made before the Select Committee on Technical Instruction, that English manufacturing was suffering from foreign competition, because there is less room now than formerly for the play of “untaught invention.” The machine is too perfect for the workman to meddle with; and thus the foreigner, supposed to be more technically instructed, has room to excel us—our peculiar power having been “untaught invention.”
Such having been the change in the character of invention, it is easy to see why the Patent-Laws are not only not needed, but are obstructive. The inventor, in the first place, is not in the position of an old inventor. To give him scope he must be employed by a manufacturer or capitalist—that is, his skill must be already highly valued, the manufacturer naturally employing those who can introduce amendments and improvements, and keep him abreast or ahead of competitors. “I believe,” says Sir William Armstrong, again, “that if you let the whole thing alone, the position which a man attains, the introduction and the prestige, and the natural advantages which result from a successful invention and from the reputation which he gains as a clever and able man, will almost always bring with them a sufficient reward.” And again: “I think that absolute discoveries are very rare things; nearly all inventions are the result of an improvement built up upon a preceding one. A poor man who has the ability to make really practical improvements is almost sure to rise in the world without the aid of Patents.” And if the inventor may be thus indifferent to a Patent-Law, the question as to the inducement to capitalists to take up inventions may be settled by their general objection to Patents. Though there are one or two manufacturers who have monopolised a number of Patents in their trade, and so turned the law to account, it is from them that the greatest complaints come—men like Mr. Platt, or Mr. Scott Russell, or Mr. Macfie, who has just moved the abolition of the laws. The truth is, capitalists are now in a position to obtain a profit without a Patent—just as they can sometimes disregard a Patent for a long time till competition forces it upon them. Patents, then, are not required as an inducement either to inventors or capitalists, and the reason of the law fails.
But this is not all. The complaint of manufacturers at the obstruction of the present law would not be enough by itself, but it is a very serious matter when invention is part of the business of manufacturing. The law of Patents, in short, interferes with what has become the normal process of invention. Mr. Platt states: “I think that there is scarcely a week, certainly not a month, that passes but what we have a notice of some kind or other of things that we have never heard of in any way, and do not know of in the least that we are infringing upon them.” Sir William Armstrong complains of a personal grievance: “The necessity which I am under of taking out Patents, not for the purpose of obtaining for myself a monopoly, but simply for the purpose of preventing other persons from excluding me from my own inventions.” And much similar evidence was given before the Royal Commission, of which Lord Stanley was chairman. Thus the present law is not wanted to promote invention, and it is injurious to a kind of invention which would go on luxuriantly without it. The gradual nature of most inventions is a sufficient security that it will proceed under the law of competition. Perhaps the practice of Government is the best indication of the necessity for the abolition of Patents. A few years ago the manufacturing departments of Government found themselves so hampered by Patents that they resolved to try whether they were bound or not, the result being a legal opinion that they were not bound. But Government is only a great manufacturer, its work in some departments being less than in many private businesses. Is there any reason why Government should be released, and individuals bound to patentees? As to the supposition that invention will cease, the mere interest of the Government in paying for anything worth having is found a sufficient stimulus to invention in the things which it requires; and so it is assumed will be the interest of competing manufacturers.
There is a universal agreement, moreover, that no Patent-Law should cover all the inventions which are now covered. It happens that the strongest condemnation of things as they are before the Royal Commission came from witnesses who wished a change, though none suggested anything which commended itself to the Commission. The idea seemed to be that a separation could be made between substantial inventions and the improvements or amendments which are now so important, but are admitted to be unsuitable for Patents. It was thought that Patents, instead of being granted indiscriminately, should only be granted in cases of proved novelty and utility. But no working plan of a court to do this could be devised, or one which would not probably discourage inventors as much as the abolition of Patents altogether.
We come, then, to the conclusion that it is for the general interest that Patent-Laws should be abolished, and that their abolition will do no great harm to any one—least of all, to the great mass of inventors or improvers. Perhaps we may point out that, if the circumstances are as described, this country has a special interest in abolishing such laws. As the leading manufacturing country in the world, a Patent here is likely to be worth more to its holder than anywhere else; consequently our manufacturers are more exposed than any others to the interruption and worry of Patents. It may well be that other countries which are less tempting to patentees will find the balance of competition weighted in their favour in consequence. Looked at another way, the more that invention falls into the hands of great capitalists, the more likely is it to strengthen the manufacturing of a country which is already most powerful. The normal condition of things is all in our favour, and we should do nothing to thwart it.
Leading Article from the “Spectator,” June 5, 1869.
Those who doubt whether there are subjects upon which no conclusion is possible, which baffle the ablest and most judicial minds possessing the best attainable information, should read the debate which has just taken place on the proposed abolition of the Patent Laws. The most remarkable fact of the debate was the uncompromising attack upon these laws by Sir Roundell Palmer, his eager advocacy of the opinion that they should be at once abolished; but the most significant speech was made by Lord Stanley, who exhibited perfectly the incapacity of reasonable men to come to a wholly satisfactory judgment upon them. In fact, there is a real balance of considerations which were almost exhaustively stated by Lord Stanley. If you look at one set of facts, you see good reason for conceding Patent rights; if you look at another set, you find innumerable mischiefs arising from the concession; and there is hardly any means of measuring which set of arguments preponderates. The motive of granting Patents is primâ facie very simple and unobjectionable. You wish to encourage inventions, by which the wealth of the world is so much increased, and you therefore promise inventors a temporary monopoly of their use, on the single condition that the inventions shall be made public. But for some such guarantee, it is said, many inventors would have no temptation to rack their brains, and capitalists would be afraid to help them in putting their ideas into a complete shape. That invention, as a matter of fact, is to some extent encouraged, is certain, though Lord Stanley hardly touched upon the point. On the other hand, hardly any Patent-Law can do what it professes, while it is certain to do much harm; and this is, at least, the character of our own law. The rewards with which it tempts inventors are too often delusive, and they at least would have small real cause to complain of its abolition. No Patent brings its holder any immediate pecuniary right. He can only sue people who infringe his Patent, and the costliness of Patent suits is such that he is seldom able to protect himself. To make the property worth anything, a capitalist must take it up; but the capitalist, in doing so, stipulates for the lion’s share of the profit. Probably in ninety-nine cases out of a hundred the reward was obtained by such speculators, and not by inventors. This, of itself, we believe, would not be a sufficient argument against conceding Patent-rights; but it would certainly be sufficient, if inventors could be induced in some less costly way to surrender their ideas to the public. Another reason against Patents, stated by Lord Stanley—that the reward is usually but of all proportion to the service rendered—is also a strong one, if a better plan can be thought of; but the main reason, the injury to third parties, is most serious. There is a great mass of well-founded complaints as to Patents being traps for manufacturers. Improvements and amendments in the details of machinery and manufacturing processes, which would inevitably be come at by the manufacturers themselves, are appropriated beforehand by inventors who do not possess in reality any particular merit. Manufacturers, are afraid to make slight alterations, for fear an inventor comes down upon them; but they never know but what they may have to encounter an action for “something they have always done.” Even inventors themselves suffer in this way. It commonly happened that half-a-dozen men competing in the same line of business would come almost simultaneously upon the same discovery; but if A was a week or a fortnight before B, the latter was excluded from his own discovery. The Patent-Law, then, not only does little real good to patentees themselves, but a great deal of mischief to other people. Who is to decide whether the balance of advantage to the public, through encouraging invention by offering a rather delusive reward, exceeds the disadvantage of impeding manufacture and preventing people from using what they themselves discover?
Lord Stanley, though only recommending the matter for the “particular handling” of the Government, inclines, on the whole, to the view that the Patent-Laws do more harm than good; and we are quite disposed to agree with him. The decisive consideration appears to be the unavoidable abuse of Patents for inconsiderable inventions, or inventions of simultaneous discovery. The hardship of excluding B from a discovery of his own because A had patented it a week before, is such as to demand the clearest proof of the expediency of the general law which deprives him of the fruit of his labours. Where B is a manufacturer, led up to the discovery by the necessities of competition and suddenly laid under contribution by a stranger or a rival, the hardship is especially severe. We are not sure but that to make any Patent-Law tolerably just, special provision should be made for proof of simultaneous discovery, and either compensation to all the discoverers by the patentees, or full liberty to them to make use of their discovery. It is of equal importance, however, that the amendment of manufacturing processes in detail should not be checked; and perhaps the fact that the great majority of Patents now only apply to what may be termed details is a main reason for abolishing them. It is a simple monstrosity, to quote the case given by Mr. Scott Russell, that every conceivable shape of a boiler should be patented, so that the most obvious change of form, which some particular exigency obviously suggests when it arises, should not be permissible to a manufacturer unless he pays black mail to somebody else. If it is said that details are often important, the answer is that manufacturers and inventors have a sufficient stimulus with regard to them without a Patent-Law. The pressure of competition and the large scale of manufacturing, which make details important, are sufficient inducements to those interested to find out something new, or encourage others to find out something for them. Just because invention must usually come in the way of great manufacturers, who can recoup themselves without Patents, Patents are no longer necessary. Men like Sir William Armstrong and Mr. Scott Russell, who are themselves considerable inventors, do not care for Patents, except to guard themselves against the interference of others who might take advantage of the present law to reap where they have not sowed. They are quite content to let others alone, if they are let alone themselves, deriving their profit from general excellence of manufacture, of which any single process which might be the subject of a Patent is only one out of many details, and perhaps not the most important. Nor do such inventors conceal their detailed improvements, so that they are in no way tempted to do anything for the advantage of the public by the present law. It was observable in the debate that the defence of the present law rested exclusively with representatives of probably the least important inventors. Mr. Mundella’s assurance that working men are attached to the present law, and that inventors of the working class would either not be tempted to invent, or would be deprived of the reward of their industry, was, in truth, the only argument in its favour. But it was plainly insufficient. It would be necessary also to show that such inventions are overwhelmingly valuable, so as to compensate for all the injury a Patent-Law must do; but this was not, and we believe could not be, attempted. The special case of poor inventors might be met by an organised system of voting rewards to those whose inventions had been largely adopted and used; but we should not frame an entire law, which the public do not require, and which would work a deal of harm, in order to suit their peculiar circumstances.