Part 1
RECENT DISCUSSIONS ON THE ABOLITION OF PATENTS FOR INVENTIONS IN THE UNITED KINGDOM, FRANCE, GERMANY, AND THE NETHERLANDS.
Evidence, Speeches, and Papers in its Favour BY Sir WILLIAM ARMSTRONG, C.B.; M. BENARD, Editor of the “_Siècle_” and “_Journal des Economistes_;” Count Von BISMARCK; M. CHEVALIER, Senator and Member of the Institute of France; M. FOCK; M. GODEFROI; Mr. MACFIE, M.P., Director, or Member, of the Liverpool, Edinburgh, and Leith Chambers of Commerce and Merchants’ House of Glasgow; Sir ROUNDELL PALMER, M.P., late Attorney-General, &c.; Right Hon. LORD STANLEY, M.P., Chairman of the late Royal Commission on Patent-Law; JAMES STIRLING, Esq., Author of “Considerations on Banks and Bank-Management,” “Letters from the South,” &c.; and others.
WITH SUGGESTIONS AS TO INTERNATIONAL ARRANGEMENTS REGARDING INVENTIONS AND COPYRIGHT.
LONDON: LONGMANS, GREEN, READER, AND DYER. 1869.
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“La legislation des brevets d’invention peut avoir l’effet d’entraver notre commerce d’exportation, et de priver l’industrie nationale de débouches utiles.... Un brevet est un privilége et un monopole. Pour que le monopole puisse être reconnu par la loi, il est indispensable qu’il repose sur un droit certain ou sur une utilité publique parfaitement établie. Le peu qui précède suffit ce me semble a démontre que l’utilité publique n’existe pas.... Le brevet d’invention a-t-il pour base un droit positif? Il semble pourtant que non....
“Telles sont les réflexions qui sont venues à un certain nombre d’hommes éclairés depuis quelque années et qui ont l’assentiment d’un bon nombre d’hommes des plus notables parmi les chefs d’industrie. Elles ont de l’écho dans touts les pays civilisés, et en Angleterre pour le moins autant qu’en France—(1) Elles ne tendent à rien moins qu’à renverser le système même des brevets d’invention, sauf à rémunérer par une dotation spéciale tout homme ingénieux qui serait reconnu, après un certain temps d’expérience, avoir rendu à la société un service signalé par quelque découverte. C’est ainsi qu’il a été procédé en France à l’égard des inventeurs de la photographie.”—From the Introduction to the “Rapports du Jury International de l’Exposition 1862, publies sous la direction de M. Michel Chevalier, President de la Section Française.”
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“Selon moi donc, le char du progres social doit être mu par l’industrie et dirigé par l’esprit chrétien. Il s’arrête à défaut de travail, il déraille à défaut de charité.... Et s’il est prouvé que c’est industrie qui nourrit l’humanité, que c’est elle qui la chauffe et la préserve contre toutes les intemperies, n’est il pas juste de dire que pousser au développement du travail, comme nous nous proposons, répandre dans l’esprit des travailleurs des idées qu’ils peuvent féconder pour arriver à une invention, a un perfectionment, a un nouveau procédé quelconque diminuant le prix de ce qui entretient la vie, que c’est là, messieurs, de la bienfaisance par excellence.”—President’s Opening Address of the Industrial and Scientific Society of St. Nicolas, 1866.
CONTENTS.
PAGE
Prefatory Note v
Letter from Professor J. C. THOROLD ROGERS viii
Remarks on an Article in the WESTMINSTER REVIEW 1
Petition of the NEWCASTLE CHAMBER OF COMMERCE 8
Notes of Mr. MACFIE, M.P., for Speech upon Motion, 28th May, 1868 9
Speech of Sir ROUNDELL PALMER, M.P., on that Occasion 93
Speech of Lord STANLEY, M.P., on same Occasion 109
Paper by JAMES STIRLING, Esq. 116
Papers by M. BENARD, “_Are Inventions Property?_” 124-150
Speeches of M. CHEVALIER and M. PAUL COQ 164
Papers by M. BENARD, “_Results of a Bad Law_” 175-180
Message of Count VON BISMARCK to NORTH GERMAN PARLIAMENT 185
Debate in the Netherlands Second Chamber 197-204
Extracts from a Memorial of the Dutch Government 225
Other Extracts regarding Abolition in Holland 226-229
Speech of E. K. MUSPRATT, Esq., in LIVERPOOL CHAMBER OF COMMERCE 231
Letter of Sir WILLIAM ARMSTRONG, C.B. 237
Letter of JOHN THOMSON, Esq. 238
Letter of ANDREW JOHNSON, Esq., M.P. 239
On the Distinction between Copyright and Patent-right, by Mr. MACFIE, M.P. 241
On Patent Monopoly, by Mr. MACFIE, M.P. 243
A Scheme for International Patents, by Mr. MACFIE, M.P. 250
Article from the TIMES on the Debate in Parliament 251
” ” ECONOMIST ” ” 255
” ” SPECTATOR ” ” 259
” ” SATURDAY REVIEW ” ” 263
Extracts from Recent Periodicals 268
Report of the COLOGNE CHAMBER OF COMMERCE 272
Extract from M. BASTIAT’S “_Harmonies Economiques_” 276
Extract from a Letter of M. PAILLOTTET, his Editor 277
Extract from M. VERMEIRE’S “_Le Libre Travail_” 277
Extracts showing Movements in BELGIUM, GERMANY, and HOLLAND 278
Extract on Perpetuity of Patent-right, by M. BOUDRON 281
Extracts on American and British Patent-Law 282
Classification of Patents 283
Illustrations Drawn from the Copper and Iron Trades 284
Note on Working Men as Inventors 286
Note on the Inventors’ Institute 287
Note on State Rewards 288
Note on the Patent-office 289
COPYRIGHT.
Observations on Remunerating Authors by Royalties 293
Suggestions How to Give Effect to this Mode 296
Extracts Showing Mr. WATTS’ Opinions on this Mode 297
Chapter from M. RENOUARD’S “_Traité des Droits d’Auteurs_” in Favour of it 301
Extract from Dr. LEAVITT’S Cobden Club Essay on International Copyright 305
Extracts on the State of the Question of Copyright in the UNITED STATES and CANADA 307
Statement of Mr. PURDAY on Same Subject 313
Letter from the Same on International Copyright in Musical Works 314
Extracts from Papers laid before the CANADIAN PARLIAMENT 316
Tendencies of Copyright Legislation, and Extracts from Recent Bill regarding Copyright in Works of Art, with Remarks on it 320
Duties on Books in Several Colonies on Behalf of Authors 326
On Trade-Marks and the CUSTOMS ESTABLISHMENT 328
The Export Book Trade of Various Countries Exhibited 330-331
Extract from the “BEEHIVE” 332
To all who are serving their generation as employers and employed, in the Arts, Manufactures, and Trades, of Leith, Musselburgh, and Portobello, and have seen and felt the evils inherent in the present State method of dealing with Inventions, these pages are inscribed,—with congratulations that in the front rank of statesmen, as well within the Cabinet as beyond it, there are earnest advocates of that emancipation of British productive industry from artificial restraints which is the needful accompaniment and the complement of free trade;—and in hope that public attention will now at length be turned towards procuring such a solution as will satisfy at same time all just pretensions of meritorious inventors and men of science.
My own bulky contribution to the attack on the last stronghold of monopoly is to be regarded as but a rough-and-ready earthwork thrown up by a pair of willing hands in front of powerful artillery whose every shot is telling. It comprises the jottings and materials which I collected for a speech intended to be delivered on 28th May, when proposing a motion in favour of abolishing Patents for Inventions.
Notwithstanding imperfections in execution, the present compilation may acceptably supply a _desideratum_ and prepare the way for further discussions, and especially for the Committee which Her Majesty’s Government continue to view with favour and will heartily support.
R. A. M.
_June 9, 1869._
While in the hands of the printer, fresh matter has, through the kindness of honoured fellow-workers in the cause, reached me almost daily, part of which is added. The reader will find in this accession to the testimonies on behalf of freedom of industry, besides some new arguments, such a striking concurrence and oneness in the principles enunciated, and even in the illustrations made use of, as, coming from various quarters independently, may fairly be regarded as presumptive proof of their accuracy.
The Government has been so good as agree to produce, in conformity with a request from Parliament, any documents in possession of the Foreign-office which show the reasons or motives of the Prussian and Dutch Governments for proposing the abolition of Patents in Germany and the Netherlands. The adoption in the latter country of abolition pure and simple, without (so far as I can see) the slightest indication of a substitute, may well reconcile professional inventors and all who unite with them to the propositions with which I close my “speech.” Now that the continental stones are dropping out of the arch which forms the System of Patents, the rest cannot long keep their place. The antiquated fabric may be expected to tumble. For public safety, the sooner Parliament and all concerned set themselves to take it down, the better.
A communication from Professor Thorold Rogers, and remarks on a recent Review, are given herewith, the former on account of its value as a vindication of economic truth and justice, the latter by way of correcting the reviewer’s accidental mistakes.
The _Daily News_, in a leading article on the 27th July, having attached importance altogether undue to a small meeting called under peculiar circumstances on the 24th, which was supposed to express opinions and wishes of artisans and operatives,[1] I addressed letters to that influential paper, which will be found in its issues of the 29th, 30th, and 31st. Of course Sir Roundell Palmer, who did the promoter of the meeting the honour to take the chair, had not, any more than myself, the smallest connexion with its origination and arrangements.
Appended are suggestions and information regarding Copyright, which came in my way while in the press about Patent-right, and which may be useful if international negotiations are contemplated for one or other or both of these kindred subjects.
I hope imperfections of translation, which I regret, and errors of the press, for which I take blame without correcting them, will be indulgently pardoned, as well as faults entirely my own in the unaccustomed part of advocate and compiler.
_July 31._
⁂ No rights are reserved. Mr. Macfie will be glad to be favoured, at Ashfield Hall, Neston, Chester, with a copy of any transcripts made or any printed matter illustrating the question of Patents.
[1] When members of “Inventors’ Associations” ask mechanics to join a crusade against freedom of industry, the best rejoinder is to ask a statement in writing to show how it can be for the interest of the millions to perpetuate fetters for the sake of investing a few hundred individuals with a chance of obtaining personal advantage by means of the power of fettering.
LETTER FROM PROFESSOR THOROLD ROGERS.
My dear Sir,—.... The fact is, no one, I presume, wishes to say that an inventor is undeserving and should go unrewarded. All that the opponents of the Patent system do say is, that the present machinery gives the minimum advantage to the inventor, and inflicts the maximum disadvantage on the public. Besides, in ninety-nine cases out of a hundred, the patentee is only a simultaneous inventor with a number of others, who lose their labour and ingenuity because one man happens to get in first....
It has always seemed to me that the weakness of the inventor’s case lies in the fact already alluded to, that he rarely is the sole inventor. Hence the fundamental distinction between Invention and Copyright, though I am no fanatical admirer of the latter privilege.
Now, if a law can confer a right on one person only by inflicting a wrong on a number of other persons, it is intrinsically vicious, and cannot be defended on the ground of its intentional goodness.
Yours faithfully,
JAMES C. THOROLD ROGERS.
July 29.
REMARKS ON A RECENT ARTICLE.
The _Westminster Review_ for July contains an article on Patents. Its proofs should have been corrected with more care. In my answer to question 1947 in the Royal Commission’s Report, the word “patented” in the following the _Review_ misprints “neglected:”—
As a matter of fact, patentees have patented things of so little value.
And in question 1954 a worse mistake is made by substituting “_some_” for “none” in the following:—
There being 400 Patents now in existence affecting your trade, none of which are made use of by you.
I have right also to complain of mistakes which do not originate with the printer. The following opinions and arguments imputed to me I disclaim:—
Had Mr. Macfie said this, we should not have been surprised. It closely resembles his contention that a book should be protected because it is something tangible, whereas an invention is something which, if not invisible, is in the nebulous condition of an idea.
What I wrote will be found below, page 241. My argument is, that the subjects of Copyright being tangible _can_ be identified as the author’s production, and nobody else’s; and that the subjects of Patent-right being modes or plans, belong to the region of ideas which may easily occur to anybody besides the first inventor.
Again: the reviewer says of Lord Stanley:—
The latter, while supporting Mr. Macfie on the main issue distinctly repudiated his leading arguments.
This would be strange if true, seeing I coincide in all his Lordship’s arguments. How, then, can he, twelve pages further on, say again:—
As for Lord Stanley, he did not hesitate to dissent from Mr. Macfie’s arguments, while giving a qualified support to his motion.
Perhaps I should object to the following representation:—
It has been proposed to replace Letters Patent by grants from the national purse. This is to revert to an obsolete custom. During the eighteenth century it was fairly tried, and the result should serve as a warning now. Seventy thousand pounds were distributed among plausible inventors in the course of fifty years. The advantage to the public was _nil_. The encouragement given to impostors was the only tangible result. Johanna Stephens obtained 5,000_l._ for disclosing the secret of her cure for the stone. A Mr. Blake got 2,500_l._ to assist him in perfecting his scheme for transporting fish to London by land, while a Mr. Foden was greatly overpaid with 500_l._, “to enable him to prosecute a discovery made by him of a paste as a substitute for wheat-flour.” Give a man a sum of money for his invention, and you run the risk of paying him either too much or too little. Give him a Patent, and you secure the invention for the public, while his remuneration in money is absolutely determined according to its value.
The _system_ of State-rewards has _not_ been tried. The reviewer’s cases do not apply. The scheme that I submit could never be abused so as to sanction such follies. It may not be a generous and royal way of dealing with inventions, but it is equitable and safe; whereas, _pace_ the reviewer, the remuneration from a Patent is not at all “determined according to its value” (that of the invention).
This interesting article is remarkable for what it omits rather than what it contains. Like almost every, if not every, defence of Patents which I have seen, it ignores the grand objection to Patents—their incompatibility with free-trade. From the beginning to the end there is not in the article the slightest allusion to the hardship they inflict on British manufacturers in competing with rivals in home, and especially in foreign, markets. Reformers of the Patent system fail to realise this—that no conceivable mere _improvement_, even, though it should clear away the present encumbrance of a multiplicity of trifling Patents, can be more than an _alleviation_ of the mischief now done. The remaining few would be the most important and valuable ones, and therefore the most burdensome, because those which, on account of the heavy royalties that will be legally claimed, must subject British manufacturers to the largest pecuniary exactions—exactions that they cannot, but their rivals often would, escape.
The writer of the article has a way of pooh-poohing adverse arguments, even when he mentions them.
That no two men produce the same book is true. It is almost as difficult for two men to give to the world two inventions identical in every detail, and equally well-fitted to subserve the same end. Much has been said about the ease with which this may be done, but authentic proofs are lacking of this having been done on a large scale.
And
Again, then, we ask for proofs of the allegation that six men are often on the track of the self-same invention.
Why, the simultaneousness, or rapid succession, of identical inventions is notorious.
He goes in the face of the strongest evidence when he says—
It is doubtful even if these objectionable Patents do any real harm. An invention which will answer no purpose is simply useless, whether it be patented or not.
And, elsewhere,
The truth must not be blinked that, if a multiplicity of worthless Patents be an evil, if the profits of manufacturers are diminished owing to the battle they have to fight with patentees, if the bestowal of Patent-right be the source of mischief and the occasion of pecuniary loss, the like complaint may be laid at the door of Copyright, and its abolition might be demanded with as great a show of fairness.
How lightly he can regard arguments of his opponents is also seen in the following passage:—
Another of Lord Stanley’s objections is that the right man hardly ever gets the reward. As he puts it, litigation being costly, and the grant of Patent-right merely amounting to permission to take legal proceedings against infringers, the poor man has no chance of asserting and defending his rights. “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.” We submit this proves nothing more than that the poor inventor, in nine cases out of ten, deserves our pity. But then, if these nine inventors are unfortunate, that does not justify the ill-treatment of the tenth.
The source of the writer’s idea, that cessation of Patents is ill-treatment, lies in the assumption which pervades the whole article, that to inventors belongs property in inventions—_i.e._, _exclusive_ right of property; or, in other words, right to require the State to use its power to prevent other persons from doing what they do, and what every other man has a natural and inalienable right to do.
Still further: shutting his eyes to the difficulty of mollifying the grievance of invention monopoly by means of “_compulsory licences_,” which the Royal Commission declared they found no way of rendering practicable—and, I add, if practicable, would be no cure of the evils, which are radical—he writes—
If to this were added a system of compulsory licences, the amount of royalty to be determined by a tribunal, in the event of the parties failing to come to terms, nearly all the really serious and valid objections to the working of a Patent-Law would be obviated.
Yet, believing himself the friend of _the public_, in spite of all the strong arguments _against_ his views and the little he himself adduces _for_ them, he very complacently tells us—
Speaking on behalf of the public, we maintain that a Patent-Law is necessary in any uncivilised community, because, without its protection, industry cannot flourish, and ingenuity can have no scope for its triumphs.
The reviewer can hardly have consulted any practical man when he pronounces it—
absurd to plead that a Patent has been infringed in ignorance, when it is certain that the ignorance, if not wilful, is wholly inexcusable.
Undoubtedly, infringements often are not acts done blamelessly in ignorance; still, I would be surprised in most cases if the infringer knew he was infringing. He is not likely to know it in making trivial improvements, for how can he know without subjecting himself to no small trouble and expense, such as ought not to be laid upon him.
There is an important point as to which the reviewer and I perhaps differ, “the extent to which Letters Patent give a monopoly in ideas.” The fact is, that the whole breadth of a _principle_ is patentable, provided any single mode of applying it can be specified.
The reviewer, adverting to the changes which have taken place in the Law of Patents since the days of Elizabeth, characterises them as “changes towards greater freedom of action on the part of the State, and greater liberty of choice on the part of the people.” This, I confess, I do not understand, except so far as it may mean there has been less and less control exercised by the State, and more and more advantage taken of this supineness by all sorts of persons. I am quite prepared to admit that in my speech I have exhibited rather a popular than a strictly legal and logical view of the meaning and legitimate applicability of the words in the statute, “nor mischievous to the State by raising prices.” All that I maintain is this,—that the spirit of the proviso is opposed to any individual Patent that keeps prices up at a level below which, if there were no grant, they might, by the natural progress of industry, be expected to fall, and to a Patent system that characteristically has that effect and is also chargeable with “hurt of trade” and “generally inconvenient.”
SPEECHES AND PAPERS ON THE ABOLITION OF PATENTS.
The following petition, which Mr. Macfie had the honour to present, contains the motion which gave occasion for the speeches that form the principal part of this compilation:—
_To the Honourable the Commons of the United Kingdom of Great Britain and Ireland in Parliament assembled._
THE PETITION OF THE NEWCASTLE AND GATESHEAD CHAMBER OF COMMERCE
Humbly sheweth,—