Sir Roundell Palmer, in seconding the motion, said he had long felt convinced that this subject was one of great and growing importance, which it would be necessary at an early period to bring before the attention of the House. He rejoiced that it had been undertaken by a practical man like the honourable member for Leith, who could speak upon it, not under the influence of any of the partial views which possibly those who looked at it from a lawyer’s point of view might be thought by some to entertain, whether they were in favour of or against Patents. He was glad to find that practical men like his honourable friend had arrived at conclusions which, in their broad principles, were substantially the same as those to which many members of the legal profession, who had had a good deal of opportunity of observing that matter, had in common with himself, come. He was bound to state that he thought the time had arrived rather for opening than for concluding the discussion of that subject; and, therefore, he hoped he should not be thought to do anything inconsistent with the duty he had undertaken in seconding his honourable friend’s motion, when he said at once that, for his own part, he was inclined to go to the root of the matter and abolish Patents altogether, and not attempt to substitute even such a system—although it might probably be preferable in many respects to the present system—of rewards, as his honourable friend had mentioned. Of course those who derived benefit—whether they were the public or were private individuals—from the discoveries that might be made if Patents ceased to exist, might always take into consideration the value they received, and pay for that benefit, as he believed the Government now did, although it was not bound by Patents, with respect to improvements which were useful to the public service. But that, he conceived, would be a very different thing from an organised system of rewards at all analogous to the present system of Patents. He might mention, in passing, a third plan, which had found very able and authoritative advocates, and which he should also greatly prefer to the present system, although he thought total abolition would be better than that likewise. He referred to the plan of putting an end to the notion that every person who invented anything had a right to a Patent, and recurring to what, he imagined, was originally the principle intended—namely, the giving of Patents as a matter of grace and favour in well-selected and discriminated cases, in the exercise of a discretion by an authority entrusted with that discretion. But, as he had already said, he confessed that he himself was not for half measures in that matter. He thought they had a right, as the motion proposed, to say that at the period of progress in the history of the arts and of trade in this country at which they had arrived, they could do much better without these props. He called them props because he thought they were meant to be so, but he believed that at present they were nothing but obstructions and hindrances to trade and the arts. Let him, in the first place, notice the principle on which the Patent-Law was generally supported. Some persons imagined that there was a sort of either moral or natural right in inventors to some such protection as was given by Patents, and the principle was sometimes expressed in this way—that a man had a right to the fruit of his brain. Now, he held that invention and discovery were essentially unlike Copyright. Copyright applied to a creation: a man wrote a book; he thus brought into existence something which had no existence in the nature of things before. The rest of the world were not in the race with him to write that particular book. But in the case of inventions and discoveries, the facts with which they were concerned lay in Nature itself, and all mankind who were engaged in pursuits which gave them an interest in the investigation for practical purposes of the laws of Nature, had an equal right of access to the knowledge of those laws and might be equally in the track for obtaining it. All who were engaged in particular arts and manufactures were actually upon the track which led to the discovery of the useful application of those laws; and the knowledge of them was the common stock and property of all mankind who were equally in pursuit of it. He could not allow that the man who was first in the race of discovery could claim for fourteen years, or any other term, an exclusive property in a portion of the common stock of knowledge which was accessible to all who used the proper means of discovering it. It could not be said that on any considerations except those of public advantage and expediency the man who made the first discovery of a law of nature, or the right mode of applying it had an exclusive right to apply that discovery for a certain period. It was said, however, that Patents were useful to the public, either as stimulating invention, or as insuring the publication of useful discoveries; and he did not venture to say that the time might not have been when they answered both of those purposes. Bounties and premiums might be adapted to a rude state of the arts, and an early stage in the progress of commerce, but when a nation had reached so high a degree of progress in all ingenious arts and discoveries and in trade and commerce as we had, he thought that in this department, as well as in others, the system of bounties and premiums was much more likely to be mischievous than useful. But of course one could not demonstrate that point by resting merely on an abstract proposition, and therefore he would ask the House to look at two or three things which it seemed to him would put the matter in a strong practical light. Patents might be divided into those which might be popularly called meritorious, and those which were not meritorious. The former class were certainly not one in a hundred of the total number of Patents, and the latter class were very numerous in every year. How, then, did the system work as regarded meritorious Patents? He supposed it would be admitted that among the most meritorious discoveries of recent times were the steam engine, the electric telegraph, and the screw propeller for ships. These cases furnished excellent illustrations of the way in which the Patent system worked. Take the electric telegraph. According to the evidence on the subject it was not possible, even for those who best understood the matter, to say who was entitled to the merit of that invention, so gradual and imperceptible was the natural growth and progress of knowledge and discovery in reference to it. But about 400 or 500 Patents had been taken out as marking different steps in the investigation of that subject. As to the screw propeller, he had seen a book which represented the collected Patents of one company as being 90 or 100; and he understood that the case was very much the same in regard to the steam engine. They were not dealing, in the case of the most meritorious inventions, with a true discovery by a single inventor, but with an important branch of practical knowledge at which many men were working at the same time, and in regard to which each step attained indicated the next step that was to follow, and many persons together were on the road. Well, but if they were on the road, the public would get the benefit of the discovery, and the question was whether, by enabling each person on the road to stop up the road at his particular point, they were not really retarding the progress of discovery, and throwing difficulties in the way of even the most valuable inventions. There was no one better acquainted with that subject than a friend of his—a gentleman very eminent both in science and in law. He meant Mr. Grove; and those members of the legal profession who had to encounter Mr. Grove in a Patent case knew they had a very difficult task indeed before them. Now, here were the words of Mr. Grove in reference to that subject:—
“Always when a discovery has been made when the public has reaped the fruits of it, there is no case, and never was a case, either in the history of pure science or in the history of practical discovery, where it is not alleged, ‘If you look at such a book and such another book, you will find that so and so has been done, and you will find that it has been anticipated.’ That is partly true and partly false. There are in all such cases approximate anticipations. The difference is, that one man gets at the points, hits the real thing which will do it, and the reason why it will; whereas other people, although they may have got the thing, have not acquired an accurate knowledge which will enable them with certainty to produce it.”
That showed the House that the race was often so close that even the man who had hit the thing might be shut out by somebody else who did it a trifle better. Nothing could be more true than that. Would the House allow him to quote the example of a very important Patent, which he thought would make the matter clear, and indicate how much they might lose by a system of that description. For a very long time the distillation of oils from shale and coal had been a matter of the common knowledge—aye, and of the common practice, of mankind. Early in the present, or towards the end of the last century, it was practised by means precisely similar in all points to those which the present patentees used in this country. But it was not known commercially that there was such a thing as paraffin, nor was it known commercially how to distil it. The oil was, indeed, obtained in a rough way, and without that nicety of discrimination which afterwards resulted from scientific knowledge of the article itself. All chemists knew that in order to distil these oils it was necessary to keep the temperature as low as possible. This was the state of knowledge when a great German chemist discovered that by operating on wood, tar, and other substances, he could produce paraffin in small quantities. He also said it could be got from coals in precisely the same way as was subsequently done by patentees in this country. But still the German chemist’s experiments were of a scientific and not of a commercial character. He neither produced it commercially nor did he hit upon the material from which it could be commercially produced. The same oil could be produced from shale. Only the other day there was discovered in Scotland a new kind of mineral, as to which the scientific world were at variance whether it was coal or shale. Patents had been already taken out for distilling oil from shale, and, therefore, if the newly-discovered substance were shale, oil could not be obtained from it without an infringement of those Patents. But a Patent was taken out by a gentleman who stated that his object was to use bituminous coals for the purpose of distilling paraffin. In point of fact, he hit upon a mineral which was in ambiguo, whether it was coal or shale, but which the authorities ultimately pronounced to be coal. From this substance the oil could be produced in large quantities. This gentleman took out his Patent, notwithstanding all the previous knowledge on the subject, and notwithstanding the fact to which the learned judge who decided the case in one of its branches referred in the following terms:—
“There is ample evidence that the attention of practical chemists was previously to the date of Young’s Patent laboriously directed to discover the proper material and the proper means of producing these articles in sufficiently large quantities for common purposes.”
The public literally had in their hands all the necessary elements of knowledge belonging to the subject, and yet the first person who found that this particular coal was more bituminous than others excluded the rest of the world from that manufacture for fourteen years, and of course amassed a large fortune. Substantially, the test in the courts of law was whether a man had made money and brought the manufacture into use. If so, the courts assumed that all previous knowledge was inadequate and useless, and the man who was successful in the manufacture was regarded as the discoverer. Was it not quite clear, however, that the public were so far on the road to this discovery that it would have assuredly been found out and enjoyed by the public at large if the path had not been obstructed by the Patent? He would now mention another case. In the days of our youth mills were much infested with flour flying about in them. All the millers, both in this country and abroad, wanted to get rid of this nuisance, and they were possessed of the scientific principle and the mechanical means by which this desirable object would be accomplished. They tried experiments with fans which created a draught to draw the air from the millstones, and everything depended on the adjustment of a plan to draw just sufficient air and no more. People were actually on the road, and were doing the thing in an imperfect way, but in such a way that if they had continued after the granting of the Patent it would have made them infringers of it. But the man who proposed to do just enough, and no more, was held to be entitled to a Patent, whereupon all the millers in England combined to go into litigation in order to defend themselves. Law-suits of the most enormous and oppressive magnitude resulted simply from the circumstance that a man had been allowed to step in and prevent the millers from carrying on their business in the best way. That they would have found it out was certain. That was certainly the impression on his mind. He thought it was almost certain that the discovery being in the direction of their necessity, and depending on the application of a known principle and of known mechanical means, was a discovery which could not in the course of nature have been long delayed. Having said thus much about those Patents which were meritorious, he would make a few remarks on those which were not. A great number of Patents were simply frivolous, and related to practical nothings, but still nothings affecting trades, and standing like lions in the path to frighten tradespeople, and to expose them to risk, litigation, and annoyance, if they manufactured those articles which they ought to be at liberty to manufacture. Then there were other Patents of a less frivolous nature. They related to some little combination of a kind which really was so plainly in the open path, that everybody ought to be at liberty to use it. These, however, furnished the staple of the great majority of Patents, which, though they did no practical good, operated to a great extent in hindering subsequent inventors in effecting further improvements, because these Patents covered almost the whole ground of everything that could be possibly done. An inventor, unless he paid a tax to the owners of prior useless Patents, was exposed to litigation, and even if he were willing to pay the tax, the owners of the prior useless Patent might refuse to grant him a licence. Thus for the space of fourteen years these useless Patents might not only do no good to the public, but might actually stop the road to all further improvement during that long period. On this subject evidence had been given by three persons of eminence—Mr. Scott Russell, Sir William Armstrong, and Mr. Platt. These gentlemen agreed in saying that the useless Patents to which he had just referred were a practical nuisance, and, if so, it was obvious from their number that they must be a very great nuisance. Mr. Scott Russell said:—
“There are a great many Patents of this kind (practically useless, but not appearing so on the face of them) taken out for boilers of steam-engines, and boilers of steam-engines admit of very enormous variety of shape and proportions, without damaging their efficiency. The consequence is, that it is hardly possible at this moment for a man having to scheme a boiler for a new situation or new circumstances to avoid putting his foot in so doing into a trap which somebody has previously set for boilers.... Nearly the whole of the Patents for the boilers of steam-engines at this moment are of no practical value to inventors or to the public; but they are continually getting every man who makes a boiler into a scrape with some patentee, because almost every conceivable form of boiler having been previously patented, and bit of a boiler, one cannot make any sort of boiler without infringing some man’s patent.”
He said precisely the same thing of screws. Then Mr. Platt, a well-known machine-maker, said:—
“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; and the difficulty is to get at any knowledge. We may be now infringing, and may have been infringing for years, and a person may have been watching us all the time, and when he thinks that we have made a sufficient number, he may come down upon us, and there is no record. If a thing is entirely new, there is a record by getting a description; but what I mean by a description is this—A very large number of Patents are now taken out for what is termed a combination of known things for the same purpose, and the descriptions of those Patents are generally so bad that it is impossible to tell the parts that are actually patented. It is only when you come into court, or after making some compromise rather than go to that expense, that you ascertain that fact, and very likely they themselves in many cases do not know the parts that they have actually claimed. It appears to me that, as to that question of combination, the granting of Patents for things to do precisely the same work in the same machine, with the addition, perhaps, of a chain or a couple of bolts, or the form of the lever changed, a straight lever made into a compound one; in matters of that kind it has become a very serious question as to conducting a large business.”
These were examples which it would be very easy indeed to multiply, and if the objections he had urged against the meritorious Patents were well founded, what could be said in favour of the large proportion of Patents which were thus simply obstructing the trade and commerce of the country? Could any one doubt that in this advanced era of knowledge the public would gain, on the whole, by the abolition of the Patent-Laws? Before he left that part of the subject he wished to mention one very pregnant fact. There was in this country a powerful consumer—he meant the Government—which, with respect to fire-arms, cannon, ships, and things of that sort, would be placed in a very singular position indeed if it were subject to the Patent-Laws. During the time he had the honour of being a law officer of the Crown, an extensive war was, as the House was aware, unfortunately raging, and a large number of Patents had come under his consideration in connexion with so-called improvements in ordnance and ships. It would be seen from the evidence to which his honourable friend had referred that the authorities at the War-office and the Admiralty had patentees swarming like hornets about their ears, and that the public service seemed, in consequence, likely to be obstructed to a very inconvenient extent. The question was then tried whether the Crown was bound by Patents at all, and a decision was obtained to the effect that it was not. But while the Crown was free it should be remembered that the people at large were subject to the law as it stood, and if in the case of the Government the claims of patentees were found to be monstrously inconvenient, it might not be difficult to believe that they operated in the same way in the case of the rest of the world also. He should not enter into the minor details of the improvements which had been recommended by the Commission, but there was another point to which he wished briefly to advert before he sat down; he alluded to the question of the protection of the public against invalid and bad Patents. The whole argument in favour of Patents proceeded on the supposition that the public were likely to be really benefited by some discovery which was worth the price of all the inconvenience and obstruction to which they were exposed under the present system. But if they said that they gained nothing by the Patent, and that they only wanted to be set free, what was the position in which they stood in reference to the cardinal point of protection against bad Patents? Was there really any protection in that respect in the duties which were discharged by the law officers of the Crown? It was impossible for the law officers of the Crown, acting on the mere statement of the patentee, to know with certainty whether a so-called discovery was new or not. They could only examine into the question whether an alleged invention, as described on the face of it, was or was not satisfactory, but they could in no way protect the public against having an old thing put forward as a new, or a useless as a useful invention. Indeed, the attempt by means of any sort of preliminary investigation to establish the utility or inutility of a Patent must, in his opinion, necessarily fail so long as the granting of Patents was a matter of right and not of discretion. And what was the result when a Patent came to be disputed in a court of law? Everybody was aware that such litigation had acquired a reputation infamous beyond every other. In the Paraffin Oil Company’s case, which had been referred to, the time occupied before Vice-Chancellor Stuart was not less than thirty whole days. Why was so large an amount of time consumed in those cases? Because it was necessary to enter into the whole history of the discovery in all its numerous stages, and to beat up witnesses all over the country, so that a voluminous mass of scientific evidence had to be produced. That was the reason why the expense in those cases was so enormous, while the public were in every point of view placed at an immense disadvantage, for the presumption was in favour of the patentee, who, if he happened to have succeeded in an action against another person, was entitled to have the fact put in evidence in the case, and might subject his opponent to extra costs. But that was not all. In a case, he believed, of a Patent for the purifying of gas by the use of metallic oxide of iron, it came out that there were two kinds of oxide, the hydrous and the anhydrous, and that the one would effect the object while the other would not; but, because the terms were general, although everybody who tried the experiment might arrive at the result desired, the Patent was held to be bad, and another person who took out a Patent for the hydrate had his Patent made good. Lord Westbury, who was as well acquainted with the subject as anybody who had in recent times occupied the woolsack, said in 1862, in speaking on that point:—
“To vitiate a Patent by prior publication, whether in a prior specification or in a published book, &c., the antecedent statement must be such that a person of ordinary knowledge of the subject would at once perceive, understand, and be able practically to apply the discovery without the necessity of making further experiments. If anything remains to be ascertained which is necessary for the useful application of the discovery, that affords sufficient room for another valid Patent.”