Recent discussions on the abolition of patents for inventions in the United Kingdom, France, Germany, and the Netherlands

by Unknown

M. Godefroi said:[8] I rise to make some observations on three points in the speech, containing so much that is valuable, delivered by M. Heemskerk. These points are, first, the legal basis; secondly, treating the question on the footing of Copyright; and, thirdly, the reference to the practice in foreign countries. The speech of the hon. gentleman who preceded me has made my task with reference to the two first points peculiarly easy, so that I can content myself in a great measure with simply referring to it. His confutation of the legal basis, as laid down by M. Heemskerk, appears to me conclusive. To speak of occupation in a non-material sense, to say that the primus occupans can maintain for himself or make over to another, on certain conditions, does seem to me an untenable position. We must take into consideration what the preceding speaker has already proved, that occupation from which a claim can be made, and which one can consider as equivalent to the right of possession, is inconceivable when the right is of a temporary nature. But this is not all. How can any one acquire by occupation anything that another at the same moment may occupy in precisely the same way? How is it possible that two persons at precisely the same moment (and this possibility is here not to be denied) can by occupation be possessed of the same right? I shall say no more on the first point. The second point, treating the question on the footing of literary property, or Copyright. I freely admit that, if I were convinced, in case of our consenting to pass this Bill, we should be pronouncing the abolition of Copyright, I should recoil from giving my vote in its favour. But the preceding speaker has, in my opinion, most clearly shown the points of difference between industrial and literary property. I think I may be allowed to refer, for further confirmation of the view I am taking, to the observations of a man held in general consideration, and of especial weight in this case, inasmuch as he was President of the Commission appointed by the British Government to inquire into the question of the retention or abolition of the “Law of Patents.” I refer to Lord Stanley, who, in a debate in the House of Commons on the 29th May, to which the hon. member for Gorinchem appealed, expressed himself with regard to the difference between Patent-right and Copyright in a manner so clear and distinct that I cannot even now see how I can improve upon his distinctions. Lord Stanley said, speaking of the distinction: “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 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.” And he was perfectly right. While it is impossible for two men, independently of one another, to write the same book, it is not only possible, but such a case has occurred, for two men to make the same discovery—to light upon the same invention. There are examples of this in the history of French industry. Daguerre and Niepce both pursued that line of thought from which photography took its rise, and the fact is so well ascertained that when the French Academy of Sciences had to come to a decision about assigning a reward for the invention, they divided the reward between Daguerre and the children of Niepce, then deceased. In a report made by the present Minister of Public Works in Belgium, M. Jamar, with reference to property in drawings and models of machinery, the question of Patents is treated, and I notice in it one highly important observation applicable to this subject under discussion. It is known—it appears also in the supplement annexed to the Official Report—that at the conclusion of the first Great Exhibition in London, the French Commission brought out a report, in which the renowned politician, Michel Chevalier, as the result of conclusions drawn from the Exhibition, declared himself in favour of unconditional abolition of Patents. How did Michel Chevalier come to that opinion? The report to which I refer informs us, and from it I extract the following passage: “On seeing at the Exhibition in London, at a few paces from each other, the same machines, the same tools, new productions, invented or discovered a thousand miles apart, by men who arrived at the same result sometimes by different ways, legislators and magistrates felt themselves bound to ask to what principles of justice and equity could one of these inventors appeal, that he might obtain a temporary monopoly rendering abortive the efforts and experiments on the part of ten other inventors as persevering, as conscientious, and as intelligent as himself?” When Michel Chevalier, at the London Exhibition, had seen a few paces from each other the same inventions, presented as the mental produce of persons who lived thousands of miles apart, and knew nothing of each other, he might well say that it is impossible to recognise an exclusive right. But here is another proof that industrial property and Copyright cannot be put upon the same footing. Moreover, Patent-right precludes the possibility of the same thought being carried out, at least for a time, but Copyright does not. Lastly, the third point—the appeal to the feeling in foreign countries. M. Heemskerk, in his excellent speech of yesterday, made it to appear that the feeling on this subject in foreign countries was that the abolition of Patents was condemned. It is perfectly true that at this moment, in most of the European States, there still subsist laws for conferring Patents. But must we thence infer in foreign countries an overwhelming conviction, that there must be no abolition? I do not think so. There are, in fact, evidences on this point worth attending to, which I shall proceed to lay before the House. How is it in France? The law of 1844 is still in force; but is it approved in France? Certainly not. They are convinced that the operation of this law has given rise to the most serious difficulties. This is a fact; and this fact has led to several proposals for modification which have been pending for some years, and are still pending, although the French Chambers get through their work more rapidly than we do. The proposals have been already for several years pending, because the carrying them out is hindered by the impression which the valuable report of Michel Chevalier has produced, for every day the doubt gains force whether it is a question of improving the law, or whether it is not much rather a question of putting an end to the granting of Patents. England—it is known that two investigations have taken place in that country. One in 1851, by the Upper House; the other in 1862, by a Government Commission, which issued its report in 1865. What was the result of the investigation in 1851? I find the result in the report of M. Jamar, which I just now referred to. I will read the following extract: “The result of this inquiry was remarkable. Lord Granville had been President of the Commission charged with presenting the Bill, which, while it modified the Law of Patents, respected or left untouched the principle. The inquiry so completely modified his convictions, that he did not hesitate to declare, in the sitting of the House of Lords on the 1st July, 1851, that he considered the issuing of Patents was an advantage neither for the inventors nor the public.” So the Commission of Inquiry, which undertook the task of discovering what amendments could be made in the law, came to the conclusion that it would be better to abolish Patents. I should occupy the House too long were I to quote all that M. Jamar, in his report, borrowed from this Commission of Inquiry. I will content myself with remarking that, among the witnesses examined, and on whose testimony the opinions of the Commission were founded, there were men perfectly well qualified to form a judgment. They were not only economists, men of science, but also men of business, practical men: Cubitt, President of the Institution of Civil Engineers; Brunel, the celebrated engineer; Ricardo, Member of Parliament; Reid, President of the Committee for carrying out the Great Exhibition of 1851; and other industrial and commercial witnesses, so described in Jamar’s report. According to the same Belgian report, the testimony of the English judges was very remarkable. They almost unanimously declared that it was impossible to apply the law, and that they did not ascribe this impossibility to the application of the principle in itself. Lord Granville declared also, in a sitting of the Upper House, on July 1st, 1851, that his opinion was formed from the sentiments of the judges; and he added: “The only persons who derive any advantage from the Law of Patents are the lawyers. Except, perhaps, warrants for horses, there is no subject which gives such an opportunity for roguery as the Law of Patents.” And one of the law lords of the Upper House, Lord Campbell, declared, after hearing the speech of Lord Granville, that having been for nine years legal adviser of the Crown, and having had some experience in the matter, he coincided perfectly in the opinion of Lord Granville. The inquiry made by the English Government Commission led to the same result. In the sitting of the Lower House on May 28 of the present year, of which I have already spoken, Lord Stanley distinctly said that he had taken his place in the Commission with the impression that the business before them was not to abolish Patents, but to take measures for the amendment of the English law on that subject. During the inquiry, however, together with those who took part in it he had come to the conclusion that not only the existing law, but every law on Patents, would meet with almost insurmountable difficulties, because these difficulties do not lie in the application, but are inherent in the principle. M. Heemskerk made it appear yesterday that the result of the discussion of May 28 in the Lower House was in favour of the continuance of Patents. I cannot go to such a length in my estimate of that discussion. A motion was brought forward by Mr. Macfie, [an ex-] President of the Liverpool Chamber of Commerce, to declare that the time had now arrived for the abolition of Patents. At the end of the debate the motion was withdrawn by the proposer. Now, the hon. member for Gorinchem has drawn the conclusion, from the course pursued, that the proposer durst not put his motion to the vote, because he was certain of a minority. The conclusion is somewhat hasty, for nobody can tell—we at least cannot—what the vote of the Lower House would have been had the motion been put. Besides, the object of the motion appears in the speech of the proposer. His chief aim was to invite discussion, “to lay a general view of the subject before the House,” as he expressed it, rather than to get a decision. In his speech he also gave it as his wish that the subject should be again investigated by a Government Commission. I am of opinion that, from what I have said with reference to England, the conclusion cannot be drawn that the retention of Patents is there the unqualified and prevailing determination. Belgium: The last law on Patents, the law of 1854, is there in operation. I know not if it works well, and perhaps it would have been worth while for the Government to get such information. Meanwhile I have a thick volume here before me, containing a commentary on the law, which I have not read completely through. It contains 300 pages, but I have run through it, and it appears to me that the so-called commentary is in very many respects a criticism on the law, and affords a proof that it by no means works so extremely well. Last of all, Germany: M. Heemskerk spoke yesterday of the unanimity of the Germans on the subject of maintaining Patents. I should not like to admit that unanimity so unreservedly; there are facts, at least, opposed to that assertion. This fact, for example, which we have extracted from an article in the Nieuwe Groninger Courant, just sent to us, a proposal for the abolition of Patents made to the North German Bund; and if this is carried out, no more Patents will be granted in a great portion of Germany. Another fact: so far back as 1864 the Prussian Government asked the opinion of the Chambers of Commerce on the question whether or not Patents should be maintained, and of the 47 there were 31 for the abolition and 16 against it. I scarcely venture to speak of the economists, otherwise I would appeal to the German Economic Congress of 1863, which pronounced Patents injurious to the national welfare. But there is one argument which has more weight with me than any other. I am thoroughly persuaded that a good law on Patents is an impossibility. It is, indeed, matter of regret that the hon. member for Gorinchem, when he was in the Ministry, did not try to present a good law to the Legislature. He was the right man for it. He will, however, do me the justice to believe that, when I say this, I do not mean to censure him; what I do mean is to express my regret. He is open to no censure, for during the time he held office he attended so assiduously to his duties that even his most violent political opponents were compelled to do him honour. But yet it is to be regretted that when he was Minister he did not propose an amendment of the law of 1817. We should then have seen whether it was possible or not to have a good efficient law on Patents. For my part, I have arrived at the conclusion that it is an impossibility. This is the impression made when one goes over foreign laws on Patents. There is not a single good one among them, nor one which does not give rise to difficulties which hitherto have been found to be insurmountable. But there is a further objection. According to my notions, there is a formidable stumbling-block which is directly encountered when one sets to work to frame a law on Patents. The question at once presents itself, must it not be proved that the person who demands the privilege has a right to it? When has the claimant that right? When it is proved that his invention has for its object a new industrial product, or a new operation, or a new application of an operation already known, to obtain an industrial result or an industrial product. The words which I here employ are taken from Art. 2 of the French Law, which, in my opinion, exactly express the object of the law. I now ask, if a Government is in a position, in this sense, to examine the claim of an applicant for a Patent? I shall endeavour to prove that a Government is not in such a position, and I cannot do better than quote the words of the author of the report on the French Law of 1844, the celebrated Philippe Dupin. We know that the French Law does not undertake the preliminary investigation; and, therefore, as we have been already reminded by M. de Bruyn Kops, when an announcement is made of articles for which a Patent is granted in France, the letters S. G. D. G. (sans garantie du Gouvernement) are generally added. Now, hear what Philippe Dupin says in justification of that principle of French Law, and to prove the impossibility of a preliminary examination on the part of the Government: “The preliminary examination would be the establishment of a censorship in matters of industry. And how could this censorship be carried out? How, for example, are we to decide that an industrial fact is new, and that it has not been produced in the course of manufacture or in the retreat of an obscure and industrious workman? How are we to foresee and judge the amount of utility in a discovery just made, before it has been developed, before it has been put to the proof? Who will take part in this debate? Who will represent the parties interested? Where are the judges to come from? Who will exercise this jurisdiction by guesswork in the regions of thought and futurity? Shall it be a clerk turned into a judge of what he does not understand? Shall we take a practical man, who is often only a man of routine, to judge a man of theory and inspiration? Shall we invite philosophers? But if they are philosophers, they are not to be supposed to know everything, and they have their preferences, their prejudices, their own sets; and the applicant, perhaps, contradicts their doctrines, their works, their ideas. These are incontestable impossibilities. It has been said, with as much wit as reason, in such matters the only suitable proceeding is experience, the only competent judge the public.” So much for experience. But, Mr. President, if a Government is not in a position to decide whether the claimant of a Patent has a right to it, can it be sanctioned in granting a privilege blindfold which establishes a temporary monopoly? According to my view, this is a formidable, almost insurmountable, stumbling-block, which, in my deliberate opinion, will always stand in the way of a good and efficient Law of Patents. I, therefore, am of opinion that no other satisfactory course is open to us than to abolish Patents.

M. van Voorthuysen will not enter into many details, the subject having been considered both from a juridical and an economical point of view. He will, therefore, restrict himself to a few remarks on M. Heemskerk’s speech. The hon. member acknowledges the satisfaction the project gives him; it gratifies the feelings to which he has given vent a great many times. It has been said that the measure was a step backward, as Patents have taken the place of exclusive privileges to guilds. At the time the Patent-right was assuredly an improvement on the then existing system; but we have been progressing so much since then that at present nothing short of abolition will satisfy the wants of progress. He also refers to the conclusion arrived at by Lord Stanley, which point M. Heemskerk has left unnoticed—viz., 1st, that it is impossible to reward all who deserve to be rewarded; 2nd, that it is impossible to reward adequately to the service rendered to society at large; 3rd, that it is impossible to hold third parties harmless from damage. And, in fact, the alleged instance of the Daguerre prize having been divided with another who equally proved his claim to the invention, speaks for itself. It is doubtful who was the first inventor of the steam-engine; there are several, at least, who claim the invention as their own. There is another point he feels bound to refer to. M. Heemskerk has said that abolishing Patents constitutes an attack upon the right of property, and that deputy cautions against a first step, perhaps to be followed up by others. This being a very serious inculpation, the hon. member has asked the opinion of an eminent jurist, whom he will not name as yet, whose authority M. Heemskerk is not likely to deny, and who is in many respects congenial with that esteemed deputy. The hon. member reads that opinion of one of the foremost opponents of Patent-right, who calls it an obnoxious and intolerable monopoly. And who is that clever jurist? It is M. Wintgens, who very likely owed to his extraordinary acquirements in law matters his appointment to the Department of Justice in the Heemskerk van Zuylen Ministry.

M. Fock (Secretary of State for Home Affairs) will not have much to say, after all which has been argued in yesterday’s and to-day’s Session, in defence of the project. Nevertheless he will indulge in a few remarks on the final report. With a view to the same, M. Heemskerk submits the maintenance of Patents for inventions, but the repeal of those “of admission.” But the Minister calls the attention of the House to the circumstance that the Patents for inventions which are being granted may aggregate to ten a year or thereabout. What should remain for us to keep? Or else agents here will apply for Patents on foreign inventions, so that “Patents of admission” will re-appear under a different denomination. M. Godefroi has already pointed to instances abroad, and the Minister can but add that, despite M. Heemskerk’s assertion to the contrary, the Prussian Government is by no means favourably disposed to the Patent-Law. In December, 1868, Count von Bismarck addressed a message to the North German Confederation, embodying the opinion of the Prussian Government in favour of repeal, and even hinting that Prussia would not mind taking the lead in the matter.[9] After entering into a few more details concerning the final report, the Minister once more demonstrates that Patents are great impediments to industry and free-trade, and that it is in the public’s interest that they should be abolished. The Netherlands, having once been foremost in doing away with the tax on knowledge, must not now shrink from conferring entire freedom on the field of industry. That is no reaction. Is it reaction to break off with an intolerable state of things? No; it is progress, and leads to free development. The Minister concludes with a citation from Michel Chevalier, and declines to take M. Heemskerk’s hint of deferring the discussion on the project.

M. Heemskerk Azn replies. He tenders thanks for the urbanity observed throughout the discussion. But it is undeniable that his opinion agrees with the existing right and the prevalent ideas in Europe and America. Of course, if revocation is intended, improvement of the law has to be given up. In reply to the Minister, he has no doubt but that the desire for revocation originated in Prussia, but he has said that in Germany the tide has turned in favour of Patents, on the strength of the “Deutsche Industrie Zeitung” and Klosterman’s recent work. The revocation of the Patent-Law may have been contemplated, but the Prussian Government is not now disposed to have the idea carried out. He asks but for what the English equally asked for—i.e., a renewed inquiry. What, after all, is foreign experience to the exercise of law in the Netherlands? How does the project tally with the establishment of a new division of industry in the Department for Internal Affairs, the chief occupation of which is the granting of Patents? He will not argue with the Minister on general remarks, but merely on the one relating to the abolition of newspaper stamps. Why has that tax been repealed? If henceforth a larger quantity of paper be covered with print, the tax has most likely been done away with to promote the diffusion of general knowledge. He supposes, however, the Minister will agree with Cicero, who says that fame acquired by means of deeds which are not useful is but vanity. The stamp duty has been repealed in order to be useful. And in the present case, will the Minister deny all benefits to him who does his utmost, so as to be useful? He replies also to the several members who have made speeches; he contradicts M. de Bruyn Kops about a general disposition supposed to exist in France towards revocation of Patent-Laws. Michel Chevalier only has changed his mind, but there is no opinion prevailing against Patents. Quite recently both Joseph Garnier and Wolowski have refuted Chevalier’s arguments.

The hon. member further insists upon his interpretation of the Parliamentary debates in England, and names several instances of inventors having acquired wealth. He does not admit that there is a difference between Patent-right and Copyright; imitation of articles of fabrication is, and will remain, as immoral as it is unfair. He shrinks from touching the legal side of the question, but asks whether, because of the Patent-right being restricted to a fixed time, the conclusion must needs be drawn that absolutely no right should exist, and that there should be no plea in equity whatever for an inventor to get rewarded for his labours? Does the abstract question of occupation of immaterial things cripple that hypothesis in any way? He considers it from a more general and social point of view, and vindicates his assertion that an inventor is entitled to a certain amount of protection for his work, by which, at all events, he renders a service to society; that Patents are incitements to many useful inventions and to industry, which is equally M. de Bruyn Kops’ opinion, as stated in his work on political economy. He has been asked why, when in the Ministry, he did not introduce a Patent Reform Law. In the first place, he begs to observe that much was to be done then, and besides, considering the smallness of our country, he indulged in the anticipation that the idea of an international agreement might gradually have gained ground. Should he, however, have lived longer (politically speaking), he would most likely have introduced a Bill for remodelling the Patent-Law. As for M. Wintgen’s opinion, it is almost superfluous to say that one is not bound to have in every respect homogeneous ideas with one’s political friends. In reply to the question why, as a member of the House, he does not make a proposal, he accepts the invitation, and will in September next be prepared to take, as a member of the House, the initiative of presenting a Bill for Reforming the Patent-Law, provided the project now pending be no longer discussed.

M. Van Zinnick Bergmann replies, and maintains his opinion about the justice of the Patent-right.

M. de Bruyn Kops refutes M. Heemskerk’s reply, and demonstrates, by means of fresh examples, that the Patent-right is intolerable and most obnoxious. He considers the question now merely economically; MM. van Houten and Godefroi having so ably discussed the legal points. The large benefits acquired by a few are, as taken from his point of view, prejudicial to the public at large, and against these few advantages there are great damages, as large capitals dwindle away in the chase for the snare of Patents. M. Heemskerk himself favours the revocation of Patents on the right “of admission.” What is left after that? Nothing but the Patents of invention. Why not try entire freedom and removal of all impediments?

M. Godefroi will add one word more with reference to M. Heemskerk’s readiness in accepting the challenge, of framing a new project of law, and he must say that, whatever be the nature of such proposal, it can hardly be expected to satisfy those who condemn the principles of Patent-Law. But the orator who is so well posted must certainly have framed already the main points from which the project would have to be formed. By stating and explaining those points, he would have done more service to the House than by mere opposition to those who favour abolition. The hon. member repeats the important query, whether Patents should be granted without previously inquiring into the merits of the case; and then Government would have to give its opinion just as well on an improved chignon as on an improved steam-engine.