The following observations, abridged from a review, by M. Aug. Boudron, of M. le Hardy de Beaulieu’s La Propriété et sa Rente, are from the Journal des Economistes for May:—
The author assimilates the inventor’s privileges to proprietorship of a field. Nevertheless there is a fundamental difference between the two kinds of property. Independently of State privileges, the originator of a discovery may use it as his own, and even to the exclusion of all others, provided he keep it secret, so that he shall have no competitor to encounter; whereas the owner of a field, if he is deprived of his right, loses all. The advantages of an invention may be enjoyed simultaneously by many persons; the produce of a field by one only. Now for a difference of importance affecting the interests of the public. Give the possessor of a field his right in perpetuity, and you have circumstances the most favourable for its yielding all the produce which it can. Not so with the privilege of an inventor, for it essentially consists in hindering others from bringing the methods or materials that are patented into use. From the time of invention and first exploitation the privilege is an obstacle; it limits the amount of good that society would in its absence enjoy. What, then, is the motive of certain States in conceding this exclusive privilege?... The legislators who have created the right thought that there would in consequence be a larger number of useful inventions and improvements, and that, on the whole, society would be a greater gainer than if there were no Patents.... As there are innumerable instruments and processes for which Patents have been and might still be taken, there must, if perpetuity of privilege be granted, be a prodigious number of monopolies, and almost no operation could be performed, nothing done, without people being obliged to pay tribute to some privileged person. There would be a countless host of administrators like receivers of tolls and pontages, diminishing wealth in place of creating it; the world would soon produce too little to sustain the monopolists and their employés. We thus arrive at an impossibility. But conceive all this possible, and the world must yet miss a great number of inventions and improvements, that would under the system of perpetuity be prevented. This is seen by the obstacles which even privileges of limited duration throw in the way of new inventions. In actual practice progress is often attained only by the use of previous inventions. But what if these are the subject of Patents the holder of which will not come to terms or cannot be treated with? Retardation, if the privilege is temporary; a full stop, if perpetual.
NOTES ILLUSTRATIVE OF MR. MACFIE’S SPEECH.
The views taken in the text as to the meaning of the word “manufacture” receive confirmation from the following extract from the Engineer of June 4, 1869:—
THE AMERICAN PATENT-LAW.
... Accordingly, in the first general Patent-Law passed by Congress, the subject for which Patents were to be granted were described as the invention or discovery of “any useful art, manufacture, engine, machine, or device, or any improvement therein not before known or used.” In the next statute—that of 21st February, 1793—the phraseology was first introduced which has been ever since employed—namely, “any new and useful art, machine, manufacture, or composition of matter, or any new and useful improvement in any art, machine, manufacture, or composition of matter, not known or used before the application for a Patent.”... We have, then, the following four heads of subjects suitable for Patents—viz., an art, a machine, a manufacture, and a composition of matter.... In England, to make a new process the subject of a Patent, the word “manufacture” would be used, and would have to be interpreted somewhat liberally. Thus, in some cases, there might not be a perfect distinction between the thing itself and the art or process of making the thing.... With regard to the head “manufacture,” we cannot do better than give the definition which Mr. Curtis has added as a note to his work. He says a manufacture “would be any new combination of old materials, constituting a new result or production in the form of a vendible article, not being machinery.”...
As well as from the following extract from—
HINDMARCH ON “VENDING OR SELLING.”
“The sole privilege of making the invention as expressed ... is in truth the same in substance as the sole privilege of using and exercising it.... By the first section of the Statute of Monopolies, patents granting ‘the sole buying, selling, making, working, or using of anything’ are declared to be void, and the proviso in favour of inventions contained in the sixth section only extends to ‘grants of privilege of the sole working or making of any manner of new manufactures,’ leaving the sole buying or selling of anything within the prohibition.... The sole privilege granted by a Patent for an invention authorises the inventor ‘to make, use, exercise, and vend’ the invention.... And as no one can use the invention except the patentee, no one besides him can lawfully have such articles for sale.... Every part of the privilege granted by a Patent for an invention, when thus explained (!) is therefore clearly within the meaning of the exception contained in the Statute....”