Part 21

The present system of Patents must be retained if Patents are to be preserved, and the evils of the system flow directly from it. It is impossible to diminish appreciably the litigation attendant on Patents. Sir Roundell Palmer referred to the paraffin oil case, which occupied the Court of Chancery fifteen days. Nor could this be avoided, for the novelty of the process of distilling paraffin was the point contested, and to decide this it was necessary to examine the exact stage of discovery to which a dozen different investigators had advanced, all of whom were trying simultaneously, but independently of each other, to distil paraffin oil so as to make it a commercial product. The expense and uncertainty of Patent litigation being unavoidable, the cardinal defect of the system, that the reward it offers hardly ever goes to the right man, follows. The inventor is at one end of the scale; the transferee or licensee of the Patent is at the other, and while the latter reaps enormous gains, the inventor often has the reflection that it was he who made the discovery for his sole reward. The second great fault of the system of the Patent-Laws is an effect equally inseparable from it. These laws constantly inflict the most grievous injustice on innocent persons. Mechanical and chemical discoveries are not made by unconnected jumps. The history of science and of invention is one of gradual progress. A hundred different persons are pursuing their investigations on the same subject independently of each other, and are all nearing a particular goal, when some one man reaches it a few days before the others. The law which gives him a monopoly denies to the rest the fruit of their exertions. It is needless to refer to the numberless instances in which inventions have been discovered so nearly simultaneously that the real inventor cannot be ascertained; and it is impossible to deny that to give a monopoly to the man who is the most prompt to register his claim often inflicts a grievous wrong on the investigators who accomplish the same results in perfect independence of him. So far we have spoken only of primary discoveries. The secondary Patents, as they may be called, were rightly denominated by Sir Roundell Palmer unmitigated evils, and, according to the same high authority, they exceed in number Patents of importance in the ratio of a hundred to one. A person suggests some small improvement in the course of an elaborate manufacture, and takes out a Patent for it. Henceforth he blocks the whole trade. He cannot be got rid of, and it is not easy to deal with him. He is quite conscious of the obstacle he creates, and in the end he is probably bought off by some great manufacturer in the line of business affected by the discovery, who, by accumulating in his hands the inventions, good and bad, connected with his occupation, monopolises that particular branch of trade throughout the country.

The strength of the existing Patent-Laws lies in the vague belief of those who have not considered the subject that it would be unjust to deprive a man of the benefit of his discoveries. Those who are impressed with this elementary notion may be asked to reconcile it with the undeniable fact that the Patent-Laws do deprive, in the way we have shown, many men of the benefit of their discoveries; but a little reflection will convince them that their argument rests on a pure assumption. No man would be deprived of the benefit of his discovery because he did not receive a monopoly of its use. His own discovery would be his own discovery still. As long as he is allowed to employ his own inventions in any way he thinks proper he cannot be said to suffer any deprivation of a right. The truth is, that the Patent-Laws are a voluntary addition to our legislation based upon no such obligation as underlies the ordinary laws of property; and they must be justified, if they can be justified at all, as gratuitous creations of the Legislature, by proof that they produce some national benefit. It is from this point of view that we see the difference between the laws of Copyright and of Patents. They agree in being added on to what may be called the body of natural law, but the reasons in support of each are not the same, and the objections which apply to the law of Patents do not apply to the law of Copyright. The monopoly granted to an author does injustice to no one. The monopolies granted to patentees do injustice to many. Patents are creations of positive law, and must be judged accordingly. The Attorney-General approves them because they are designed to multiply inventions, although he admits that the multiplication of Patents is a serious evil. A sounder judgment will condemn them because of the evils necessarily attendant upon them; and we have no fear of what would happen to the course of invention or the progress of the country if they were abolished, and the inventor allowed to make such use of his invention as he may be advised. Inventions co-exist with Patents, but the experience of Switzerland is sufficient to show that they would abound if Patents did not exist, and the decline of commercial greatness with which Mr. Howard threatens us should Patents be abolished may be treated like so many other prophecies of evil which have been happily neglected and remain unfulfilled.

_Leading Article from the “Economist,” June 5, 1869._

It is probable enough that the Patent-Laws will be abolished ere long, though the full force of the real objections to them was perhaps not brought out in the debate last week on Mr. Macfie’s motion for their abolition. Sir Roundell Palmer was too metaphysical. The supposed distinction between the copyright of a book and a Patent—that no two men will hit upon the same composition even in substance, while they will hit upon the same idea for an invention—does not prove anything. If a case of general utility could be made out, the abstract justice of giving a man the monopoly of an idea, should he be the first to come upon it, would not be much considered. Lord Stanley, who avoided this mistake, dwelt too much upon such minor points as the practical failure of the law to secure a reward to the inventor and the frequent disproportion between the reward and the service rendered, which are points of _no_ consequence so long as the public is generally a gainer by the law. Lord Stanley, however, touched upon the true reason when he referred to the injury of third parties, which the present law occasions, by reason of Patents being granted to only one out of half-a-dozen persons who come upon the same inventions, or to one of a series of inventors who improve upon each other’s work, and by reason also of the general interference with manufacturing. What we should have liked to see fully stated was the peculiarity of the present circumstances of the country in which these things are true. The statements in fact amount to this—that there is a large number of inventions which Patents are not required to encourage; that these are made as ordinary incidents of business; that invention, improvement of mechanical and chemical processes, is itself a part of a manufacturing business; and that in this way the granting of Patents only impedes manufacturers to whom inventions would naturally come. The full force of these facts cannot be felt unless we recognise that a change in the character of invention has taken place. The Patent-Laws were intended to apply to different manufacturing circumstances from those which now exist, and were based upon different notions about invention; the objection to them is that they either are, or are becoming, out of date. A little consideration will show how true this is.

Let us look first at the notions still customary about inventors and inventions which are derived from past circumstances. The popular idea of an inventor is of a man who makes an immense addition to the real wealth of the world—who invents the steam engine, or the spinning jenny, or the Jacquard loom, or the hot blast—almost revolutionising the material powers of mankind. The idea associated with his work is in any case that of great novelty in means coupled with great accomplished results. Now there are various reasons why these should not be the characteristics of modern inventors and inventions, as we see they are not. It might be true that there are still as many inventions of real novelty and magnitude as ever, though we doubt if there is; and yet there would be circumstances which prevented a legislator regarding them as most important. One of these circumstances is certainly the exaggerated importance of minor improvements, in consequence of the great development of machinery and manufacturing. A single improvement to save 10 per cent, in fuel for the steam engine would probably add more absolutely to the real wealth of this generation than the invention of the steam-engine itself added to the real wealth of the generation in which it was invented. A recent invention just spoken of—the feathering of the blades of screws, increasing the facilities of using auxiliary steam-power in ships—might compare on the same footing with the most substantial invention of a poorer age. Just as the refinement of the machinery of credit, and the extent of its development, cause the least disturbance to be widely felt, so the least improvement in mechanical or chemical knowledge, applied to manufactures, may have great results. A revolutionary invention—owing to the difficulty of introduction—might not tell so quickly even as a minor improvement in an existing groove; but, in any case its effects will now be matched at the first start by these minor improvements.

These improvements again, as well as the great inventions themselves, are usually come at in recent times in a different way from that of the old inventor. Formerly the inventor had almost nothing, before him—every department of industry had to be built up from the foundation. Now a man must build upon extensive knowledge of what has been accomplished, and must have great means at his command. What Mr. Mill has just been explaining in his new book in regard to original authorship in the present day is equally true of invention: “Nearly all the thoughts which can be reached by mere strength of original faculties have long since been arrived at; and originality, in any high sense of the word, is now scarcely ever attained but by minds which have undergone elaborate discipline, and are deeply versed in the results of previous thinking. It is Mr. Maurice, I think, who has remarked, on the present age, that its most original thinkers are those who have known most thoroughly what had been thought by their predecessors; and this will henceforth be the case. Every fresh stone in the edifice has now to be placed on the top of so many others, that a long process of climbing, and of carrying up materials, has to be gone through by whoever aspires to take a share in the present stage of the work.” That is—when we speak of invention—the inventor must be a man who is closely associated with capitalists, or be a capitalist himself. In no other way can he have the means of knowing the thousand improvements of machinery and processes which have culminated in the present factories and machines; and in no other way can he find means for experiments on the necessary scale. “Poor men,” says Sir William Armstrong, “very often come to me imagining that they have made some great discovery. It is generally all moonshine, or if it looks feasible, it is impossible to pronounce upon its value until it has passed through that stage of preliminary investigation which involves all the labour, and all the difficulty, and all the trouble.” How is a poor man to get this preliminary investigation undertaken, when the subject is an amendment of a complicated manufacturing process? The complaint, in fact, was made before the Select Committee on Technical Instruction, that English manufacturing was suffering from foreign competition, because there is less room now than formerly for the play of “untaught invention.” The machine is too perfect for the workman to meddle with; and thus the foreigner, supposed to be more technically instructed, has room to excel us—our peculiar power having been “untaught invention.”

Such having been the change in the character of invention, it is easy to see why the Patent-Laws are not only not needed, but are obstructive. The inventor, in the first place, is not in the position of an old inventor. To give him scope he must be employed by a manufacturer or capitalist—that is, his skill must be already highly valued, the manufacturer naturally employing those who can introduce amendments and improvements, and keep him abreast or ahead of competitors. “I believe,” says Sir William Armstrong, again, “that if you let the whole thing alone, the position which a man attains, the introduction and the prestige, and the natural advantages which result from a successful invention and from the reputation which he gains as a clever and able man, will almost always bring with them a sufficient reward.” And again: “I think that absolute discoveries are very rare things; nearly all inventions are the result of an improvement built up upon a preceding one. A poor man who has the ability to make really practical improvements is almost sure to rise in the world without the aid of Patents.” And if the inventor may be thus indifferent to a Patent-Law, the question as to the inducement to capitalists to take up inventions may be settled by their general objection to Patents. Though there are one or two manufacturers who have monopolised a number of Patents in their trade, and so turned the law to account, it is from them that the greatest complaints come—men like Mr. Platt, or Mr. Scott Russell, or Mr. Macfie, who has just moved the abolition of the laws. The truth is, capitalists are now in a position to obtain a profit without a Patent—just as they can sometimes disregard a Patent for a long time till competition forces it upon them. Patents, then, are not required as an inducement either to inventors or capitalists, and the reason of the law fails.

But this is not all. The complaint of manufacturers at the obstruction of the present law would not be enough by itself, but it is a very serious matter when invention is part of the business of manufacturing. The law of Patents, in short, interferes with what has become the normal process of invention. Mr. Platt states: “I think that there is scarcely a week, certainly not a month, that passes but what we have a notice of some kind or other of things that we have never heard of in any way, and do not know of in the least that we are infringing upon them.” Sir William Armstrong complains of a personal grievance: “The necessity which I am under of taking out Patents, not for the purpose of obtaining for myself a monopoly, but simply for the purpose of preventing other persons from excluding me from my own inventions.” And much similar evidence was given before the Royal Commission, of which Lord Stanley was chairman. Thus the present law is not wanted to promote invention, and it is injurious to a kind of invention which would go on luxuriantly without it. The gradual nature of most inventions is a sufficient security that it will proceed under the law of competition. Perhaps the practice of Government is the best indication of the necessity for the abolition of Patents. A few years ago the manufacturing departments of Government found themselves so hampered by Patents that they resolved to try whether they were bound or not, the result being a legal opinion that they were not bound. But Government is only a great manufacturer, its work in some departments being less than in many private businesses. Is there any reason why Government should be released, and individuals bound to patentees? As to the supposition that invention will cease, the mere interest of the Government in paying for anything worth having is found a sufficient stimulus to invention in the things which it requires; and so it is assumed will be the interest of competing manufacturers.

There is a universal agreement, moreover, that no Patent-Law should cover all the inventions which are now covered. It happens that the strongest condemnation of things as they are before the Royal Commission came from witnesses who wished a change, though none suggested anything which commended itself to the Commission. The idea seemed to be that a separation could be made between substantial inventions and the improvements or amendments which are now so important, but are admitted to be unsuitable for Patents. It was thought that Patents, instead of being granted indiscriminately, should only be granted in cases of proved novelty and utility. But no working plan of a court to do this could be devised, or one which would not probably discourage inventors as much as the abolition of Patents altogether.

We come, then, to the conclusion that it is for the general interest that Patent-Laws should be abolished, and that their abolition will do no great harm to any one—least of all, to the great mass of inventors or improvers. Perhaps we may point out that, if the circumstances are as described, this country has a special interest in abolishing such laws. As the leading manufacturing country in the world, a Patent here is likely to be worth more to its holder than anywhere else; consequently our manufacturers are more exposed than any others to the interruption and worry of Patents. It may well be that other countries which are less tempting to patentees will find the balance of competition weighted in their favour in consequence. Looked at another way, the more that invention falls into the hands of great capitalists, the more likely is it to strengthen the manufacturing of a country which is already most powerful. The normal condition of things is all in our favour, and we should do nothing to thwart it.

_Leading Article from the “Spectator,” June 5, 1869._

Those who doubt whether there are subjects upon which no conclusion is possible, which baffle the ablest and most judicial minds possessing the best attainable information, should read the debate which has just taken place on the proposed abolition of the Patent Laws. The most remarkable fact of the debate was the uncompromising attack upon these laws by Sir Roundell Palmer, his eager advocacy of the opinion that they should be at once abolished; but the most significant speech was made by Lord Stanley, who exhibited perfectly the incapacity of reasonable men to come to a wholly satisfactory judgment upon them. In fact, there is a real balance of considerations which were almost exhaustively stated by Lord Stanley. If you look at one set of facts, you see good reason for conceding Patent rights; if you look at another set, you find innumerable mischiefs arising from the concession; and there is hardly any means of measuring which set of arguments preponderates. The motive of granting Patents is _primâ facie_ very simple and unobjectionable. You wish to encourage inventions, by which the wealth of the world is so much increased, and you therefore promise inventors a temporary monopoly of their use, on the single condition that the inventions shall be made public. But for some such guarantee, it is said, many inventors would have no temptation to rack their brains, and capitalists would be afraid to help them in putting their ideas into a complete shape. That invention, as a matter of fact, is to some extent encouraged, is certain, though Lord Stanley hardly touched upon the point. On the other hand, hardly any Patent-Law can do what it professes, while it is certain to do much harm; and this is, at least, the character of our own law. The rewards with which it tempts inventors are too often delusive, and they at least would have small real cause to complain of its abolition. No Patent brings its holder any immediate pecuniary right. He can only sue people who infringe his Patent, and the costliness of Patent suits is such that he is seldom able to protect himself. To make the property worth anything, a capitalist must take it up; but the capitalist, in doing so, stipulates for the lion’s share of the profit. Probably in ninety-nine cases out of a hundred the reward was obtained by such speculators, and not by inventors. This, of itself, we believe, would not be a sufficient argument against conceding Patent-rights; but it would certainly be sufficient, if inventors could be induced in some less costly way to surrender their ideas to the public. Another reason against Patents, stated by Lord Stanley—that the reward is usually but of all proportion to the service rendered—is also a strong one, if a better plan can be thought of; but the main reason, the injury to third parties, is most serious. There is a great mass of well-founded complaints as to Patents being traps for manufacturers. Improvements and amendments in the details of machinery and manufacturing processes, which would inevitably be come at by the manufacturers themselves, are appropriated beforehand by inventors who do not possess in reality any particular merit. Manufacturers, are afraid to make slight alterations, for fear an inventor comes down upon them; but they never know but what they may have to encounter an action for “something they have always done.” Even inventors themselves suffer in this way. It commonly happened that half-a-dozen men competing in the same line of business would come almost simultaneously upon the same discovery; but if A was a week or a fortnight before B, the latter was excluded from his own discovery. The Patent-Law, then, not only does little real good to patentees themselves, but a great deal of mischief to other people. Who is to decide whether the balance of advantage to the public, through encouraging invention by offering a rather delusive reward, exceeds the disadvantage of impeding manufacture and preventing people from using what they themselves discover?