It would be seen, he thought, from what he had stated, that the public were placed at a great disadvantage in the contest. In dealing with Patent cases in a court of law there was generally a vast array of witnesses to be examined, consisting of mechanics, chemists, and scientific men of all sorts on one side and the other. Then there were the jury, who knew nothing of the subject, and the judge, who might be placed in a worse position, because he might imagine he understood all about it when he did not. He did not, of course, mean to say that the judge did not sometimes understand it, but it might very easily happen that an ingenious professional witness might so argue the case under the form of giving evidence as to lead the judge to think that he really knew all about it when such was not in reality the fact. Then the bias being in favour of the patentee, the result of such trials almost invariably was, that if the matter happened to be of any practical importance, the public were defeated, after having endeavoured to protect themselves at an enormous expense. He would not enter into minute details, but probably he had said enough to show that a great practical evil arose out of Patent-Laws, and that for this evil there was little or no corresponding benefit. He did not think that we should lose really valuable discoveries if the Patent-Laws were abolished. There might be some rare instances in which particular circumstances might give to particular inventors motives for suppressing and facilities for suppressing discoveries which were not patented. But, assuming that to be possible in some cases, it operated even now, for it was well known that Patents were bought up for the purpose of being suppressed, and it was understood also that inventors were the persons who derived the least advantage from their inventions. His conclusion, therefore, upon the whole matter was that the time had at last arrived—even if it had not arrived some time ago—at which the public interest would be promoted by the entire abolition of the present system of monopoly.
[This speech and the succeeding one have been obligingly revised for the press by the speakers.]
SPEECH OF THE RIGHT HON. LORD STANLEY, M.P.
Lord Stanley said that, agreeing substantially in the arguments of the honourable and learned gentleman who had just sat down, he should not have troubled the House if it had not been for the circumstance that he was chairman of the Royal Commission which sat upon the question of the administration of the Patent-Law some years ago, and he thought, therefore, that it might be expedient he should state what was the result which that inquiry produced upon his mind. There was no doubt that, quite apart from the principle of the law, the details of the law, as at present administered, were not satisfactory; and, if the law were to continue in any form, he believed that in the report of that Commission various suggestions would be found by which the most prominent objections to its present working might be removed, and fair trial might be given to the principle itself. But it was impossible to carry on an inquiry of that kind, even limited as it was—it was impossible, at least, for him, and he believed he was not the only one in that position—without finding a doubt raised in one’s mind whether any Patent-Law could be framed in such a manner as not, upon the whole, upon the balance of good and evil, to do more harm than good. That conclusion, he was bound to say, was totally opposed to his earliest impressions upon the subject. He resisted it for some time, but the more he had to look into this matter—the more he had to consider how great were the practical abuses and inconveniences of the existing system, and how difficult it would be to remedy them—the more clearly it appeared to him that the evil was really irremediable, being inherent in the principle itself. On this subject of Patents there had been a certain amount of prejudice, particularly in the minds of literary men, who appeared to think that Copyright was only a modification of the same principle, and that if Patents were abolished Copyright would follow. The analogy seemed a plausible one, but he thought that, on being looked into, it would not hold water. The difference was simply this: He did not rest it on any abstract ground as to the distinction between invention and discovery, but on the obvious fact that no two men ever did or ever would write, independently of one another, exactly the same book; each book, be it good or bad, would stand alone; whereas it might happen, and often did happen, that two or three men, quite independently of one another, would hit upon the same invention. That alone established a distinction between the two cases. He was not disposed to place the objection which he entertained to the system of Patents upon the ground of any abstract impropriety in giving a man a property in ideas. To a certain extent you did in the case of Copyright recognise a certain qualified and temporary property in ideas; and if it could be shown that a man’s ideas had been of a nature to add greatly to the wealth of the country, he did not think that any abstract considerations of the kind mentioned by the honourable member (Mr. Macfie) would induce anybody to grudge to such a man any reward to which he might fairly be entitled, provided that that reward could be given in a manner free from objection on other grounds. The objections which he felt to the principle of Patents were threefold. In the first place, you could hardly ever secure the reward going to the right man. In the next place, you could not establish any proportion between the public service rendered and the value of the reward received, nominally, for that service. And, thirdly, you could not by any arrangement that he had been able to discover, prevent very great inconvenience and injury being inflicted upon third parties. With regard to the first point—the difficulty of securing that the reward should go to the right man—it must be remembered that a Patent did not, as some people supposed, bring to the holder of it an immediate pecuniary recompense. All that it did was to give him a right to prevent any one else from using his invention without paying for it, and if that Patent were infringed he was entitled to take legal proceedings. But everybody knew that law was costly, and that Patent suits were the most costly of all. It was notorious that Patents were continually infringed by persons who well knew they were infringing them, but relied upon the inability of the inventor to incur the expense of defending his property. If a poor inventor took out a Patent, and the Patent promised to be productive, in nine cases out of ten he was obliged to sell it to some one who could command capital enough to defend it in a court of law. If the Patent remained in his own hands, it was quite sure to be infringed, and then he would probably be crushed by the law expenses. He did not know whether it would be possible to obtain accurate information upon this point, but he really did not think he should be exaggerating if he said that in nine cases out of ten—probably in 99 out of 100—the reward was obtained, not by inventors or their representatives, but by persons who had bought the Patent on speculation and at a very low rate. He said at a low rate, because there was a great deal of uncertainty about such property, and until a Patent was tested by actual working you could hardly say whether it was valuable or not. What was the practical effect of this? Why, that a few great firms in any branch of business, buying up at a low rate any new Patent applicable to their business, and prepared to fight for it, could so hamper other competitors as to secure a practical monopoly. The reward, therefore, did not, as a rule, go to the men who, on the ground of the public service rendered by them, were intended to receive it. As to the second point—that the reward might be great and the public service very small—that had been dwelt upon by the honourable and learned gentleman opposite, and little need be added to what had been said by him. The merit and novelty of the invention might in many cases be almost nothing, and, yet however obvious it might be, however much it might lie, so to speak, in the high road of discovery, if it applied to any article of general use, the pecuniary reward derived from it might be absolutely out of proportion to the novelty or value of the invention. It would be easy to give instances, but he apprehended that the fact was familiar to every one who had studied this question. Then, with regard to the injury to third parties, it commonly happened that half-a-dozen men who were competing in the same line of business were upon the track of the same discovery. Each of these half-a-dozen men would probably have hit upon the invention which was wanted, independently and without communication with the other. But the first who hit upon it, and who took out a Patent for it, was thereby entitled to exclude the general public and competitors from the use of that which, if he had never existed, they would probably have hit upon within a few weeks. A and B reached the same point, one a week or a fortnight before the other, and A became entitled, by the mere accident of such priority, to exclude B from a process which, a little later on, B would have hit upon for himself. Another case was that where the successful working of a process depended not upon one, but upon several successive inventions. The first two or three, not leading to any immediate practical result, might not have been thought worth patenting. The last link in the chain gave to the whole their commercial value, and it was the person who took out the Patent for the last invention who got the benefit of the whole, yet it might not be the most important invention in the series. He would say nothing of the inconvenience and prejudice to manufacturers in general. That was obvious enough, and the question was whether there was any counterbalancing advantage. These were the considerations which led him to the conclusion that it was impossible to defend our system of Patent-Law as it stood. At the same time, he did not at all disguise from the House that there were certain inconveniences and difficulties in the way of abolishing Patents altogether. You had to guard, in the first place, against the danger of encouraging inventors to keep their discoveries entirely to themselves. In some branches of business, no doubt, that would be possible, and the obvious effect might be to shut out the public, for a much longer period than would be the case if Patents were allowed, from the use of some valuable invention. Then it had been suggested by the honourable member who raised this debate that there might be a system of State rewards for the encouragement of really meritorious inventions. Without putting an absolute negative on that plan, he must observe that it was one which could only be established at great cost, and it would be a very difficult thing to apportion among inventors the rewards to which they might think themselves entitled. The distribution of the rewards would give rise to endless complaints, and would occasion, however unjustly, suspicions of jobbing and partiality. With regard to the suggestion thrown out by the honourable and learned gentleman, of the possibility of granting Patents, not as a right, but as matters of discretion only in certain limited and important cases, the Select Committee considered that point, and he was bound to say that the difficulty of carrying it out appeared to his mind almost insuperable. There would be found great difficulty in drawing the line, and it would not be an easy matter for any one to exercise so large a discretionary power as to decide to what inventions Patents should or not be granted. He did not know what tribunal would be fit to exercise so great an authority, and he was sure that none would be able to exercise it in a manner to give satisfaction to the public. The most fit persons to decide in such a case would be the first to see the difficulty of deciding on any intelligible principle, and would on that ground decline to undertake the duty. Under these circumstances it appeared that they were landed in a position of great embarrassment. He was convinced that the Patent-Laws did more harm than good, and if called on to say aye or no as to their continuance, he should certainly give his vote against them; but, as this was a matter which required particularly careful handling, he should be content to leave the question in the hands of the Government, and he thought it was well worth consideration whether they could not, starting on the ground that the abolition of the Patent-Laws, wholly or partially, was desirable, institute some inquiry with the view of discovering, if possible, the best substitute for them in certain cases.
PATENT RIGHT.
Paper by Mr. J. Stirling, Presented to the Glasgow Chamber of Commerce, and published by permission.
First: Patent-right cannot be defended on the ground of justice.
The object of a Patent-Law is to establish a “property in ideas:” but this involves the double fallacy that thought can and should be appropriated. The end of all law is to ensure the universal freedom of human action. Hence the law of property secures to every man the product of his own labour. It gives to each an exclusive right to the material embodiment of his productive energy, to be possessed or alienated by him at will. But in so doing it leaves unrestricted the productive energy of every other man. The freedom of one (as represented by his property) is thus consistent with the freedom of all.