“The evils of the present system are serious. There is a charm in the name of a Patent which entices large numbers of men to neglect their own affairs in pursuit of some phantom. Where intellectual power exists of an inventive character, it will develop itself without any spur; it is, indeed, irrepressible in its nature. To such minds the stimulus of a Patent is superfluous.
“Besides the progress of the arts, another change has occurred which affects this question. Formerly improvements made slow progress, and unless an inventor were protected for many years he had little chance of recompense. Now the power of advertising is so great and intelligence is so diffused, that any really useful invention can be brought immediately into operation and profit. Were Patents abolished, any one with an invention of value could find a manufacturer to take it up. It is true it would be open to the rest of the world as soon as found out, but the manufacturer would obtain the first start of all others, in itself a profit. Under the present system the legal protection breaks down in practice. The moment a specification is published, competing manufacturers strain their wits to contrive how to reach the same result through other means or modifications; in other words, how to infringe. Against this the patentee has no remedy, except proceedings at law of the most costly nature.
“No change can be proposed in Patent-Law that will not be open to objections based on individual cases of hardship; but, on a comprehensive view of the subject in all its bearings, I hold that it would benefit the country to abolish the system in toto. Manufacturers would be relieved from present perplexity, delusions would no longer be kept up by excitement, an enormous waste of money would be stayed; and whilst the mass of worthless Patents would disappear, any of real value would be taken up on its merits and produce sufficient remuneration to the inventor.”
The Report of the Commission, founded on the evidence of which I have shown the general character, contains the following just observations:—
“The majority of witnesses, however, decidedly affirm the existence of practical inconvenience from the multiplicity of Patents. It is clear that Patents are granted for matters which can hardly be considered as coming within the definition, in the Statute of Monopolies, of ‘a new manufacture.’ It is in evidence that the existence of these monopolies embarrasses the trade of a considerable class of persons, artisans, small tradesmen, and others, who cannot afford to face the expense of litigation, however weak the case against them may seem to be; and a still stronger case is made out as to the existence of what may be called obstructive Patents, and as to the inconvenience caused thereby to manufacturers directly, and through them to the public.
“Other instances will be found in the evidence of particular manufactures and branches of invention which are so blocked up by Patents, that not only are inventors deterred from taking them up with a view to improvement, but the manufacturer, in carrying on his regular course of trade, is hampered by owners of worthless Patents, whom it is generally more convenient to buy off than to resist. The evil also results in another practice, having the same obstructive tendency—namely, that of combination amongst a number of persons of the same trade to buy up all the Patents relating to it, and to pay the expense of attacking subsequent improvers out of a common fund. From a comparison of evidence, it cannot be doubted that this practice prevails to a considerable extent. We must also conclude that when the obstruction is not to be got rid of without the expense and annoyance of litigation, in a large majority of cases the manufacturer submits to an exaction, rather than incur the alternative.
“We desire to call special attention to the evidence given by the First Lord of the Admiralty, and by various witnesses on behalf of the War Department, showing the embarrassment which has been caused to the naval and military services by the multitude of Patents taken out for inventions in use in those departments.
“It has long been the practice, founded on judicial decision, to consider that the use or publication of an invention abroad did not deprive that invention of the character of ‘a new manufacture within this realm.’ It appears to us, and is generally admitted in the evidence, that the present facilities of communication subsisting between all parts of the world have done away with the only valid reason for such a construction of the words of the Statute of Monopolies. The object of allowing such Patents might fairly be, in an age of slow international communication, to encourage enterprising persons to go in search of, and to introduce to this country, useful processes employed abroad, but not otherwise likely to be adopted here, for the want of which we should long have been behind other nations. It does not, however, seem worth while to continue the same facilities now, when foreign inventions are most frequently patented in this country and in their native land simultaneously; especially, as we are well informed, that one result of the practice is to encourage unscrupulous persons to steal the inventions of foreigners and to run a race with the legitimate owner to get them patented here.”
The extracts which I have culled sufficiently prove that, in the opinion of men selected because they were competent to speak with authority on account of their character, ability, and experience, our Patent system is “generally inconvenient” and is “hurtful to trade.” Being so, it is inconsistent with the conditions on faith of which, while other monopolies were prohibited by the Act, it was spared. But I rest my case on absolute evils, without regard to that inconsistency. I am sure nobody can go over the evidence as a whole, or even those scraps of evidence which I have presented—I am well aware in a very promiscuous and ineffective manner—without becoming convinced that the trade and manufactures of this country are seriously obstructed, fettered, retarded, harassed, and burdened, sometimes demoralised, often wronged, or even robbed, by the multitude and vexatious character of Patents, and by the claims and conduct of patentees;—that these Patents, though very numerous, in general possess little merit, yet often produce large revenues, the result of exactions from persons who use them, to the assignees, rather than to the original grantees,—that the uncertainty of receiving a good return (in place of which experience shows there is, in most cases, disappointment or even positive loss), and the utter incongruity existing between the earnings, where there are any, and the merits of inventions, render the system of Patents an exceedingly unsatisfactory way of stimulating invention or rewarding inventors;—and that there is wide-spread dissatisfaction with things as they are, yet despair of amendment, among the most intelligent of those portions of the community for whose benefit the system is plausibly represented to exist.
The evidence goes to show that the poor man and the working man suffer in two ways. Such cannot bring their inventions into play for want of capital, and they could not, even if it were in that respect different, make head against rich infringers who are able by the costliness of law proceedings to set them at defiance. I might allege, also, that while the expenses of patenting are clearly too heavy to suit the circumstances of the poor, there is little or no favour shown by any influential witnesses to propositions for reducing them, because of the tendency that a suitable reduction would have to still further multiply Patents. Surely this indicates sufficiently that there is something radically wrong in the principle on which we proceed.