IMPORTANT MESSAGE FROM THE SECRETARY OF THE CONFEDERATION, COUNT VON BISMARCK, TO THE NORTH GERMAN FEDERAL PARLIAMENT.
Berlin, December 10, 1868.
In the presence of the manifold and well-founded complaints concerning the defective state of legislation on Patents in Prussia and Germany, the Royal Prussian Government deems it important to have considered without any further delay what course might best be adopted in the matter.
At the same time, however, and with a view to the position long since taken by Government in regard to the question, it must not be omitted in the first place to decide whether henceforth Patents should be granted at all within the boundaries of the Confederation. The frequent polemics on the principles of Patent-Laws, to which the repeated attempts at reform have given birth during the last ten years, and more particularly the discussions in the late German Federal Assembly, have enhanced the questionability of the usefulness of Patents.
After taking the opinion of the Chambers of Commerce and the mercantile corporations, the Prussian Government, on the occasion of the German Federal Assembly Session of 31st December, 1863, gave utterance to the doubt whether under present circumstances, Patents for inventions may be considered either necessary or useful to industry. Since then the Royal Prussian Government has taken the question once more into serious consideration, and feels bound to answer it in the negative on the strength of the following arguments.
From a theoretical point of view, it may be taken for granted that the conferring of an exclusive right to profits which may be derived from industrial inventions, is neither warranted by a natural claim on the part of the inventor which should be protected by the State, nor is it consequent upon general economical principles.
The right of prohibiting others from using certain industrial inventions, or bringing certain resources and profitable means of production into operation, constitutes an attack upon the inalienable right which every man has, of applying each and every lawful advantage to the exercise of his profession, which is the more obvious, as there exists a prevailing tendency to free industrial pursuits from all artificial restrictions adherent to them, and the time-honoured practice can only be upheld by a thorough vindication and a practical proof of its fully answering the purpose. To demonstrate this should be the chief aim of all arguments against abolition.
To an argument which has repeatedly been urged—i.e., that the granting a temporary exclusive right is indispensable (so as to secure for the meritorious inventor a reward adequate to the mental labour and money expended, as well as risk incurred, in order that there be no lack of encouragement to the inventive genius)—the objection may be raised that the remarkably developed system of communication and conveyance now-a-days, which has opened a wide field to real merit, and enables industrial men promptly to reap all benefit of production by means of enlarged outlets for their articles, will, generally speaking, bring those who know how to avail themselves before others of useful inventions to such an extent ahead of their competitors, that, even where no permanent privilege is longer admissible, they will make sure of a temporary extra profit, in proportion to the service rendered to the public.
It is, in fact, in the peculiar advantage produced by the early bringing into operation of a fresh suggestion of their minds, that the remuneration of those lies, who, through cleverness and steadiness of purpose, succeed in satisfying existing wants in a manner less expensive and superior to what previously was the case, and notwithstanding do not obtain any monopoly. Not of less account are the practical impediments which stand in the way of every effort to bring about an improvement of the Patent-Law.
It is generally admitted by the promoters of Patent-right, that the system of inquiry or examination, as it is now working in Prussia, cannot possibly remain in its present condition, and the experienced officers appointed to decide upon Patent matters and make the necessary inquiries, unanimously confirm that opinion. Though provided with relatively excellent means of ascertaining, the Prussian Technical Committee for Industry had to acknowledge as early as 1853 (Vide Prussian Trade Archives of 1854, Vol. ii., page 173, ff.) that the question whether an invention submitted for being patented might not perchance already have been made or brought into operation elsewhere, was almost an unsolvable one. Since then, inventions have augmented yearly in steadily increasing proportion. The main difficulty, however, not only rests in the impossibility of mastering the matter submitted, but equally so with the upholding of firm principles relating to the criterion of originality. If the inquiry do not altogether deviate from its primitive object by patenting any and every innovation in construction, form, or execution, which is presented, we fall into such uncertainty when sifting actual inventions from the mass of things which are not to be considered as undeniable improvements—owing to the continually increasing and diversified combinations of generally known elements or material and altered constructions or modes of application—that it is hardly possible not to be occasionally chargeable with injustice. Every day shows more clearly how annoying a responsibility grows out of such a state of affairs, and it is highly desirable that the authorities no longer be conscious of doing injustice in their duties on account of rules which cannot properly be put into practice.