The House will keep steadily in view the wholly different condition of commerce and the arts at that time. When these monopolies were spared, trade was very far from being developed. The field of commerce was still in a great measure clear and unoccupied. The kingdom was, commercially as well as geographically, detached from the continent. The operations of trade and the arts were slow, were conducted on a small scale and on rude systems, and yielded large profits. Exports to foreign parts were inconsiderable. There were no periodicals to give information as to anything new in the arts and sciences. Under such circumstances, if new kinds of business were to be established, it was not unreasonably thought safe, or even needful, to allure by promise of exclusive privileges. The very reverse are our present circumstances and condition.
May I be allowed now to call particular attention to the Act. Anybody may see that it authorised exclusive privileges as something exceptional, something almost loathed, as “monopolies.” The House may remember how, in conformity with this view, Patents used to be construed by the judicial bench with a leaning against them. It was clearly not contemplated that they were, as they are now, to be had at a comparatively easy price, by a very simple course of procedure organised to hand, at an office established and with machinery ready to be set in motion for the purpose. A rigid testing examination, or severe, perhaps somewhat adverse, scrutiny was implied. They were granted for England only, then containing a small population, and requiring not very much for its supply of any new article. Moreover, the coveted privilege was a concession of no more than leave or right to “work” or “make” (not vend), and that within the kingdom, which, although it is the only thing the Act allows Patents to be granted for, is not required now-a-days. The right was conferrible only on the patentee himself; whereas now-a-days, and perhaps from the first, the usage is altogether different; for the patentee is now allowed to transfer his right, by licence, to others: that is, to vend his “invention,” taking the noun, not in its sense of a thing made, but of a method, or idea, or right to make or do a thing. Without this licensing, it is of consequence to remember, the monopoly would be too grossly and glaringly bad to be defensible or maintainable. There is another contrast: by the words of the statute nobody could be patentee but only the true and first inventor. Besides, the subject of a Patent clearly was to be something palpable and visible—something that admitted not of doubt as to what it was or as to its being novel—something respecting which there could be no fear whatever that it would interfere with any already existing trade. Above all, a process or operation, especially in a trade that already existed, does not appear to be contemplated by the statute. How entirely and sadly different is the present practice in this respect. Let me first quote from Brande’s Dictionary the opening definition that shows how naturally, and as it seems, unconsciously, writers speak of “processes,” as the great or only subject-matter:—
“The word Patent is commonly used to denote a privilege accorded to an inventor for the sole use of some process by which an object in demand may be supplied to the public; or some product already familiar to the public may be made more easily and efficiently.”
So the commencement of a Paper on Patents, in the last volume of the Proceedings of the Association for the Promotion of Social Science—in the following words, “The point asserted in the following paper is, that in a grant of Letters Patent, the subject of the grant is a ‘process,’ and not ‘product’”—shows as decisively the complete change that has taken place, and, let us not forget it, without consent of Parliament, who indeed have never been consulted. The alteration of the practice, which is nothing less than a new law—a law diametrically opposed to the spirit of the statute—is the work of the courts of judicature. Better principles might have been expected to prevail, for how just is the following reflection, taken from the most important “Treatise on the Law of Patents:”—
“Every member of the community receives many benefits from the society in which he lives, and he is therefore bound, by every means in his power, to advance its interests. And it seems to be but reasonable that he should be expected to promote the public weal by putting the community in possession of any discovery he makes which may be for the public good.”
The observations I have been making are founded on the words of the statute. It is possible, and perhaps I may say probable, that outside of the statute there was an influence drawing in an opposite direction, which found expression in the Letters Patent. If these were scrutinised, it is not unlikely even the earliest would be found not to contain the strict conditions and limitations which are laid down in the Act. An incidental proof of this tendency I notice in one Patent which has met my eye, where, though the duration of the Patent in England was confined within the permitted period of fourteen years, the duration in Ireland, which was not subject to the limitation, was in same grant made so long as between thirty and forty years. I do not find, in the excellent Chronological Index issued by Mr. Woodcraft on behalf of the Patent-office, anything at all to indicate that desire to favour trade was the motive for granting Patents even after the statute was passed. On the contrary, a money consideration seems to have been customary. The Crown stipulated for yearly payments of various amount, some of these being fixed sums, others a tenth, or three-tenths, or a quarter, or a half, of the clear benefit. In one case 4d. per bushel of salt was claimed. In another case 6d. per 100lbs. of bones was stipulated for. In another I find 5s. per ton of metal stipulated. All this is suggestive, but not less the condition, introduced occasionally, that the articles manufactured should be sold at moderate rates. The moderate rates appear to have been sometimes defined, e.g., 100 seals of a new kind were to be sold for 1d. Similar and more stringent care was taken when Copyright first became the subject of systematic legislation, to prevent the monopoly from making books dear. All such precautions have, in our modern unwisdom, disappeared. Grotius requires under monopoly a restriction on price.
One thing, I presume, may be regarded as certain, that neither in the Act nor in the Letters is there any vestige of the modern political heresy that an invention may be legislated for as in any sense property. Even the high-sounding phrase, “the rights of inventors,” appears a recent introduction.
It is not forty years since the greatest number of persons allowed to participate in a Patent was five. This limitation was a lingering remain of the traditional character of Patents, as monopolies which ought not to be provided with facilities for extension but rather be confined within the narrowest bounds.
It is proper I should now prove from that and other authorities in law, what is the correct interpretation of the word “manufactures” in the statute, on whose meaning so much depends. My quotations will exhibit progressive development—a thing justly viewed with suspicion, whether its sphere be the ecclesiastical or the legal. What I now bring under notice, taken in connexion with the startling perversion of the words “first and true inventor” and the setting at nought the letter and spirit of the words “to make within this realm,” matches the whimsical and ruinous sophistications we smile at in the “Tale of a Tub.”