Part 24

From the difficulty and complexity of the subject, men would do away with Patent-Laws; but the real cause of the agitation against them lies in the enormous development which our international commerce has undergone in the last ten years through free-trade, steam-boats, and railways.

As the complete abolition of the “customs-limits,” with the German Zollverein [customs-union], was not made without a direct transformation of the Patent-Laws and a positive limitation of Patent protection, so is—through the concluding of the treaties of commerce made during the last ten years between the Zollverein and France, Great Britain, Belgium, and Italy—a _total reform_ in the Patent-Law rendered necessary.

All countries, with _the single exception of Switzerland_, recognise by their existing laws the necessity of _Patent protection_; and this case of Switzerland is particularly brought forward by those opposed to the Patent movement. The Commission which was appointed of Swiss experts (and which said that Patent protection is unnecessary and tends to nothing good) was impartial enough to avow that the particular advantages which Switzerland draws from existing circumstances arise from the fact that in all the adjoining countries the protection of Patents does exist, but in Switzerland alone not so. Swiss industry, which is exceedingly small, is placed in the position of imitating all foreign Patents which find a market in Switzerland, and getting the benefit of the discoveries made under the protection of foreign Patents. Switzerland is just in the position of a man who keeps no cats because he can use his neighbours’.

HOLLAND.

I have before me a series of valuable illustrative documents printed by the Government of the Netherlands, which are too long to introduce here. The movement for abolishing Patents in that country, already referred to on pages 196-230, was consummated by a striking majority, in the First Chamber, of no less than 29 to 1; the abolition to take effect from 1st January next, existing rights, of course, to be respected.

ON PERPETUITY OF PATENT-RIGHT.

The following observations, abridged from a review, by M. Aug. Boudron, of M. le Hardy de Beaulieu’s _La Propriété et sa Rente_, are from the _Journal des Economistes_ for May:—

The author assimilates the inventor’s privileges to proprietorship of a field. Nevertheless there is a fundamental difference between the two kinds of property. Independently of State privileges, the originator of a discovery may use it as his own, and even to the exclusion of all others, provided he keep it secret, so that he shall have no competitor to encounter; whereas the owner of a field, if he is deprived of his right, loses all. The advantages of an invention may be enjoyed simultaneously by many persons; the produce of a field by one only. Now for a difference of importance affecting the interests of the public. Give the possessor of a field his right in perpetuity, and you have circumstances the most favourable for its yielding all the produce which it can. Not so with the privilege of an inventor, for it essentially consists in hindering others from bringing the methods or materials that are patented into use. From the time of invention and first _exploitation_ the privilege is an obstacle; it limits the amount of good that society would in its absence enjoy. What, then, is the motive of certain States in conceding this exclusive privilege?... The legislators who have created the right thought that there would in consequence be a larger number of useful inventions and improvements, and that, on the whole, society would be a greater gainer than if there were no Patents.... As there are innumerable instruments and processes for which Patents have been and might still be taken, there must, if perpetuity of privilege be granted, be a prodigious number of monopolies, and almost no operation could be performed, nothing done, without people being obliged to pay tribute to some privileged person. There would be a countless host of administrators like receivers of tolls and pontages, diminishing wealth in place of creating it; the world would soon produce too little to sustain the monopolists and their _employés_. We thus arrive at an impossibility. But conceive all this possible, and the world must yet miss a great number of inventions and improvements, that would under the system of perpetuity be prevented. This is seen by the obstacles which even privileges of limited duration throw in the way of new inventions. In actual practice progress is often attained only by the use of previous inventions. But what if these are the subject of Patents the holder of which will not come to terms or cannot be treated with? Retardation, if the privilege is temporary; a full stop, if perpetual.

NOTES ILLUSTRATIVE OF MR. MACFIE’S SPEECH.

[Page 17.]

The views taken in the text as to the meaning of the word “manufacture” receive confirmation from the following extract from the _Engineer_ of June 4, 1869:—

THE AMERICAN PATENT-LAW.

... Accordingly, in the first general Patent-Law passed by Congress, the subject for which Patents were to be granted were described as the invention or discovery of “any useful art, manufacture, engine, machine, or device, or any improvement therein not before known or used.” In the next statute—that of 21st February, 1793—the phraseology was first introduced which has been ever since employed—namely, “any new and useful art, machine, manufacture, or composition of matter, or any new and useful improvement in any art, machine, manufacture, or composition of matter, not known or used before the application for a Patent.”... We have, then, the following four heads of subjects suitable for Patents—viz., an art, a machine, a manufacture, and a composition of matter.... In England, to make a new process the subject of a Patent, the word “manufacture” would be used, and would have to be interpreted somewhat liberally. Thus, in some cases, there might not be a perfect distinction between the thing itself and the art or process of making the thing.... With regard to the head “manufacture,” we cannot do better than give the definition which Mr. Curtis has added as a note to his work. He says a manufacture “would be any new combination of old materials, constituting a new result or production in the form of a vendible article, not being machinery.”...

As well as from the following extract from—

HINDMARCH ON “VENDING OR SELLING.”

“The sole privilege of making the invention as expressed ... is in truth the same in substance as the sole privilege of using and exercising it.... By the first section of the Statute of Monopolies, patents granting ‘the sole buying, selling, making, working, or using of anything’ are declared to be void, and the proviso in favour of inventions contained in the sixth section only extends to ‘grants of privilege of the sole working or making of any manner of new manufactures,’ leaving the sole buying or selling of anything within the prohibition.... The sole privilege granted by a _Patent_ for an invention authorises the inventor ‘to make, use, exercise, and vend’ the invention.... And as no one can use the invention except the patentee, no one besides him can lawfully have such articles for sale.... Every part of the privilege granted by a _Patent_ for an invention, when thus explained (!) is therefore clearly within the meaning of the exception contained in the _Statute_....”

I demur. Is there anything in the _Statute_ to prevent a person _importing_ articles and _vending_ them though the same as the privileged person is alone allowed to _make_ or _work_? In point of fact that surely might, when the statute was passed, be done from Scotland and Ireland as to manufactures not patented in these countries, but patented in England.

[Page 18.]

The number of Patents granted in the first fifty years after the Statute of Monopolies was seventy-two, or at the rate of less than one and a-half per annum.

[Page 19.]

The following list of applications for Patents up to the end of 1862, in several classes, is abridged from Mr. Edwards’ interesting treatise on, or rather against, “Letters Patent for Inventions:”—

Oct., 1852, to Before Dec. 31, 1862. Oct., 1852. Total.

Railways and Railway Carriages 1,418 630 2,018 Telegraphs 558 109 667 Steam and Steam Boilers 1,293 377 1,670 Steam-engines 1,228 704 1,932 Spinning 1,837 1,120 2,957 Electricity, Galvanism, and Electroplating 662 38 700 Sewing and Embroidery 352 40 392 Heating and Evaporating 1,108 373 1,481 Fireplaces, Grates 317 169 481 Flues and Chimneys 278 75 353 Fuel 227 129 356 Ventilating Buildings, Carriages, Ships, &c. 392 81 473

SUGGESTIVE EXTRACTS FROM DR. PERCY’S WORKS ON METALLURGY.

[Page 34.]

THE COPPER TRADE.

It would be sheer waste of time even to notice many of the mis-called improvements in copper—something for which Patents have been granted in this country during the last twenty years. Some of the patentees display such deplorable ignorance of the first principles of chemistry, and such utter want of practical knowledge, as would seem hardly possible with the present facilities of acquiring information.

Various Patents have been granted for alleged improvements in the treating of copper ores, of certain products obtained in the smelting of copper ores, &c., which are only worthy of notice as affording, as I conceive, satisfactory illustrations of the defective state of our existing Patent-Laws.... That a man who has worked out an original and valuable process from his own brain, and who may have incurred great expenses in bringing it to a practical issue—it may be, after years of protracted toil and anxiety—should have secured to him by law during a moderate term the exclusive privilege of reaping the substantial reward of his own invention, appears to me as just and reasonable as that an author should be protected against piratical and unprincipled publishers. But that the law should confer upon a man the exclusive right of appropriating to his own benefit facts which are perfectly familiar to every tyro in chemistry, and of practising operations which are of daily occurrence in the laboratories of chemists, is as impolitic as it is unjust. And surely, the particular “inventions” above referred to belong to this category. I cordially subscribe to the opinion expressed by Mr. Grove, Q.C.—namely, that the real object of Patent-Law was to reward not trivial inventions, which stop the way to greater improvements, but substantial boons to the public; not changes such as any experimentalist makes a score a day in his laboratory, but substantial, practical discoveries, developed into an available form.

THE HOT BLAST.

It cannot strictly be termed a great invention, for what great exercise of the inventive faculty could it possibly have required for its development? There was no elaborate working out of a process or machine, as has been the case in many inventions, but the thing was done at once. Without wishing in the smallest degree to detract from the merit to which Mr. Neilson is justly entitled, I may nevertheless express my opinion that the hot-blast was a lucky hit rather than an invention, properly so-called. Whatever opinion may be entertained as to the expediency of Patents, there can be no doubt that such a Patent as this ought never to have been granted. A Patent, even though it may be proved invalid, confers upon its possessor a _locus standi_ in the eye of the law, and enables him thereby to involve innocent persons in most expensive litigation, to say nothing of the attendant annoyance and anxiety. The preliminary examination before the Attorney or Solicitor-General is in many cases an absolute farce, and nothing less. The present system, although confessedly an improvement on the old one, is yet in many cases highly obstructive and injurious to national interests.

[Page 50.]

The following passage from the _Engineer_ of May 28, proves clearly that the Bessemer Patents do raise prices of iron:—

The present royalty on rails is 2_l._ per ton; on each ton a drawback of 1_l._ is nominally allowed, but the nature of Mr. Bessemer’s arrangements with regard to scrap, crop ends, waste, &c., is such that the true royalty on every ton of Bessemer rails delivered to a railway company—in other words, sold—amounts to about 1_l._ 5s. 6d. After the lapse of Mr. Bessemer’s Patents in February, 1870, this sum, all but 2s. 6d. per ton royalty on plant, will be saved; and, therefore, in March next year, rails may be bought for at least 1_l._ 3s. per ton less than they cost now.

WORKING MEN AS INVENTORS.

[Page 62.]

Somewhat to my surprise, I am led to apprehend that the interest of working men will be represented as coinciding with retention of invention monopoly. I hope they are too wide awake to believe such a fallacy, and too upright to approve of the continuance of a proved national disadvantage, even though it were not a fallacy. If Patents are injurious to the community by raising prices of articles of consumption and utility, then the operative and labouring classes, inasmuch as they constitute the bulk of the population, must be the chief sufferers. If Patents interfere with labour in any direction, and tend to drive trade away from our island, they, as the mainstays of industry, must be the chief sufferers. The only pretence for such an allegation as I am combating is this: some inventions in all trades, many inventions in some trades, are made by artisans, who therefore will lose this form of reward. True enough; but is the reward to these few individuals a compensation for the evils inflicted on the many—the millions? and is not the reward often so like the gift of a white elephant, or the catching of a Tartar—so much of a delusion, a difficulty, a disadvantage, a snare, a ruin—that their wisest counsellors would warn against its fascination, especially if through their own favour for my propositions there is the choice of fair and satisfactory alternative recompenses? The position of working men in respect to Patents is frequently dealt with in this compilation; their attention and co-operation I respectfully invite.

THE INVENTORS’ INSTITUTE.

An Inventors’ Institute has been formed for the purpose of maintaining the Patent System, and amending it in such a way as, I fear and am sure, will only make its yoke more galling and its burden heavier. The public will do well to remember that, in spite of the name, this is rather a society of patentees, including in its membership a portion only of those inventors who take Patents, and not including the innumerable inventors who do not take Patents, and who suffer by the system which the Institute is intended to perpetuate, extend, and knit more tightly on us all and in the first place on them. The honoured names who direct that society will do well to consider who are inventors and what are inventions. If they would but reflect that we are almost to a man inventors in the sense in which the great mass of patentees are such, and that the majority of inventions which choke the Patent-office are such as themselves, at any rate, would disdain to claim and scorn to annoy their fellows by patenting, they would probably arrive at the conviction—which is half-way on the road to complete emancipation of trade from the fetters they hug—that the system is so practically bad that rectification is hopeless, and would join in endeavours, not to amend what is, even theoretically, defective and bad, but to devise and introduce a thoroughly good substitute. I hope the present publication will not be in vain, when it endeavours to remove well-meaning prepossessions by force of truth.

JUSTIFICATION OF STATE REWARDS.

[Page 81.]

It is just and expedient that the public exchequer should pay inventors, because—1. The State is entitled, or required, to undertake all beneficent and useful works which, while they ought to be done for or by the nation, yet cannot be so well, or at all, done by individuals. 2. Though individuals, more than the nation collectively, will reap the benefit of these payments, it is manifest that the range of inventive improvement is so wide that on the average of years every portion of the community, and every individual in all portions, will share the benefit pretty equally. 3. The demand for remunerating inventors proceeds from the State, not manufacturers or producers. 4. These last cannot, under the _régime_ of free trade, pass over from their own shoulders upon those of consumers—who are the real, because ultimate, recipients of the benefit—the burden of royalties, or other payments to inventors. 5. The charge of £200,000 per annum is, after all, on a population of thirty-two millions but a poll-tax of _three halfpence per head_. On how easy terms would we obtain for the nation a universal, prompt enjoyment of every novelty, and complete emancipation of our commerce and manufactures from an incubus and thraldom which are every day becoming more depressing!

THE PATENT-OFFICE ESTABLISHMENT.

[Page 86.]

The Patent-office in Southampton-buildings, Chancery-lane, is an establishment highly creditable to its organisers, but far too little known. Its free consulting library should be more frequented. The publications there sold at a cheap rate, and presented gratuitously to public institutions which undertake to keep them for reference under fitting regulations, are invaluable. The indexes, manuscript and printed, there kept, are elaborate, and include lists of scientific and practical matter affecting commerce and the arts, culled from periodicals issued in all countries. No change in our manner of dealing with inventions can deprive us of, or supersede the use of, such an accessible storehouse of useful knowledge. The wonder is, that its advantages are not more extensively availed of, and that so few even of our great towns have applied for sets of its specifications and indexes. There is, in spite of the establishment’s excellence, room for improvement in several respects, one of which is in the providing better means for connecting itself with the mass of the people in the provinces.

“THE NEW CANADIAN PATENT-LAW.—The Patent Bill which has been for some time before the Parliament of the Dominion, has passed. The hope, to which we alluded a few weeks ago, that the Bill might be modified to enable Americans to obtain Patents in Canada, has not been fulfilled; and the only effect of the Bill, so far as we are interested, is to shut out American inventors from a larger amount of territory than before.”—_Extract from “American Artisan,” June 20, 1869._

NOTES AND EXTRACTS ON ROYALTY IN COPYRIGHT, WITH ESPECIAL REFERENCE TO INTERNATIONAL NEGOTIATIONS AFFECTING NORTH AMERICA.

INTERNATIONAL COPYRIGHT.

The present opportunity is availed of to recommend to notice the royalty form of International Copyright as one which might probably be acceptable to the people of the United States. I apprehend there is little or no prospect of their agreeing to negotiate on the basis of the monopoly form of Copyright which is now established in both countries. This has often, but never successfully, been urged on the United States. The advantages to British authors and publishers of so large an extension of area are obvious. There are now in that country near forty millions of people much more able to read and to buy than our thirty millions. It is in the interests of British authors, publishers, and traders, most desirable to get so large an addition to the number of the readers and buyers of English literature. Every year the benefit will be greater, but perhaps less easily attainable. The conscience and generous impulses of the great American nation will naturally incline them to negotiate on a principle which (as I hope they will consider that of royalties does) at once fairly meets the reasonable claims of authors and the equally reasonable claims, or rights, of the public. Authors and the trade would soon become familiar with, and reconciled to, the change in the form of their remuneration. They cannot but admit and feel that it is the duty of statesmen, when constituting Copyright, to take care that its effect is on the whole beneficial—as beneficial as is consistent with fair treatment of authors—to the whole body of the people for whose sake they govern. If I am warranted in anticipating that, whereas now under monopoly a new book of intrinsic value is seldom or almost never possessed by, or even seen in the houses of, the labouring population, there would under royalties be a tendency to cheapness which might be confidently relied on as the means of bringing such works within reach of the masses—not when they are stale, but when they are fresh—can I doubt that the concurrence both of authors and legislators is a matter of hope approaching to certainty? When staleness is suggested as a deterrent from, and freshness as a pleasant stimulus to, the reading of books, this is no more than the practical recognition of a taste universal among men and women, whether it concerns food material or food intellectual. Let us work it for the good of our race. But it is a quality and power unattainable except either by royalties or else by the Chinese system of open literature. That the present system works unsatisfactorily, even in a mere trade point of view, I am convinced, and for confirmation refer to figures I append from a Return on the Book Trade lately laid before the House of Commons. The sale of books at home and the export of books to the colonies and foreign parts, admit of vast expansion. We should legislate so as to accomplish, in regard to books, at the least such an expansion as has been attained in regard to newspapers. While the present form of Copyright remains in force, it would be vain to expect that the existing hindrances will be overcome. Publishers, therefore, may well co-operate. But I appeal with equal directness to philanthropists, especially all those who have the power of representing to their fellows what a folly and mistake it is to write books with a view to the moral, social, and religious welfare of men, and yet to rest satisfied with a system of law and trade that find the recompenses of authorship and of publishing ventures in a limited sale of dear books instead of an extensive sale of cheap ones—of a few good books at a large profit instead of many good books at a small! I could adduce from my own transactions conclusive proofs of the bad working and obstructive operation of monopoly in Copyright. Ireland, in particular, may well exclaim against it; for before the Union the publishers of Dublin used to drive a useful business in reprinting British works which they have, under the present system, been deprived of, to their own loss and the incalculable disadvantage of their countrymen.

The Chinese, it is said, do not recognise Copyright. What the effect is on their literature I know not. But their post-office and custom-house officers should, at any rate, rejoice that, unlike the establishments in enlightened Britain, they are not employed in the interests of private individuals as detectives of contraband literature.

I submit with some confidence a scheme I have sketched. It is one which I hope will at least prepare the way for this important national and international question receiving the earnest attention it merits.