Chapter II: Front Matter (2)

How truly did Sir W. Armstrong observe to the Commission—

“You cannot grant a monopoly without excluding other persons
who are working upon the same subject.”

Again:—

“Here the State grants to an individual a monopoly, and
therefore the public are at his mercy.”

Mr. J. S. Russell, who himself has taken out a good many Patents, speaks more specifically:—

“There are a great many Patents of that kind taken out for
boilers of steam-engines, and boilers of steam-engines admit
of a very enormous variety of shape and proportion without
damaging their efficiency.... The consequence is, that I have
not defended any of my own. I have never made of mine more
than a mere registry of priority of invention. I have not made
mine a source of money, but I have suffered in this way from
Patents: I have gone on, in the course of my business, doing my
ordinary work, and I have found other people taking out Patents
for what I was doing without calling it an invention, and then
prosecuting me under the Patent they had taken out for my own
inventions, and it appears that there is nothing to prohibit
them from doing that.”

This I can from experience endorse. He is then asked—

“If you were able to prove that you had been carrying on an
invention, whatever it might be, at the time when the person
claiming to hold a Patent for it took out his Patent, would not
that relieve you from all difficulty in the matter?—It would
only give me the pleasure of defending a law-suit.”

Mr. Curtis, engineer, Manchester, said:—

“Many parties in trade have made alterations without being
aware of their being patented, and when they have used them for
a length of time, they have found that the patentee has come
upon them and made a claim for Patent-right.”

Mr. Platt, of Oldham, whom you are happy to see as a member, said:—

“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, and the difficulty is to get at any knowledge. We may
be now infringing, and may have been infringing for years,
and a person may have been watching us all the time, and when
he thinks that we have made a sufficient number he may come
down upon us, and there is no record. A very large number of
Patents are now taken out for what is termed a combination of
known things, and known things for the same purpose, and the
descriptions of those Patents are generally so bad that it is
impossible to tell the parts that are actually patented; in
matters of that kind it has become a very serious question as
to conducting a large business.”

In 1851, Sir William Cubitt spoke of an inventor of filters:—

“After he began to supply his customers, he received notice
from a house in Liverpool that he would be prosecuted; he
received intimation of legal proceedings against him for
interfering with his, the Liverpool man’s, Patent. I have some
of those filters. The manufacturer of these things, who had no
Patent, came to me to consult me upon the subject. I at once
saw how the case stood, having regard to the specification of
the Liverpool patentee, that he (the latter) had taken out a
Patent for that which another man had before done, so exactly
that the words of the specification and the drawings fitted the
first man’s invention, which was without a Patent, therefore
his Patent would have been null and void. I advised my friend
to write to the patentee to inform him of the fact that he had
taken up a case which he could not support, and that he himself
was infringing upon the invention of the first man, who had no
Patent; that brought the Liverpool man to me, I having been
referred to as having one of these filters in use. I explained
to him that I had had the patent filter of the other man for
two or three years. Then what was to be done? I advised my
friend, who was in fact one of the Ransomes, of Ipswich,
to tell the Liverpool patentee if he did not come to some
arrangement of a business-like nature, he himself would have to
become the prosecutor, and to sue out the ‘_scire facias_’ to
make him prove his Patent-right, which is an expensive legal
proceeding, and very troublesome to a patentee. I believe they
have since made some business arrangement; but that shows how
Patents may be, and are frequently, taken out for things which
have been previously invented.”

As to the bad effects of Patents, I quote again from Mr. Scott Russell:—

“The unlimited power given by a monopoly to an inventor has
this practical effect at present, that when an invention has
been made the subject of a Patent, everybody shrinks from
it, everybody runs away from it, everybody avoids it as an
unlimited evil, because the person who has the monopoly can
subject you to a most expensive prosecution, and can charge you
a most inconvenient sum for what you have done, and can punish
you in every way for having touched his invention.”

Mr. Grove says it is natural that people should yield to the holder of the Patent, for, if

“He has a letter from a patentee saying, ‘You are infringing my
Patent;’ I do not believe that the tradesman would go to the
expense of litigation with the patentee, and for this reason,
it is the patentee’s interest to give a very large sum of money
to support his Patent. His Patent, although for a very trivial
thing, may, taking the vast extent of sale, be a very lucrative
affair, and therefore it is worth his while to lay out a large
sum of money to support his Patent. It is not worth the while
of the opponent, because he has only a little stock which
affects him; the patentee has his whole interest consolidated
in the Patent. All those who might oppose the Patent are a
scattered body, namely, the public generally, not one of whom
has any strong interest in opposing the Patent; and I believe
that that has been very much worked by patentees, particularly
in a small and comparatively frivolous and perhaps an all but
useless invention. The public is a scattered body, not one
of whom has sufficient interest to meet with equal force the
patentee.”

Mr. Platt, M.P., presents the following case, to show how unprincipled people use the power which the law gives them, and how, even with a good case, if they but knew it to be so, people in business are led to succumb to extortion:—

“The fourteen years of the Patent had expired, and five years,
so that it was nineteen years from the date of the Patent
before the action that I now speak of was commenced. It was
commenced by the parties, and I may say that the person who
was the original patentee was a person of no money whatever;
but he persuaded some party, I believe some lawyer, to advance
some money in order to take up this case. I know that many
machine-makers, rather than contest the case, absolutely paid
the money—the different sums of money that were demanded of
them. I came up this afternoon with a gentleman in a train
from Manchester, who mentioned this case to me, and who stated
that one of his own clients offered as large a sum as £2,000
in one case, to settle the matter. I found that the system was
to attack the smaller men, and by that means to extract money
in different ways, and there have been a number of instances
in which parties have paid in that way. Although not attacked
in this instance myself, a neighbour of mine was; I looked
over his evidence, and I told him that I thought I could amend
it very much, and I told him further that I would be a party
to the expense. I said, let me take the case in hand, which I
did. Now, nineteen years is a very long time for a machine,
and this machine was of a very valuable kind; hundreds upon
thousands had been made during the nineteen years, and if this
person could have established his claim to a Patent-right,
he would have made a very large sum of money, so large as to
be almost incalculable. It so happened that I recollected,
when it was brought to my memory, that we had made a number
of those machines long before the date of that Patent, and
the difficulty then was to prove that such a machine had been
made, for in nineteen years, speaking of cotton machinery, such
machines would probably all have been broken up, scarcely any
were to be found in the country; but it so happened that in one
instance a very large firm of manufacturers in Preston, of the
name of Horrocks, Miller, and Co., had two or three of these
machines still left. I got Mr. Miller to come up to London, and
we brought one of these machines with us. It was taken into
court, and in a moment their own witness admitted that this was
precisely the same thing that the other parties had been paying
royalty to this man for, and the case was at once abandoned by
Mr. Webster, who was then conducting it.”

Sir W. Armstrong told the Commission:—

“Another great evil of the Patent system is this, that an
invalid Patent really answers the purpose of protection almost
as well as a valid one. I believe that there is not one Patent
in ten which would bear scrutiny, and the mere name of a Patent
often answers all the purpose. Nobody will face the litigation
necessary to get rid of it.

“In very many cases people prefer to pay black mail rather than
undergo the expense of a law-suit?—In almost all cases; I know
that in my own experience, if I find that a man has a Patent
which I am satisfied is not a valid one, I would rather go out
of the way to avoid any conflict with him.”

So also Mr. Curtis:—

“I have in one or two cases given £200 to a party for the use
of an invention in which I have told him at once that what we
used was not an infringement in any shape or form; but rather
than run the chance of going to a tribunal where I was fighting
with a man of straw, I have consented (thinking it was prudent
to do so) to pay £200.”

Mr. Woodcroft, in keeping with all this, testified—

“I know of existing Patents which are but old inventions, as
old as the hills.”

The following extract from the Transactions of the National Association for the Promotion of Social Science presents another illustration of the mischief the Patent system works:—

“The Patent in question having been purchased for a trifle by
Mr. Foxwell, its merits were subjected to close scrutiny, and
the specification being found to be defective in some respects,
but possessing the quality of elasticity from the vagueness
of its phraseology, it was resolved to improve it under the
Disclaimer and Amendment Act. After undergoing a compound
operation analogous to pruning and grafting, it was found to
embrace almost every kind of shuttle sewing machine. In other
words, it was hoped by the possession of this invaluable Patent
to control nine-tenths of the sewing machine trade of Great
Britain. Fired with this idea, Mr. Foxwell commenced legal
proceedings against a well-known sewing machine manufacturer
for compensation for an alleged infringement of his amended
Patent, and at the third trial succeeded in driving his
opponent into a compromise, whereby the sum of £4,250 was paid
in liquidation of all demands. Encouraged by this success, he,
through his solicitor, apprised the trade of his intention to
levy royalties on the users of all needle and shuttle machines
other than those manufactured by his licences, and, failing to
bring many to his terms, he filed bills in Chancery against 134
defaulters.”

Mr. Abel, of Chancery-lane, in a recent pamphlet, writes thus, to show how, in self-defence, Patents require to be taken:—

“In many cases an inventor takes out Patents for immaterial
improvements that he is continually making in his processes or
machinery, merely for the purpose of indisputably publishing
those improvements, in order thereby to prevent the chance of
his being debarred from the use of the same, through a Patent
being obtained for them by somebody else.”

The following statement is authenticated by Mr. Grove:—

“I had at one time great doubts about it, but things have
arrived at a dead lock. The Courts now really cannot try these
cases. We have at these very sittings three Patent cases made
remanets because they cannot be tried; they interfere too much
with other business. We have at this moment going on a Patent
trial which is now in its fourth day. We have had within, I
think, a week another trial of a Patent, which lasted seven,
and a third which lasted five days. During the time that these
Patent cases have been going on there have been heavy Patent
arbitrations going on, two of which I can speak to myself; one,
I think, lasted seventeen days, and the other, which involved a
very simple issue, lasted six or seven days. Those arbitrations
went on contemporaneously, and the cases were obliged to be
tried by arbitration because the Courts could not try them; it
would have occupied too much public time. While these cases
have been going on several Patent cases have been also ready
for argument in banco, and one has been postponed.”

On this part of the subject I again cite Mr. Platt:—

“There being an adjournment, for example, for a fortnight or
three weeks, is there constantly a fresh burst of evidence to
meet the difficulty raised at the last meeting?—Yes, it is so;
and that prolongs the case very much; in fact, the case that
I have in my mind now I have no doubt will cost the parties a
sum of £4,000 or £5,000. I cannot see how it is possible for
the verdict to be against them, for it has been a frivolous and
vexatious proceeding from the beginning, and with the idea of
extorting money.”

And Mr. Scott Russell:—

“In your experience have you not seen a great number of
dishonest litigants, plaintiffs who bring actions in the way of
persecution, and defendants who desire to destroy a Patent, and
where one or other of the parties for the most part acts in bad
faith, trying to injure his adversary in any way that he can?—I
should say that the greater number of Patent cases are cases of
oppression.

“Have you known cases of oppression where the patentee has been
the oppressor?—Yes, frequently.

“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.

“Then there are cases of disputed claims by rival inventors,
which are embarrassing to a department; we do not know who has
a claim to a Patent, and sometimes when we buy a Patent of
one person we are told that we have done a great injustice to
another. I remember that when we paid for the Griffith patent
screw, which was cutting off a small portion of the screw, I
had repeated letters from Sir Howard Douglas, telling me that
it was a great injustice to him; that he had invented all
this, and that his fame was diminished, and that his rights
were taken from him by the Admiralty, who had most unjustly
and unfairly paid Mr. Griffith. Those cases are continually
arising, and of course they are very inconvenient for a
department: they not only take up a great deal of time, but
they very often prevent some very desirable process being gone
on with.”

Admiral Robinson said—

“There have been twelve upon the construction of ships since
1861.

Mr. Bush Construction of ships.
Mr. J. Clare Construction of ships.
Mr. P. Drake Construction of ships.
Mr. A. Lamb Construction of ships.
Mr. W. Rae Keels, stern posts, &c.
Mr. Thomas and Col. De Bathe Mr. G. Clarke’s target.
Mr. Truss Animal fibre. Armour plates.
Mr. Beslay Preservation of iron.
Capt. Wheatley Position of guns in ships.
M. De Lapparent Carbonising timber.
Commander Warren Bow rudder.
Mr. Feathers Construction of ships.
Messrs. Woodcraft, Smith, Ericsson, Purchase of Patents for screw
Lowe, Blaxland, and Mr. Currie. propellers.
Capt. Carpenter Screw propeller.
Capt. Trewhitt Disconnecting apparatus.
Mr. Griffith Screw propeller.
Mr. J. O. Taylor Screw propeller.
W. Ireland Cupola.
Messrs. Laird and Cowper Trimming coals in ships.
—— Distilling apparatus in ‘Defence.’

“In those cases the patentees claimed compensation for
infringement?—Yes; and it was necessary for the Admiralty to
have recourse to their solicitor, and to enter into a very long
correspondence.

“It is very possible that you may infringe upon these Patents
without knowing it?—Constantly. The inconvenience which the
Duke of Somerset has mentioned resulting from Patents applied
to shipbuilding is so very great that it is scarcely possible
to build a ship, being a combination of wood and iron (and
you always have some of each in a ship), without treading
upon somebody’s Patent; and I am entirely of opinion that the
Patents are drawn up for that especial purpose, without any
idea of their being practically applied for the benefit of
the public, but only that the patentee may lie in wait for a
colourable evasion of his Patent taking place.”

Now I present the evidence of General Lefroy, deputed by the War-office:—

“The expectations of patentees are very extravagant, generally
speaking, and prior to trial it is very difficult to determine
at all what is the value of an invention. As an example, a
gentleman some time ago made a great improvement in cooking
apparatus, and he assessed his own reward at a large portion
of the whole saving in fuel which might be effected by the
application of this improvement to an enormous extent upon the
whole military consumption of the Crown, which would have come
to many thousands of pounds. Such an improvement should not be
assessed by the value to the Crown, but by what it cost the
originator in intellectual labour or previous experiment, and
its importance in a large sense.”

Let me next cite Mr. Clode, Solicitor to the War-office:—

“If he has not the power either of keeping those improvements
perfectly secret, or of securing them to himself by Patent,
then the War-office authorities are placed in the position
of having in all probability to pay private individuals for
inventions or improvements actually made by their own officers.”

Next Mr. Abel, F.R.S., Head Chemist to the War Department:—

“In your experimental inquiries, when you have happened to
fall upon any discovery, you have not been much annoyed by
claimants saying that they have had precedence of you?—Not at
all, and it is to that that I referred in my first answer.
We do not meet practically with those embarrassments during
experiments, but we may meet with them in applying the details
of improvements. For instance, I am at present engaged upon the
working out of the application of gun cotton, the whole details
of which application were communicated as a great secret to
this Government by the Austrian Government.... While every care
was taken by this Government to keep them secret, a Patent was
taken out in this country for the whole improved process of the
manufacture.”

Mr. Clode again:—

“Some time after I commenced these experiments, while they
remained a perfect secret, and while every care was taken
by this Government to keep them secret, a Patent was taken
out in this country for the whole improved process of the
manufacture.... One of them who is present is experimenting
upon gun cotton, but it is with him a matter of extreme
embarrassment to know how to deal with the subject; if he
discloses by way of specification all that he knows, he sends
the invention or discovery he has made away to the winds—the
very night that it is put upon the file it goes to Paris,
Dresden, Berlin, and elsewhere. If he does not do that, he is
afraid that some man will find out precisely what he has in
view, and put a Patent on the file, and tax the Government in
that way. So that we are upon the horns of a dilemma.”

If I were now to stop, and say not a word more, I might trust to the candour of the House for an admission that the case against Patents is proved, on the ground that the conditions of the Statute of Monopolies have been systematically violated, these violations being of the very texture and vitals of the institution.

But I proceed. If the House permit, I will now advert to the new phases the question has assumed since the inauguration of free trade, understanding by that term _le libre échange_, and not _la liberte du travail_.

The pernicious effect of home Patents on trade with our Indian empire, is stated thus by Mr. Rendel, in 1851:—

“As engineer to the East India Railway, we had a little
inconvenience the other day; we wanted to manufacture articles
patented in this country, and we would have had to pay
Patent-rights; it was a question whether we had not better buy
the iron in India, and avoid the Patent-rights. Those cases,
I think, are constantly occurring. The Patent-Laws not being
applicable to India, people will not unfrequently order things
to be manufactured in India to avoid the licence dues in this
country; and the consequence was that I made an arrangement
with the patentees at about one-half of the ordinary charge for
the Patent in this country.”

In 1851 it was proposed, and in 1852 an Act was passed, to limit British Patents to the United Kingdom, with exclusion of the Colonies. This change was desired by an influential and intelligent portion of the West India Association. Their conduct contradicted, and their experience proves the fallacy of, the allegation so confidently made and repeated in spite of its futility, by some interested or else ignorant parties, that inventions thrive most where Patents exist—_i.e._, where trade is trammelled with prohibitions or burdened with royalties. The home sugar refiners exclaimed against an exemption which, being partial, operated against their trade. The following is an extract from one of the petitions presented by that body:—

“That, so far as regards home manufacturers and producers, such
a change of the immemorial usages of the kingdom is virtually
a bestowal on parties carrying on the same businesses in the
colonies of a right to use patented inventions fourteen years
sooner than they.

“That if, at any time, the British Parliament might have put
home manufacturers on such an unfavourable footing, surely
this cannot be supposed under free-trade and equalised duties,
when they must task their utmost energies, and adopt every
improvement in mechanism and processes, in order to maintain
their ground.

“That the use of future Patents, at the rates that have been
freely paid by sugar refiners for Patents granted before now
would subject each sugar house, of average size, to a payment
of about £3,000 a year.

“That to exempt their competitors in the colonies from such a
tax (for tax it is, payable by order of, though not to, the
State) is really to give them a bounty of that very large
amount.

“That, in so far as patent fees may be considered a premium
for stimulating improvements, an equal share of the benefit is
enjoyed by the colonists, who, therefore, should bear a due
share of the burden.”

Soon after that time, protection having ceased, the unfairness of burdening British manufacturers came more vividly into sight. How can they compete with Prussia and Switzerland? Here is evidence regarding those countries. From a Prussian witness:—

“I am a member of the Board of Trade and Commerce, and at the
same time a member of the Patent Commission.

“Will you be good enough to state what is the system adopted in
Prussia with regard to protection to inventions?—We have the
principle in our country to give as much liberty as possible to
every branch of industry and art, and, considering every sort
of Patent as an hindrance to their free development, we are not
very liberal in granting them. We merely grant a Patent for a
discovery of a completely novel invention, or real improvement
in existing inventions.”

From an important Swiss witness:—

“There is no want of persons to import them into Switzerland,
although those persons thus importing them obtain no
monopoly?—When a Patent is taken out in France or England, the
process is published; therefore it becomes the property of the
public in Switzerland; the Swiss have access to the French or
English Patents.

“In that way the Swiss have the benefit of the invention
without the charge of the licence?—Yes.

“And so far they have an advantage?—Certainly.

“When inventions in the watchmaking trade are made in France,
are they immediately introduced into Switzerland?—I should
think so, if they are useful.”

How, I ask, can British manufacturers compete with Prussia, which prudently grants less than 100 Patents in a-year; or with Saxony, which grants only about 134; or the Netherlands, which grant only about 42? Rather, I may ask, how can they compete with other countries in general, even those that grant Patents freely, seeing that it is not incumbent on the British patentee to take a Patent in any other country whatsoever; seeing also that, unlike some countries which grant Patents, we in most cases do not terminate the currency of those we grant at the time when the Patents taken elsewhere expire? Honourable members will understand how serious is the disadvantage under which our manufacturers, and with them, of course, the labourers and artisans who co-operate in manufactures, are placed if they are precluded from using inventions which their continental rivals may use. When licences are given by patentees, the disadvantage is lessened, but not very greatly. The House will agree when it hears how enormous are the royalties sometimes exacted. For a set of inventions in the iron trade, which is not the subject of Patents in Prussia, a single firm is said to be paying at the rate of £16,000 every quarter. Let me quote from a leading article in the _Engineer_:—

“Owing to the invalidation of his Austrian Patents, Mr.
Bessemer derives no pecuniary benefit from the working of
his inventions in that country. This is also the state of
things in Prussia, whose really iniquitously-managed Patent
Commission have refused to give Mr. Bessemer any Patent at
all. The great Prussian steel works there manufacture Bessemer
steel unweighted by any royalty. We regret this, not merely
for Mr. Bessemer’s sake, but also on public grounds. Our steel
makers are thus heavily handicapped in the industrial race with
royalties of from one to even three pounds per ton.”

See a confirmation of this in the following piece of a private letter:—

“The very heavy royalty payable under Bessemer’s Patent does,
to a very great extent, prevent English manufacturers competing
on the Continent for steel rails; but, from the accidental
circumstance of continental manufacturers being obliged to buy
a considerable portion of their raw material from this country,
we have not been exposed to competition in England, as the cost
of carriage backwards and forwards about equalled the benefit
which the Germans enjoyed of paying no royalty.”

The sugar-refiners, in a printed document before me, put the case, convincingly no doubt to all who will consider how small is the percentage margin of profit in great businesses:—

“If, for any invention, French producers of refined sugar
should have only royalties of one per cent. _ad valorem_, while
the British should have to pay royalties of five per cent., it
is obvious the Patent-Law may in effect impose on the latter a
most onerous differential duty.”

In that trade I myself, shortly before my retiring from commerce, paid £3,000 for a year’s right to use a new process, which proved unworkable, and had to pay a _solatium_ of £1,000 for leave to discontinue it.

The agricultural interest should not remain indifferent. Mark what was told the Commission by Mr. Reeve, Registrar to the Privy Council. In Mr. Bovill’s Patent there was charged a royalty of 6d. a quarter on all the corn ground in Great Britain by millers who thought it desirable to adopt his plan. Obviously the royalty in that case had the effect of a protective duty leviable for individual benefit, and enabling foreigners to undersell in the British markets. And what title to this power had Mr. Bovill? He was not the inventor. Another case is exhibited in the following extract from a private letter with which I am favoured, from a highly respectable quarter:—

“Patents have become so numerous and so various, that it is
not safe to use any piece of machinery, or make any variation
without first making a careful search to ascertain whether it
is not protected by a Patent. The Patent-Law has also been
the cause of much litigation, there being very few Patents of
any real worth but have had to go through the ordeal of the
Law Courts, and there can be little doubt that injustice has
frequently been done both to patentees and to the public. A
case of considerable hardship connected with our own trade
occurred regarding the application of the exhaust to grinding
purposes. It was clearly proved at the trial that the machine
for which the patentee claimed protection had been in public
use in Denmark, where it had been seen by a Glasgow miller,
who erected a similar machine on his premises in Glasgow,
but hastily threw it aside without putting it to a proper
test prior to the date of the Patent, but it was held that no
profitable use having been made of the machine by the Glasgow
miller, the Patent was good and perfectly protected. In our
opinion a Patent obtained in such circumstances should never
be allowed to stand, and if some means could be devised for
ascertaining the circumstances beforehand, it should never be
granted. The trade suffered very considerably in consequence
of this Patent being sustained, and the consequence was,
that although the patentee was not the original inventor, he
pocketed a very large sum of money.