Part 4

“Have you known cases of patentees with a good Patent, and in which there has been what may be called a dishonest attempt to destroy it?—Yes, I have known both on a very large scale; for example, there was the great hot blast case. I was engaged in that from the beginning in the capacity of arbitrator; and in that great hot blast case the whole litigation arose from the ironmasters, who were making enormous sums of money, wishing to get rid of a very small Patent rate per ton, which had accumulated to an enormous sum in consequence of the success of the Patent. The expenses in the hot blast Patent case amounted, I should think, to more than £100,000.”

In the celebrated capsule case, the expenses have been somewhere about half of that enormous sum. In another case, about three-quarters of it. How true, then, is the following, from _Chambers’ Cyclopædia_:—

“When a Patent has been granted, if it is of such a nature as to lead to competition, infringements are almost matter of course; and the only mode of discovering and checking the infringement is so ineffective that inventors generally pass their lives in constant litigation, fighting a succession of imitators, who often have nothing to lose by defeat, and therefore entail all the greater burden on the legitimate manufacturer. It has been said that not more than three per cent. are remunerative. A Royal Commission has lately been engaged in inquiries as to the best mode of remunerating inventors and improving the law with reference to infringement; but it is doubtful how far the subject is capable of being put on a better footing, so many difficulties being inherent in it.”

And how many of these pernicious Patents do honourable members think have been repealed? Allow me, as to this, to quote Mr. Grove—

“... Very few Patents have been repealed, and, generally speaking, the patentee has been victorious.”

And the Commissioners’ Report:—

“Number of Patents repealed by _scire facias_ from 1617 to October, 1852 19

“Number of Patents repealed by _scire facias_ from October, 1852, to December, 1861 None.”

A natural question suggests itself, Who is to get a Patent, since in many cases there is a plurality of almost simultaneous inventors? Listen to the words of Mr. Webster, Q.C., author of well-known books on Patent-Law:—

“I have frequently had brought before me five or six Patents for the same thing within two or three years, or perhaps even within a year. I remember a remarkable case of a Patent for an improvement in railway wheels, where there were as many, I think, as six Patents almost within six months.”

Sir W. Armstrong shows that sometimes the chief benefit of inventions goes to the wrong parties:—

“A person obtaining a Patent for a crude invention prevents other persons from entering upon the same ground unless at their own peril, and I have known cases where, in the ignorance of the existence of a Patent, improvements have been made, and practical value given to an invention which has been previously patented, and then that patentee has come forward and said, ‘That is my invention, and you must pay me for using it.’ Other people have given additional value to his Patent, that is to say, they have made improvements which he can appropriate to his Patent, and in that way it gives it an additional value. The mere conception of primary ideas in inventions is not a matter involving much labour, and it is not a thing, as a rule, I think, demanding a large reward; it is rather the subsequent labour which the man bestows in perfecting the invention—a thing which the Patent-Laws at present scarcely recognise.

“But you are unable to do so, because you cannot interfere with the Patent over it. Do you find practically that that clogs the progress of invention?—I will take one of my own inventions. I will take an hydraulic crane, for example, which I will suppose that I do not patent, and I will suppose that another person invents an improved valve and applies it to hydraulic cranes, and that he patents that improvement upon hydraulic cranes; clearly the result of that is, that if it gives an improved character to the whole machine he will obtain the monopoly of the machine, because he has a Patent for the improvement, and that carries with it the machine itself.”

Mr. Webster shows how it is that men of science, the real discoverers, miss reward:—

“The number of inventions brought out by purely scientific people I believe to be very few, and for this reason: purely scientific people want practical knowledge to enable them to carry out their own ideas; the mass of inventions, I have no doubt, are made by workmen, or persons of skill and science engaged in some actual manufacture.”

Mr. I. K. Brunel tells—

“Cooke and Wheatstone derived, I believe, a large sum of money from the electric telegraph; and I believe you will find fifty people who will say that they invented it also. I suppose it would be difficult to trace the original inventor of anything.”

Sir W. Armstrong speaks regarding that frequent case—

“An idea which is present to the minds of very many persons at the same time. Without any reference to his competency to develop that idea, and to give it practical value, he is allowed to have a monopoly of it, and thereby to exclude all other persons.”

He points out that—

“As soon as a demand arises for any machine, or implement, or process, the means of satisfying that demand present themselves to very many persons at the same time, and it is very unfair, and very impolitic I think, that the person who gets first in the race to the Patent-office should have the means of preventing all others from competing with him in the development of that particular means of process.”

Mr. Grove, Q.C., eminent in science as in law, hints at a remedy:—

“I am speaking of classes of inventions which, if they may be called inventions at all, would inevitably follow the usual course of trade and the fair scope which every man should have for modifying or improving his commodity. I would not shut out the public from those things. I would exclude from Letters Patent those changes which would naturally follow in the ordinary uses of the machines. I would not prohibit a tradesman from exercising the same ordinary skill in using his machine as we should all be expected to exercise in anything which we happened to make or from changing its form.”

Another question as naturally thrusts itself forward, How far have we benefited by having more Patents? Although the Act of 1852 has greatly multiplied the number, Mr. Woodcroft, the intelligent head of the Patent-office, gives the following answer:—

“There has been no considerable increase of bonâ fide Patents compared with the old law?—No.”

Very suggestive are the following observations of Mr. Grove, as showing which are the kinds of invention, so-called, that pay best, and how absurd, if people would reflect, they must consider our present mode of rewarding and stimulating invention:—

“A Patent may be an extremely valuable invention; for instance, the manufacture of aluminium is of the utmost importance, but it was of very little trade value for a long time. When aluminium was first made what I may call a practical manufacture, it was of no value to any tradesman at all; it would take probably ten or twenty years before such a thing could have any approach to practical value. On the other hand, the most frivolous Patent—the turn of a lady’s hat, the cutting of a shirt-frill, or a new boot-heel—may be of very considerable value, from the number of bootmakers all over the country who would have to order it, every one of whom would pay an extremely trifling licence duty, and therefore the Patent would be a very good Patent to the patentee. In my judgment those are not good subjects for Patents, and there the opponent would have no interest equivalent to that of the patentee to meet him.

“Although I know that the Law Courts have come step by step to include a greater number of inventions, yet I should not call an improvement in a shirt-frill, that is to say, a peculiar method of cutting the little puckered linen which is sewn and used for shirt-frills, or a particular shape of the brim of a lady’s hat (I am speaking of existing Patents), a proper subject for a Patent.”

The following is from the evidence of Sir Francis Crossley, Bart., M.P.:—

“A Patent was taken out for simply putting india-rubber at the end of a glove, so as to make it tight round the wrist; that might have been considered a frivolous Patent, but I believe that it was thought to be a very good one in the trade, and it was new and useful.”

So Mr. Richard Roberts, of Manchester—

“In the case of an improved button, the Patent pays very well.”

Of another class of illegitimate Patents, Mr. Newton, the eminent Patent Agent, says:—

“Patents for obvious applications.—I may take for instance the use of alpaca for covering umbrellas. There is no invention in it.”

In 1851 Mr. Carpmael was as distinct and condemnatory:—

“A multitude of things for which Patents are granted have no invention in them; in nineteen cases out of twenty, if there were cheap Patents, they would be for things which already exist, and people would only use Patents for the purpose of advertisement and publication.

“If you grant a Patent, and give to a man the means of advertisement, for a small sum of money, he will not investigate it in the slightest degree in the world; he does not inquire, and does not wish to inquire, but he goes and spends his money, and then he advertises, because the Patent appears to give him a standing different from his competitors in the same way of business.”

In 1829 Mr. Farey, Patent Agent, went further:—

“I have urged the utter worthlessness of their Patents, but they did complete the specification; they have sometimes acknowledged, and said perhaps they might nevertheless sell the Patent to some one who did not know that fact.”

Mark now how Patents hinder progress in manufacture. Hear Mr. Brunel:—

“Take the Electric Telegraph Company. I believe we should have had that telegraph much improved, and that it would be working much cheaper, and that we should have had it all over the country, but for the misfortune they laboured under, of having Patents which they were obliged to protect; and they were obliged to buy up everybody’s inventions, good or bad, that interfered technically with theirs. I firmly believe that they have been obliged to refrain from adopting many good improvements which they might have introduced themselves, but did not, because they were afraid that it might shake their Patent; and I believe that the stoppage put to inventions by this state of things is far greater than would result from secrecy.”

The same is certified by Sir W. Armstrong:—

“I am quite satisfied that a very great number of inventions which have remained inoperative for years and years, many of which I could easily name, would have been brought to perfection very much sooner if it had been open to all the intellects of the country to grapple with the difficulties of them.

“May we take it that under the present system, if a man has obtained a Patent with little or no inquiry, although that Patent would not stand investigation if opposed, yet if the patentee is content to impose a moderate tax upon those who want to use his invention, they will pay that sum without its being worth anybody’s while to contest it?—Yes.

“Do you believe that the cases of that kind are very numerous?—Very numerous, and the cases are still more numerous in which the existence of a monopoly simply has the effect of deterring other persons from following up that particular line of improvement.”

Another effect is the restraining of publication. Hear Mr. Richard Roberts’ thrilling representations:—

“I have a list of something like 100 inventions that I should have patented thirty or forty years ago, but for the cost.

“I could mention one by which many lives would have been saved if I had had a Patent for it.

“I very rarely make models, but I had one made for this. It was made many years ago. I invented it in 1830, and I mean to say that, if it had been put into practice, things would not have happened which have happened, and which have caused the loss of many lives, as connected with railways.”

I adduce this evidence to prove that inventions actually made are kept back just now. I don’t require to go far for a party who has two or three small inventions (not connected with his own line of business); but—such is our “system”—no ready means to publish, and so has for years kept them back. But a more remarkable instance is present to my mind. Since about twenty years the same party, having been then consulted by an _employé_ of a house near Birmingham, is the reticent possessor of an inventor’s secret. That inventor’s name he does not know. His invention is ingenious, and may be practicable. It affects an article of universal consumption, and, so far as I know, has never been patented or thought of by anybody else than he who confided the secret, nor introduced to use by him, although, in my opinion, sufficiently promising to be worthy of attention.

One of the ways in which Patents hurt trade is shown by Mr. Platt:—

“Are there not some large manufacturers who like to keep the monopoly of a Patent in their own hands, who obtain money and go on manufacturing without granting licences to others?—Yes.”

Sir W. Armstrong testifies to this power to refuse licences:—

“Is it not the case that such possessor could refuse you a licence, and so prevent you from making the improvements altogether?—Certainly he could.”

Lord Chelmsford confirms the legality of this procedure:—

“If he chooses to work the Patent himself exclusively, it is only doing what the law permits him to do.”

Where there is not downright refusal, Sir W. Armstrong shows that patentees ask too much:—

“I have known patentees very exorbitant in their demands for licences—far beyond the merits of their inventions.

“In that case the power of fixing an exorbitant price, really preventing the use of the article altogether, operates very disadvantageous to the public?—No doubt of it.”

So Mr. Newton:—

“The claims of patentees are very frequently, and I may say generally, excessive, and beyond the real value of their inventions; but there may be cases in which new conditions of things arise, and the invention, if invention it may be called, becomes a matter almost of necessity, and the public must have it. The case which has been put, I think, is a very strong one, in which a public company or a large capitalist buys up all the existing Patents, and thereby acquires a power which may be exceedingly oppressive.

“... I have seen much folly in the refusal of licences. I introduced the sewing machine into this country. I sold it for a small sum, and I offered some years afterwards to the owner of the Patent as much licence-money as 10_l._ per machine, and that was refused.

“A poor man invented and patented the making of ‘cock-spurs’ (supports for dishes and plates while submitted to furnace heat) by means of dies, and established a small business upon the manufacture. Some years later a gentleman improved upon the invention so far as to make the cock-spurs 500 at a time instead of singly. The earlier Patent being brought to his notice, he desired to make terms with the original inventor, and offered him a liberal sum, together with the sole right to sell the new manufacture in his own locality (the potteries). He could not, however, be brought to accept these, or indeed any terms; but, contrary to advice, commenced an action for the infringement, and was cast by reason of an unimportant claim in his specification being untenable.”

As a preventive of this abuse, and almost as a _sine quâ non_ in the Patent system, “compulsory licences” have been proposed (see the proceedings of the Social Science Association, 1858, 1860, ’61, ’62, ’63, ’64), but the Royal Commission has reported against them as impracticable.

No wonder, then, that it is said the system hurts inventors themselves, even those inventors who are patentees:—

“Nothing could work greater injustice _qua_ the inventors themselves than the present Patent-Law does. Many most meritorious inventors under the present Patent-Law are utterly ruined, enrich others, and never pocket a farthing themselves; therefore the present law is as unjust as a law can be in its practical working.”

Listen to the elder Brunel:—

“Almost invariably when the Patents come before the public, the beneficial interest in them is not held, to any great extent, by the original inventor, but that it has changed hands many times before it comes out before the public. I should say that, in the majority of cases, the original inventor gets little or nothing. In most cases the original inventor has a very small beneficial interest left in it, and in most cases I doubt whether, even in Patents that are saleable, he is much the gainer on the whole, taking into account his previous loss of time and money.”

Sir W. Armstrong points out how, and how much, poor inventors suffer:—

“I have every week letters from inventors, and I dare say you have the same; I have scores of them. Poor men 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. Many a poor man is ruined by fancying he has made a discovery which, by means of a Patent, will bring him a fortune. He loses all relish for his usual pursuits, and sacrifices his earnings to a phantom.”

Mr. Spence agrees:—

“I do not believe that any system of law could be devised which would enable a poor inventor in this country to fight his own battle. He can only fight it by interesting some capitalist, more or less wealthy, in the probable promise of his invention; the result is, as all know, that some ninety-eight out of every hundred Patents end in loss to the parties and are worthless to the public.”

Mr. Grove leads to the same conclusion from another point:—

“If the patentee himself was a wealthy man and a large manufacturer, having 20, 30, or 40 Patents in his possession, he would struggle to the utmost to maintain his Patent; he would retain the ablest advocates and the ablest scientific witnesses; and there would be no chance of repealing the Patent unless the person opposing it had something like an equality of purse to go into the field. You never could get the battle fought if one side was wealthy, without the opposite party having something like equal powers to oppose him.”

Mr. Brunel thus states his conclusion:—

“I believe them to be productive of almost unmixed evil with respect to every party connected with them, whether those for the benefit of whom they are apparently made, or the public.”

I proceed to call attention to the effect of Patents as seen and felt in Government establishments. Before doing so I quote experience in a private shipbuilding-yard.

Mr. Hall, the eminent builder of the Aberdeen clippers, says:—

“As the sailor with his pockets full is a prey to the crimps, so is a ship-contractor a prey to Patent-mongers—patent windlasses, patent reefing apparatus, patent blocks, patent rudders, patent chain-lifters, patent capstans, patent steering gear, patent boat-lowering apparatus, patent paints, and numberless others, all attempting to hook on to the poor contractor. This would be no grievance, were we not aware that most of them are patent humbugs.”

Like many others, he thinks it very doubtful whether the inventor

“Would not be as well without a law which still allows the strong to prey on the weak.”

The following is from the evidence of the Duke of Somerset:—

“I appear to bring under the notice of this Commission the great inconvenience to the Admiralty of the present state of the law. The inconvenience consists in the apparent facility with which persons can obtain Patents covering a very large number of different inventions under one Patent. For instance, there is a Patent which one gentleman obtained some years ago in building ships for a combination of wood and iron. Now, it is almost impossible to build ships in these days without a combination of wood and iron. Therefore a Patent of that kind, where it is wide-spread, as it is in this case, brings us continually under difficulties with this patentee. Whenever we apply wood and iron, he is watching to see whether or not his Patent is invaded, and he complains and says that different improvements which we have made without any notion of his Patent have been infringements of his Patent rights.... We do not know what Patents are now lying dormant; we never move without knocking against several. I think that we are stopped at every turn.... In the case of the screw-propellers the Admiralty, in 1851, purchased five different Patents, hoping that they should have peace by that means, but they had all sorts of claims afterwards; they were told that they had infringed different Patents, and they have had to pay for other Patents since.

“Persons run and take out a Patent for what they think is going to be done in that way. There are a great many in the case of iron ships. I think that when the Warrior was built there were five or six persons who all said that their Patents were infringed, though I believe that, when the Warrior was designed, none of their Patents were known to the designer, and they had never been used.... They showed me different forms of shot which had been made in the Arsenal a great many years ago, but all of which had since then been patented by different persons, who claimed these forms of shot under their Patents.