As for the often much-commended so-called “application system,” it would by no means really answer the purpose; even without considering the theoretical objections which might be raised against it. Its practical results have been far from giving satisfaction wherever it has been adopted. The complaints of the abuses and impediments industry suffers under, and which are brought about through the overwhelming mass of Patents, for the most part taken out with a view to swindling speculation, the unpleasant experience acquired by those who take all legal means so as subsequently to contest and defend Patents granted without previous inquiry being made, have led to a reaction of public opinion in favour of abolishing the system.

The unsatisfactory and quite abnormal state of all matters connected with Patents in England and France had, years ago, claimed the most earnest attention of the legislators, and led to practical deliberations on the necessity and the means of effective improvements. The French Government introduced a Bill in 1858, to the effect that the hearing of objections to Patents applied for might, as much as possible, take place previous to the same being granted. A similar system which is in force in England has, however, proved inadequate in that country, and the commission which, in 1863, made a detailed statement as to the merits of the existing Patent-Law, recommended the adoption of official inquiry.

Under the circumstances, it can hardly be the question at all, for the North German Confederation, to admit of the mere “application system.” Nor can the imposition of high taxes [on patentees?] (not taking into account their inconsistency with the real object of Patents) be considered a sufficient corrective of the system, after the experience acquired in England on this head.

Both the inquiry and application systems having proved defective, the conclusion is arrived at, that the difficulties cannot be overcome by means of altering certain details in the institution, but rather arise out of constitutional infirmities of the institution itself. The Patent system makes such distinctions necessary as are now practically inadmissible, and the impracticability of which is by no means removed through merely transferring the evil from one side to the other. It must be granted that if artificial contrivances be at all required to adequately remunerate an inventor for the services rendered to society, they cannot be hit upon in this direction without hurting all important interests.

That the final step of repealing Patents altogether should not yet have been taken anywhere, in spite of the leading theoretical and practical authorities having urged it, may be easily explained by the fact that we have to deal with an institution which very long ago has taken root in the usage of the industrial nations, and to which tradition ascribes most of the immense progress industry has taken during its existence. To this may be added the apprehension lest the country which would take the lead in the matter might find itself at a disadvantage with the remainder.

Generally speaking, the anticipation of a profitable use to be made of an invention for one’s exclusive benefit is, no doubt, a powerful incitement for the inventive genius, and equally is it admitted that to temporary Patent-right we owe the successive improvements on many a useful invention.

Experience has, however, taught that in most instances Patents do not fulfil their mission; that on the whole they have not proved an actual benefit, either to the proprietor or the public; that the profits have gone just as often into the pockets of strangers as into those of the able inventor. When chiefly ascribing the progress made by industry through technical improvements in many of the countries where extensive regulations of Patent-right are provided, to the incitement consequent upon the protection afforded by Patents, the fact is overlooked that the great inventions made in old times, as well as the scientific discoveries which in the modern era paved the way for industry, have perfectly done without any such incitements. Against the stimulating influence of monopoly upon individuals, we must, however, in a period so extremely favourable to industrial progress, not underrate the very important point, that it also checks the quick and fertile development of a new thought, which, when totally free, might be expected to spring up in a higher degree from the competing labours of all. Of course, it is impossible to say whether in England, Belgium, France, and the United States, industry, if supported by other favourable stipulations, might not have taken an equal development without the protection of Patents; but we have at all events an illustration of this being the fact in Switzerland, where the absence of Patents has not at all been found prejudicial to the public at large. The records of the latter country may dispel all apprehension lest the abolition of Patents should place national industry on an unequal and disadvantageous footing with foreign. If Germany be foremost in the indicated direction, we must, it is true, be alive to the very likely occurrence of her standing, at least for some time to come, isolated on her platform. A favourable result of the movement in either England or France can hardly be looked for at a very early date, considering the state of public opinion prevailing in those countries, as well as the large individual interests at stake, owing to the wide scope for protection arising out of their Patent system, while at the same time it is yet a fact worthy of remark, that neither England nor France have been able to make up their minds as to reforming a system the numerous defects of which are universally recognised. In Germany the same difficulties do not present themselves to the same extent, the less prolixity of our Patent institution not affecting the industrial part of the nation in nearly the same ratio. The whole system in this country has been less active in all directions; proof of this is given by the statistics of Patents, as compared with those taken out abroad. The actual items in 1867 were as follows:—

ForPrussia103Patents.
”Saxony179”
”the Thuringian Union33”
”Brunswick32”
”Hesse20”
”Oldenburg12”
”Bavaria214”
”Würtemberg139”
”Baden46”

Whereas, in 1866, there were granted—