(From the June Number of the Journal des Economistes.)
M. Michel Chevalier, Senator, proposed to consider Patents in their relation to freedom of labour [la liberté du travail], a corner-stone of modern political economy, and to the principle of the law of property, which is greatly respected by economists and which serves them as guide.
Does the principle of freedom of labour accommodate itself to that of Patents? It may be doubted. All Patents constitute a monopoly; now, it is indisputable that monopoly is the very negation of freedom of labour.
In the case of Patents, it is true, monopoly has a limited duration; but in France this duration generally extends, if the Patent is worth it, to fifteen years; which makes a long time in our day when the advances of manufacturers are so rapid and so quickly succeed one another. A hindrance or an obstacle which lasts fifteen years may greatly damage and seriously compromise important interests.
It would be easy to exhibit by examples the extent and the importance of these disadvantages.
In France the manufacturer to whom a new apparatus or a new machine is offered is always in uncertainty whether the invention proposed is not already the subject of some Patent, the property of a third party, in which case he would be exposed to the annoyance of a law-suit at the instance of this third party. It follows that he frequently hesitates about adopting a machine, apparatus, or method of work, which would be an advantage not only to the manufacturer, but to the community at large, whom he might supply better and cheaper. Another case which occurs to us is that of a manufacturer in whose factory an improvement has suggested itself. He is forced to take out a Patent, and consequently to observe formalities and undertake expenses with which he would rather dispense; he is obliged, and becomes a patentee, whether he will or no; because, if he did not, it might happen that the improvement might come under the observation of one of the numerous class of Patent-hunters. This man might take out a Patent, which is never refused to the first comer; and once patented, he might annoy and exact damages from the manufacturer with whom the invention, real or pretended, actually had its birth.
In France the annoyances which Patents may occasion are very serious. It is well known that, by the French law, the patentee may seize not only the factory of the maker, but also, wherever he may find it, the machine or apparatus which he asserts to be a piracy of that for which he has taken a Patent. He may take it away or put it under seal, which is equivalent to forbidding the use of it. M. Michel Chevalier thinks that this is a flagrant attack on the principle of the freedom of labour.
It can also be shown how, in another way, labour may be deprived of its natural exercise by the monopoly with which patentees are invested. When an individual has taken out a Patent for an invention, or what he represents to be such, no one is allowed to produce the object patented, or use it in his manufacture, without paying to the patentee a royalty, of which he is allowed to be the assessor, and which sometimes assumes large proportions. The result is, that the produce manufactured can only be offered in foreign markets at a price so augmented that the foreigner refuses it if some other producer, residing in a country where the Patent is not acknowledged, establishes competition. Thus, for instance, France, which worships Patent-right, cannot export the “Bessemer” steel to Prussia, because there this product is not patented; whereas in France, on the contrary, it is subject to a heavy royalty, on account of the Patent.
The same thing may be said of velvets, which have been very much in fashion, and for which a French manufacturer took out a Patent. The effect of this Patent was, that French manufacturers of this stuff were shut out from the foreign markets, because outside France they had to encounter the competition of Prussia, whose manufacturers were not subject to any royalty, the Patent not being acknowledged there.