Part 2

That your petitioners have had many opportunities of becoming acquainted with the working of the laws under which Patent-rights are granted to inventors in the United Kingdom.

That your petitioners are informed that notice has been given in your honourable House of a motion in the following words:—

“That in the opinion of this House the time has arrived when the interests of trade and commerce, and the progress of the arts and sciences in this country, would be promoted by the abolition of Patents for inventions.”

That your petitioners, believing the proposed total abolition of Patent-Laws will be of great benefit to the country, are most desirous that the above-named resolution should be adopted by your honourable House.

Your petitioners, therefore, humbly pray that the said motion may pass your honourable House.

And your petitioners will ever pray, &c.

NOTES OF SPEECH OF MR. MACFIE, M.P.

Mr. Macfie, after apologies founded partly on the circumstance that, so far as he knew, this was the first occasion when the policy of granting Patents for Inventions had been discussed in Parliament, proceeded to say, that manufacturers could not be indifferent to improvements. It is indeed significant that they do dislike Patents, while they appreciate and honour inventors, even those inventors who claim from the State exclusive privileges, some of whom have the glory of being among the greatest benefactors of mankind.

In considering the important subject which he now brought forward, he submitted that it is not the interest of inventors, nor even the interest of manufacturers, of agriculturists, of miners, nor of shipping, that this House should consult, but those of the nation. The question to be considered is, do Patents, on the whole, promote our national welfare?

Another principle on which he proceeded is, that there can be no property in ideas. The Creator has so constituted nature that ideas can be held in common, which is not the case with things material. Letters Patent for inventions have been instituted in order to confirm to certain persons, and deprive every other person of, the common, natural right to act on the ideas or knowledge there patented. These exclusive privileges, while they last, are, of course, property.

Further: It is a recognised principle, that the State is not bound to grant Patents. These are grants dictated by royal favour. In the words of Stephens’ Commentaries: “The grant of a Patent-right is not _ex debito justitiæ_, but an act of royal favour.” Every Patent is a voluntary transference by the State to an individual of power for fourteen years to tax at pleasure other persons for making or doing the thing patented; aye, if he likes, to prohibit or withhold the thing altogether.

Patent-right must not be confounded with Copyright. The latter stands on perfectly different grounds, and can be advocated and upheld, as he (Mr. Macfie) himself does, in perfect consistency with disfavour for the former. There can be no rival claimant to the authorship of any particular book; many persons may honestly and indisputably claim originality in an invention. The true similarity between these two subjects of privilege is not between the book and the invention or machine, but the book and the specification of the invention. When you buy a Murray’s handbook, a book on medicine, or a commercial guide, you are at liberty to act on information you find in it, and to travel, trade, or prescribe, according to the directions you find there. But mark the contrast in what Patent-Law creates. When you buy a specification, you know it tells only of certain things that you are not at liberty to do.

Lastly: I acknowledge that it is legitimate to legislate with a view to promote or protect trade. The interference, however, which is now wanted is not a return to the old protective system of discriminative duties, but the clearing away of evil laws, and especially deliverance from the bondage and wrongs involved in Patent monopolies.

For the origin of our definite Patent legislation we go back to the famous statute of James I. of England. At that time the people of this kingdom were in a state somewhat resembling our present state. They were desirous to extend trade and introduce new arts and manufactures. Parliament was powerful and hated monopolies, under which the people had been writhing. These it reprobated in the spirit of the jurists of antiquity. While by that statute it swept away all other monopolies, it permitted, or tolerated, that the Crown should grant the exceptional privilege for “the sole working or making of any manner of new manufactures within this realm, to the true and first inventor and inventors of such manufactures, which others at the time of making such Letters Patent and grants shall not use, so as also they be not contrary to the law nor mischievous to the State, by raising prices of commodities at home or hurt of trade or generally inconvenient.”

The House will keep steadily in view the wholly different condition of commerce and the arts at that time. When these monopolies were spared, trade was very far from being developed. The field of commerce was still in a great measure clear and unoccupied. The kingdom was, commercially as well as geographically, detached from the continent. The operations of trade and the arts were slow, were conducted on a small scale and on rude systems, and yielded large profits. Exports to foreign parts were inconsiderable. There were no periodicals to give information as to anything new in the arts and sciences. Under such circumstances, if new kinds of business were to be established, it was not unreasonably thought safe, or even needful, to allure by promise of exclusive privileges. The very reverse are our present circumstances and condition.

May I be allowed now to call particular attention to the Act. Anybody may see that it authorised exclusive privileges as something exceptional, something almost loathed, as “monopolies.” The House may remember how, in conformity with this view, Patents used to be construed by the judicial bench with a leaning against them. It was clearly not contemplated that they were, as they are now, to be had at a comparatively easy price, by a very simple course of procedure organised to hand, at an office established and with machinery ready to be set in motion for the purpose. A rigid testing examination, or severe, perhaps somewhat adverse, scrutiny was implied. They were granted for England only, then containing a small population, and requiring not very much for its supply of any new article. Moreover, the coveted privilege was a concession of no more than leave or right to “work” or “make” (not vend), and that within the kingdom, which, although it is the only thing the Act allows Patents to be granted for, is not required now-a-days. The right was conferrible only on the patentee himself; whereas now-a-days, and perhaps from the first, the usage is altogether different; for the patentee is now allowed to transfer his right, by licence, to others: that is, to vend his “invention,” taking the noun, not in its sense of a thing made, but of a method, or idea, or right to make or do a thing. Without this licensing, it is of consequence to remember, the monopoly would be too grossly and glaringly bad to be defensible or maintainable. There is another contrast: by the words of the statute nobody could be patentee but only the true and first inventor. Besides, the subject of a Patent clearly was to be something palpable and visible—something that admitted not of doubt as to what it was or as to its being novel—something respecting which there could be no fear whatever that it would interfere with any already existing trade. Above all, a process or operation, especially in a trade that already existed, does not appear to be contemplated by the statute. How entirely and sadly different is the present practice in this respect. Let me first quote from Brande’s Dictionary the opening definition that shows how naturally, and as it seems, unconsciously, writers speak of “processes,” as the great or only subject-matter:—

“The word Patent is commonly used to denote a privilege accorded to an inventor for the sole use of some process by which an object in demand may be supplied to the public; or some product already familiar to the public may be made more easily and efficiently.”

So the commencement of a Paper on Patents, in the last volume of the Proceedings of the Association for the Promotion of Social Science—in the following words, “The point asserted in the following paper is, that in a grant of Letters Patent, the subject of the grant is a ‘process,’ and not ‘product’”—shows as decisively the complete change that has taken place, and, let us not forget it, without consent of Parliament, who indeed have never been consulted. The alteration of the practice, which is nothing less than a new law—a law diametrically opposed to the spirit of the statute—is the work of the courts of judicature. Better principles might have been expected to prevail, for how just is the following reflection, taken from the most important “Treatise on the Law of Patents:”—

“Every member of the community receives many benefits from the society in which he lives, and he is therefore bound, by every means in his power, to advance its interests. And it seems to be but reasonable that he should be expected to promote the public weal by putting the community in possession of any discovery he makes which may be for the public good.”

The observations I have been making are founded on the words of the statute. It is possible, and perhaps I may say probable, that outside of the statute there was an influence drawing in an opposite direction, which found expression in the Letters Patent. If these were scrutinised, it is not unlikely even the earliest would be found not to contain the strict conditions and limitations which are laid down in the Act. An incidental proof of this tendency I notice in one Patent which has met my eye, where, though the duration of the Patent in England was confined within the permitted period of fourteen years, the duration in Ireland, which was not subject to the limitation, was in same grant made so long as between thirty and forty years. I do not find, in the excellent Chronological Index issued by Mr. Woodcraft on behalf of the Patent-office, anything at all to indicate that desire to favour trade was the motive for granting Patents even after the statute was passed. On the contrary, a money consideration seems to have been customary. The Crown stipulated for yearly payments of various amount, some of these being fixed sums, others a tenth, or three-tenths, or a quarter, or a half, of the clear benefit. In one case 4d. per bushel of salt was claimed. In another case 6d. per 100lbs. of bones was stipulated for. In another I find 5s. per ton of metal stipulated. All this is suggestive, but not less the condition, introduced occasionally, that the articles manufactured should be sold at moderate rates. The moderate rates appear to have been sometimes defined, _e.g._, 100 seals of a new kind were to be sold for 1d. Similar and more stringent care was taken when Copyright first became the subject of systematic legislation, to prevent the monopoly from making books dear. All such precautions have, in our modern unwisdom, disappeared. Grotius requires under monopoly a restriction on price.

One thing, I presume, may be regarded as certain, that neither in the Act nor in the Letters is there any vestige of the modern political heresy that an invention may be legislated for as in any sense property. Even the high-sounding phrase, “the rights of inventors,” appears a recent introduction.

It is not forty years since the greatest number of persons allowed to participate in a Patent was five. This limitation was a lingering remain of the traditional character of Patents, as monopolies which ought not to be provided with facilities for extension but rather be confined within the narrowest bounds.

It is proper I should now prove from that and other authorities in law, what is the correct interpretation of the word “manufactures” in the statute, on whose meaning so much depends. My quotations will exhibit progressive development—a thing justly viewed with suspicion, whether its sphere be the ecclesiastical or the legal. What I now bring under notice, taken in connexion with the startling perversion of the words “first and true inventor” and the setting at nought the letter and spirit of the words “to make within this realm,” matches the whimsical and ruinous sophistications we smile at in the “Tale of a Tub.”

My first appeal is to Sir E. Coke’s “Institutes:”—

“If the substance was in being before, and a new addition made thereunto, though that addition made the former more profitable, yet it is not a new manufacture in law.”

That by a manufacture was meant something so definite as to involve or imply an art in the sense of a trade, will be seen by another quotation which I make from Serjeant Hawkins, who says—“the King may grant the sole use of an art invented or first brought into the realm.” So also in “Bacon’s Abridgment.” The Court of King’s Bench held—

“A grant of the sole use of a new invented art is good.... This is tied up by the statute to the term of fourteen years; for after that time it is presumed to be a known trade.”

Mr. Hindmarch writes—

“It was long doubted whether a mode, method, or process of itself, and apart from its produce or results, could legally be made the subject of a Patent privilege.”

After citing cases, he adds—

“These cases show clearly that a process of manufacturing, separate and apart, may be made the subject of a Patent privilege.”

Mr. Coryton, in his volume on “The Law of Letters Patent,” expresses his mind thus plainly:—

“On the assumption that a Patent confers a monopoly, it follows directly that the subject-matter of the Patent must be a material thing, capable of sale,[2] and cannot be either an improvement, principle, method, process, or system. In other words, the subject-matter must be, as it was originally defined, a ‘new manufacture.’ A thousand evils have arisen from affixing other than the literal interpretation to the terms,” &c.

He quotes Justice Heath, who said—

“That which is the subject of a Patent ought to be vendible; otherwise it cannot be a new manufacture.”

So Tyndal—

“That it is a manufacture can admit of no doubt: it is a vendible article, produced by the art and hand of man.”

Mark from the words of Justice Buller, on the same occasion, the sentiment which was permitted to prevail and neutralise the statute:—

“Few men possess greater ingenuity, or have greater merit. If their (Boulton and Watt’s) Patent can be sustained in point of law, no man ought to envy them the profit and advantages arising from it. Even if it cannot be supported, no man ought to envy them the profit,” &c.

We come to C. J. Eyre:—

“According to the letter of the statute, the words ... fall very short ... but most certainly the exposition of the statute, so far as usage will expound it, has gone very much beyond the letter. ‘A deliberate surrender,’ comments Mr. Coryton, ‘of judicial power in favour of an accumulation of popular errors.’... Later judges, following in the same course, have striven rather to regulate the inconsistencies they found, than to address themselves to the cause and thus prevent the possibility of their recurrence. Writers on this subject have on this head followed in the course indicated by the Bench.”

A practical commentary, and a confirmation of Mr. Coryton’s views, are furnished by the fact that the number of Patents granted in the six reigns preceding that of Geo. III. was only 540 in 85 years, or less than 6½ a-year; whereas now a greater number is granted daily.

The actual administration of Patents is exhibited to us by a Return which the House has been good enough to order on my motion. That return shows how the rate of multiplication has increased, especially in Scotland and Ireland.

There have been granted for—

In England England. Scotland. Ireland. for the Colonies. In 1650—None. 1700 2 1750 7 1800 96 13 2 6 1825 250 62 33 87 1850 523 227 531 191 1866 2,121 2,121 2,121 none 1867 2,292 2,292 2,292 none

There were in operation in the United Kingdom at the end of last year no fewer than 11,369.

The House is aware that the Patent-office makes a classification of Patents. The classification for 1866, the latest year that could be given in the Return, shows that there are nearly 300 classes, and there were Patents granted that year affecting those classes to the number of more than thirty each on the average. Taking the manufacture and refining of sugar as a test of other classes, the Return shows that in that trade there were granted more than thirty “affecting processes or operations” (without including hundreds of others of a more general character, to which manufacturers of all sorts are subjected, as, for instance, Patents for motive power, heating, &c.). Many noteworthy matters will meet the eye of any person who examines the Return, such as the following: For medical, curative, and similar “revelations,” there were granted about 80; for improvements tending to safety, nearly 350; affecting food, about 400; affecting steam-boilers, about 160; steam-engines, about 120.

But we have yet to consider the most material points in the Act. To these I now call attention. The conditions or limitations which the statute makes necessary are extremely significant. They are in these words—“Not contrary to the law nor mischievous to the State, by raising prices of commodities at home or hurt of trade or generally inconvenient.”

On these words Sir Edward Coke remarks—

“There must be _urgens necessitas_ and _evidens utilitas_.”

What might be understood by being “generally inconvenient” in the statute, and how little disposition there was to render that disqualification a dead letter, we may gather from the following extract, which shows that saving of labour was in those early days, so far from being a recommendation, an inconvenience. Hear the same authority:—

“There was a new invention found out that bonnets and caps might be thickened in a fulling mill, by which means more might be done than by the labours of fourscore men who got their living by it. It was ordained by an Act, 7 Edward VI. c. 8, that bonnets and caps should be thickened and fulled by the strength of men, and not by a fulling mill, for it was holden inconvenient to turn so many labouring men to idleness.”

On which passage Mr. Farey (a gentleman eminent on Patent questions), who quotes it in an elaborate review of Patent-Law at the end of the Blue Book of 1829, the Report of the Committee on Patents for Inventions, makes the following remarks: “If this decision had been followed, it would have set aside every Patent for invention.” True, and the more’s the pity, perhaps! Let us hail the admission.

Sir Edward explains, and I read, the whole passage that I have cited, not as a lawyer might who wished to ascertain whether by oversight in drawing the Act or by the malleability and elasticity of language it could be interpreted even non-naturally to suit a purpose, but as honest, blunt Englishmen would understand it, as the English gentlemen who passed the Act must have understood it and meant the Crown to understand it. I submit, Mr. Speaker, that at this moment, and by this statute, and according to the common law which this statute declares, Patents are illegal which raise prices or hurt trade. The framing of the sentence leaves no doubt whatever that the antecedent to the words “they be not contrary to the law nor mischievous to the State, by raising prices of commodities at home or hurt of trade,” are these words, “Letters Patent and grants of privilege.” The preceding section contains the same words. That section was introduced in order to shorten the duration of Patents granted previously, and to nullify any that raised prices or hurt trade. It is plain that the intention of Parliament and of the Sovereign was to allow no monopoly to exist whose effect would be either to interfere with the extent or efficiency of industrial occupations, or to make prices, even of the new manufacture or commodity, dearer under the restriction than they would be without it. Even so late as the last century, the consistency of monopoly with cheapening of prices was believed in. As an example, I have been told that when the Paraphrases of the Church of Scotland were issued, the monopoly was given to a particular printer, with this purpose expressly stated.

What language can be plainer than that of the statute? As that statute is still the charter of our commercial freedom and the chart by which we may discover the track we must follow in order to our return to the open and safe, and as its sound limitations are still the law of the land, I am entitled at the outset to contend that they ought to be put in force. They have been utterly neglected, and the nation suffers much from the neglect. As to this, hear my witnesses. I produce them chiefly from the following Blue-books: That issued by the Committee of this House which sat in 1829, that issued by the Committee of the House of Lords which sat in 1851, and that issued by the Royal Commission in 1865. Here remark the strange failures of expectations that characterise the proceedings of Parliament in regard to Patent-Law. The Committee of 1829 recommended that they should be allowed to continue their investigations next Session, but they appear not to have been allowed. After the inquiries of 1851 there was, as a Petition which I have perused, presented to this House, shows, an understanding that the whole subject would be inquired into; but this never has been done down to this day. A Commission was indeed appointed in 1862, but they were confined to the question of the “working” of the laws. Indications were given, both before and after it, that the question of the policy of these laws should be examined into. The Liverpool Chamber of Commerce repeatedly urged this; _e.g._, in March, 1862, when that body petitioned the House thus: “They therefore pray that your honourable House will appoint a Select Committee to inquire into the policy and operation of those laws.” But the matter is still in abeyance, and, notwithstanding promises in a Royal Speech, legislative action is suspended.

To proceed: Mr. Lennard in this House, in April, 1829, declared his opinion—“It was not desirable to facilitate overmuch the obtaining of Patents by any reduction of expense.”

So Sir Robert Peel, in the interest of the manufacturers of Lancashire, Cheshire, and Yorkshire, deprecated cheapening of Patents and their consequent multiplication. At that period another member objected even to the publishing of specifications, because

“It enabled persons to carry the invention abroad, where, of course, the Patent article was made, the foreign market shut against the real invention, and the undue benefit granted foreigners of having the free use of the invention fourteen years before the patentee’s countrymen.”

The House will observe that the complaint here is not that we were hurt in British markets—for these the protective system of duties closed—but that we lost our hold of foreign markets.