Such being the nature of the discussion, it is, of course, not worth while saying much on the particular defects of the present law. But there is hardly a single point where some alteration is not called for. In particular, the Courts for trying Patent cases could be very much improved; and additional obstacles might be interposed to frivolous or entrapping Patents. One of the main reasons for total abolition, nevertheless, must always be the impossibility of suggesting an amendment for some defect which is not itself open to equivalent objections. Nothing, for instance, seems so obvious at first sight than that the present law might be amended by compelling patentees to grant licences. Yet the Royal Commission which reported in 1865 was decidedly opposed to this suggestion, after hearing all that could be said for it. There is no means of saying beforehand what should be the maximum charge for licences, while the moment this principle is introduced the special use of a Patent as a stimulus to inventors is tampered with—the prospect of a complete monopoly of which they are to make as much as they can. Similar objections apply to any suggestion for cancelling Patents which are not used in a year or two to some material extent. The best inventions, requiring the greatest changes in manufacturing machinery, are often the slowest to come into operation. For the same reason, it would also be impracticable to compel patentees to grant licences at fixed maximum rates after their Patent had been two or three years old. It might be just as impossible then, as at first, to say what the licence fee should be. If we are to have a Patent-Law, then we can have no substantial improvement upon the present one; and it is so bad that it can hardly last. Perhaps there is at present a deficiency of evidence on the subject—the workmen not having been heard before the last Commission, and the information presented as to the Patent-Laws of other countries and their working being very deficient; but though this may be a good reason for having another inquiry, we anticipate that it will only confirm the verdict of impartial judges against the present system.
Extract from the “Saturday Review,” June 5, 1869.
If the interesting debate on Mr. Macfie’s motion proved, what scarcely needed proving, that our existing Patent-Law is extremely unsatisfactory in its working, it equally proved that the arguments against having any Patent-Law at all are not less unsatisfactory. If it were practicable to discriminate between true and sham discoverers, and to ascertain with accuracy to whom the merit of every new invention really belonged, and if it were at the same time easy to secure to the man who increased the common stock of useful knowledge the fruit of his own brain, no one would dream of questioning the moral claim of an inventor to this peculiar kind of property, any more than we now question the justice of giving to an author a copyright in his own work. But when it is found, or supposed, to be extremely difficult to do justice to one man without causing much inconvenience and some occasional injustice to a thousand others, there is a strong temptation to sacrifice individual rights to public expediency. The advocates of a total repeal of the Patent-Laws generally insist (as Sir Roundell Palmer did in his ingenious speech), not only that they do a great deal of indirect mischief, but that the discoverer of the most invaluable invention has no claim to any reward except the consciousness of having enabled a number of other men to make colossal fortunes. That such arguments should be used at all proves little more than an uneasy consciousness that the proposed repeal would work a certain amount of real injustice. Men who are strongly impressed with the expediency of ignoring the claims of inventors struggle to escape the reproach of injustice by stoutly denying the rights which they desire to disregard. We would rather see the subject discussed with more courage and frankness. There are undoubtedly instances in which private claims must yield to public expediency, and any persons who think the case of inventors to be one to which this rule is applicable would do better to say so openly than to try to persuade themselves and others that those who have created the means of making wealth have no claim to share in the fruits of their discovery. Sir Roundell Palmer affected to dispose of the whole difficulty by saying that there were essential differences between Copyright and invention; but a principle is not the less sound because you may illustrate it by a case which is not on all-fours with that to which you apply it. And the distinctions between Copyright and invention are by no means so radical as is sometimes assumed. The Copyright-Laws give an author a special monopoly because it is conceived that the production of a new work entitles him to a return proportioned to its merit, as tested by the demand for it in the market. The Patent-Laws give an analogous monopoly to an inventor on precisely the same moral grounds. To say, as Sir Roundell did, that a book was a new creation, whereas an invention was merely the application of the facts and the laws of nature, which are common property, was to speak like a lawyer rather than like a philosopher or a man of science. Whatever other distinctions may be insisted on between Copyright and invention, this, at any rate, will not bear a moment’s examination. It may have a colour of plausibility in the case of a poem, a play, or a novel, though even there it is not altogether sound. But literature includes history, science, philosophy, mathematics, and the like; and every book on these and most other subjects, so far as it has any value, is based entirely upon facts and laws which are no more the creation of the author than are the facts and laws on which an invention may be founded. In each case there is creation in the same qualified sense. Say that a man creates what he reveals, or what he proves, and the author and the inventor are equally entitled to be called creators. Say, on the other hand, with perhaps more accuracy, that to proclaim a previously unnoticed truth is only to announce what has all along existed in nature and nature’s laws, and some more modest title than creator must be assumed by author and inventor alike. The difference between the two cases is not a difference of principle, but of convenience. The thing created, either in the book or the machine, is the thought or the method; but property in a thought or a method is not what the law allows in either case, simply because it would be impossible to give an effect to such an enactment. What the law does is to lay hold of the most profitable mode of using the idea, and say that for a limited time no one but the originator shall be at liberty, in the one case, to print the book or a colourable imitation of it; or, in the other, to manufacture or use the machine or any colourable imitation of that. It is impossible, we think, to deny the abstract right of a real author or inventor, and more palpably impossible to deny it in the one case while you admit it in the other.
Apart from his abstract reasoning, there is much in Sir Roundell Palmer’s argument to show wide differences in practice between the cases of authors and inventors. It is undoubtedly true that in a vast majority of instances the patentee of an invention is not the person to whom the largest share of the merit belongs. The rule, equally in scientific discovery and in practical invention, has almost always been found to be that, when a great step in advance is completed, no one man can claim the entire merit. If one wins the race, there are mostly several competitors who get a place. Even Newton had rivals treading on his heels, and his great discoveries would not have been lost, though they would certainly have been delayed, if his marvellous intellect had never been directed to science. The thought of the world, as represented by a little cluster of inquiring minds, was fast ripening for the harvest which Newton was the first to reap. But no one on this account seeks to deprive Newton of his glory. And we do not see why the pioneers of practical invention should be deprived of the reward for which they work merely because what they have done is but to forestall what would have been accomplished, sooner or later, without them. The real vice of the Patent-Laws is that they give a full fourteen years’ monopoly to the first inventor who proclaims himself, even though it may be clear that he has not a week’s start of a host of competitors. In order to make sure of adequately rewarding a very few real benefactors of mankind, you give an inordinate privilege to a great many who have done nothing at all in proportion to what they receive; and not only do you prohibit every one from borrowing the patentee’s ideas, but you actually forbid a second inventor, who has arrived at the same result without ever having heard of the first, to make any use for fourteen years of the conclusions which he has worked out by his own unassisted thought and labour. This, of course, is a gross injustice, and the opponents of the Patent-Laws say that no machinery can be devised by which it can be escaped. Another serious objection to the system, as worked in this country, is the indiscriminate grant of a Patent to any one who claims it, leaving it to future litigation to determine whether the Patent is good or bad. The Law Officers of the Crown receive an enormous amount of fees for Patent business, and it is their function to determine in the first instance whether a primâ facie title to the privilege is made out. It might be supposed that, if the identical invention has been patented or publicly used before, or if, on the face of it, it is no invention at all, the application would be refused. Nothing of the sort happens. No examination of the records at the Patent-office takes place to ascertain the existence or non-existence of earlier Patents for the alleged discovery; and even when there is an opposition, and it is clearly proved (as in the case of the bullet which Mr. Metford devised and Mr. Whitworth afterwards patented) that there is nothing new in the invention, the Patent is allowed to go, in order that the claimant may have the privilege of a jury to try an imaginary right. This is the way in which the crop of litigation is raised which is so often pointed to as a reproach to the law. The present Attorney-General, it seems, has introduced the innovation of rejecting the claims of patentees where the alleged inventions are palpably frivolous, but something much more decided than this is needed to make the preliminary investigation of any real value. The vast number of worthless and catching Patents taken out merely as traps for manufacturers is perhaps the greatest nuisance incidental to the system, but it is by no means the most difficult to suppress.
All these evils must be cured, or sensibly abated, if the Patent-Laws are to survive; and if this is to be done at all, it can only be by an effective preliminary inquiry. That there are difficulties to be encountered in such a scheme cannot be denied, but it is not yet shown to be so complete an impossibility as Sir Roundell Palmer assumed it to be. With the best machinery a few Patents would slip through which, on closer investigation, would be held to be bad; but even the clumsiest methods of bonâ fide inquiry would have sufficed to weed out some ninety per cent. at least of the existing Patents. A mere search by proper officials at the Patent-office, with the aid of the excellent indexes which they possess, would settle the fate of the great majority of applications, and the opposition of rival inventors or manufacturers would expose a great many more if it were not understood, as it is now, that any opposition before the Law Officers is a mere waste of time. Under the existing system we have a tribunal which is not, as a rule, competent for the work, and which makes no real effort to do it. The Law Officers give up the investigation in despair; but it by no means follows that a scientific tribunal, with all the aids which the Patent-office could supply, might not be found extremely useful. The experiment, at any rate, has not been tried; and it is scarcely fair to inventors to deprive them of all protection merely because a perfunctory inquiry by an unscientific and busy lawyer may have failed to exclude from the list of patentees a formidable body of mere impostors.
We take it to be quite clear that the attempt to do justice ought not to be given up until the impossibility of putting the law on a satisfactory footing is clearly made out. Mr. Mundella is probably as ingenious as most manufacturers, but he says that all the inventions in which he is interested came out of the brains of his workmen, and that they are sharing with him and the public the benefit of their discoveries. Apart from the serious inconveniences caused by the law as it is now administered, no one could desire to confiscate the ingenuity of artisans for the benefit of master manufacturers. As matters stand now, a poor patentee is generally helpless to turn his invention into money without the assistance of a capitalist; but to allow a master, because he is rich enough to use an invention, to pick the brains of a clever artisan without making him any acknowledgment, would be to aggravate the plutocratic tendencies of the age, which most serious thinkers would gladly mitigate as far as possible. The product of invention and thought is a very difficult kind of property to protect, but it is not on that account the less deserving of protection, if any means can be devised for granting it without too grave an interference with the commercial freedom which public expediency demands. The subject requires a more searching investigation than it has yet received. Lord Stanley’s Commission scarcely touched the root of the matter, and no attempt has even been made to test the feasibility of such suggestions as the report contained. It is for those who attack the law to make out a conclusive case, not merely against the particular system in force, but against every possible scheme for securing to inventors the benefit of their own work. And this has certainly not yet been done.
EXTRACTS FROM RECENT CLASS PERIODICALS.
Along with some true light and sound sense, the shifts to which advocates of Patent restrictions are put when they venture upon argument, and the boldness with which advances are being made on the path of monopoly in the face of attack, may be deduced from the following extracts picked up at a glance in current periodical class literature:—