Chapter III: Front Matter (3)

“A more recent instance has occurred, however, of a large sum
being pocketed by parties not the inventors of the article
patented. We can, however, only give you the figures as
popularly reported, without vouching for their accuracy, and in
relating the story we shall endeavour to reply to your queries
_seriatim_. 1st, The patented article is a machine for dressing
millstones by means of a black diamond, or piece of ‘bort,’
instead of by the hand with picks. It was originally patented
in France by the party said to be the inventor, and shortly
afterwards was patented by him in this country. 2nd and 3rd,
A Leith commission agent (a German) and an Edinburgh miller
saw the machine in the Paris Exhibition of 1867, and induced
the patentee to bring it over to Scotland for trial, and
ultimately they, in conjunction with a third party, purchased
the patentee’s right for the whole kingdom for £4,000. 4th,
These parties immediately put the machine in the market, and
it was at once seized hold of by speculators, who readily gave
most extraordinary sums for it. One party is said to have paid
£40,000 for the right for a dozen counties in England; another
£15,000 for three counties; and another £20,000 for some
counties in Ireland: the whole sum realised by the original
purchasers amounting, it is said, to upwards of £150,000. 5th,
The consequence is, that such enormous sums having been paid
by the speculators, the trade can only get the use of the
machine by paying a most exorbitant price, and hitherto it has
remained all but a dead letter. We cannot give you in round
numbers the amount expected to be realised by the speculators,
but the price originally charged by them would have yielded
four or five times the amount they paid if the whole trade had
become purchasers. This machine has not yet been the subject of
litigation, but there is every probability that it soon will
be.”

But I can reproduce a case where the effect was far, far worse, communicated to me in a private letter:—

“The patentee of the Howard series of improvements in
sugar-refining granted licences to houses in Liverpool and
Hull, with a condition in each case that he would not grant a
licence to any party carrying on business within seventy miles
of either town. A sugar refiner of long standing, established
in Sheffield, applied for a licence, and was refused for the
reason above stated, Sheffield being just within the prescribed
distance. The consequence was, he had to carry on his
manufacture for nearly fourteen years on the old system; and
during this period sustained great losses by working, which he,
as well as parties cognisant with the facts, attributed to the
disadvantage he was compelled to carry on under. His fortune
disappeared, and he became insolvent.—I am, &c.

“Sheffield, December 17, 1863.”

This distressing result will, I trust, drive home the conviction that, great as is the evil of multiplying Patents, it would be but a mitigation not worthy of being looked to as a cure, to get the number lessened.

If in an earlier part of this address I have shown that the condition not to produce “general inconvenience” has been preposterously set at nought, surely these passages prove no less conclusively that there has been equal disregard of the condition not to “hurt trade.” I will satisfy myself, and I hope the House, with one extract only to prove what I apprehend is the rule rather than the exception, that Patents offend against the other condition, not to “raise prices.” It is from a paper read by Mr. Lowry Whittle before the Statistical Society of Dublin:—

“I was informed lately of a case in the North of England where
a successful patentee produced a machine at the cost of £200
for working in the linen trade. On this machine his royalty is
£1,000.”

I may give one instance from my own experience, where the pretensions of the applicant for a Patent were equal to about a farthing a pound on all the sugar that the process perfected. The House may understand the hardship this would inflict on the population when told that it was for the use of a single process only, or rather of a machine invented by another, an engineer firm, who had overlooked, and not included in their Patent, its applicability to sugar. My experience in that case was very instructive. Pardon my introducing a few particulars. I have no reason to think the idea of applying the machine to the refining of sugar was original; on the contrary, it had been already made practical on the Continent. Nor was the idea patented by my friend alone; on the contrary, to several persons it had occurred, by some (I forget how many) it had been patented. One of my partners and I had a good deal of travelling in England and Scotland, when we discovered the first patentee of the application at length. We traced the indubitable priority home to a good neighbour, whose office was within a bow-shot of a sugar-house of which I myself was managing partner. He told me, when I called about his Patent, that he had not attended to it for years. I regret to be able to add that he was afterwards led, by representations which I will not characterise, to part with his privilege—it was really a very valuable one—for a most inadequate consideration, to a person who had applied for a parasitical Patent for something, the value of which could not be substantiated. Perhaps the worst of all is, that the really most meritorious person, the patentee of the machine, got comparatively little advantage from its new but natural application. A coalition was formed whose terms violated one of the conditions to which I have called attention, by charging an exorbitant price for the machines, and, what is the greatest mischief of Patents as now administered, by further charging high royalties proportioned to the quantity of work they did.

Now will the House consider why it subjects the nation to all this inconvenience, loss, and expense? It is not because without it we would miss many important inventions. The groundlessness of such a fear has already been indicated with sufficient plainness.

The House can hardly doubt, from its individual acquaintance with what goes on in the world, and from the extracts I have troubled it with, that whatever argument in favour of maintaining a Patent system may be founded on the claims of inventors, the material interests of the nation would suffer little from the cessation of Patents as a stimulus. Unquestionably, if the system induces some inventions to be made and published, it deters others. What we gain is a matter of doubt. That much inconvenience is inflicted by it, and much disadvantage and very heavy burdens, is no matter of doubt. It is a case in which we have to balance the positive disadvantages against the supposed advantages. To enable the House to weigh these, by seeing how few inventions we would lose by total abolition, a few more quotations may be permitted.

Very significantly Mr. Richard Roberts answers:—

“Would the absence of Patents for inventions, in your judgment,
have any effect in producing secret trades; or have you had
any opportunity of judging whether non-patented inventions are
used much in secret trade?—I do not think there is much secret
trade, but I know this, that no trade can be kept secret long;
a quart of ale will do wonders in that way.”

Let me adduce Mr. Woodcroft:—

“Do you think there is any natural tendency or propensity in
inventors to keep to themselves their inventions, or have they
a natural tendency to make them known?—The natural tendency of
an inventive mind is to make the invention known.”

I now adduce the late able Mr. Fairrie:—

“You believe that the same energy of mind would be displayed,
and the same anxiety to make new discoveries felt, whether
there were this hope of protection or not?—I think so; in the
case of manufacturers certainly. I think the great bulk of
improvements proceed from the manufacturers themselves, and not
from mere inventors.”

Hear Colonel Reid, so well entitled to speak:—

“Supposing the law were so modified as to make the acquisition
of a Patent easy and simple, and to provide for the publication
at the earliest possible period, do not you think there would
be more inducement to the disclosure of the secret under such a
system than if all privileges of the kind were abolished?—I am
inclined to think that the advance in improvement in all our
arts would be greater by leaving them entirely unshackled.”

Sir W. Cubitt was asked—

“Have you ever been an inventor yourself?—Yes, of many things;
but a patented inventor of but one.

“You have taken out a Patent?—I took out a Patent in the year
1807.

“Has your attention been at all directed to the advantages or
disadvantages of the present system?—Yes, it has been drawn to
the subject very frequently indeed; but the more it was drawn
to it, and the more I saw of it, the less I approved of it; but
with that disapproval I could not satisfy myself how to devise
anything much better; whether to make alterations, or whether
to do away with Patents altogether would be best, I can hardly
determine.

“Will you state, generally, your objections to the present
system?—The objections to the present system are the very
advanced state of scientific and practical knowledge, which
renders it difficult to secure anything. The principles of
mechanism being very well known and very well understood,
inventions involving exactly the same principle and to effect
the same object may be practically and apparently so different,
that Patents may be taken out for what is only a difference in
form, intended to produce the same effect, without there being
any difference in principle.”

So Sir W. Armstrong:—

“My firm conviction is, that if there was no artificial reward
for invention you would have just as much as at present.”

Mr. Grove perhaps goes at least part of the way:—

“The Patent is to encourage invention; if, therefore, you would
get the same inventions as we now get without Letters Patent,
I would have no Letters Patent at all. I believe that, with
respect to the minor class of inventions, you would get them.”

Mr. Platt also has his doubts:—

“Is not almost every Patent which is now granted a Patent for
an improvement?—A great many Patents are granted for things
which are no improvement at all.

“I would simply limit the Patent-Law to that extent. I think
there are so many Patents granted that it is a great question
with me, I confess, if Patents for these combinations are
to be granted, whether it would not be better to abolish
the Patent-Laws altogether, as it becomes such a nuisance in
conducting a large business.”

How emphatic was Mr. I. Kingdom Brunel:—

“Do you think that there would be an equal inducement for a
man to turn his attention to improvements if there were no
Patent-Laws, as compared with the present state of things,
which lead him to the expectation and hope that he will obtain
some exclusive advantage from the discovery of some new
improvement?

“I feel certain of it; I have felt it very strongly, and
it always struck me as surprising that it was not seen by
everybody else; but we have so long been in the habit of
considering that the granting of an exclusive privilege to a
man who invents a thing is just and fair, that I do not think
the public have ever considered whether it was, after all,
advantageous to him. My feeling is, that it is very injurious
to him.

“My impression is, that in every class of inventions you
would practically in the end have a more rapid supply and
increase of inventions than you have now; I believe that men
of science, and all those who do it for pleasure as well as
for profit, would produce more, they would be less interfered
with by existing Patents, and they would really produce more; I
believe that the working class, the smaller class of inventors,
would introduce very much more. With respect to that class
of inventions, which I believe to be very few in number,
though they are talked of very much, which really involve
long-continued expenses, I believe they would probably be
brought about in a different manner. I wish, however, to have
it understood that I limit my observations to the present state
of things. I do not wish to express any opinion as to what
might have been formerly the effects of Patents, or whether
they did originally encourage inventions or not. I believe that
in the first place they are very prejudicial, on the whole, to
a large class supposed to exist of inventors, and principally
from these circumstances: the present state of things is this,
that in all branches, whether in manufactures or arts of any
sort, we are in such an advanced state, and every process in
every production consists of such a combination of the results
of the improvements which have been effected within the last
twenty or thirty years, that a good invention now is rarely a
new idea.”

So likewise Mr. James Spence:—

“The evils of the present system are serious. There is a charm
in the name of a Patent which entices large numbers of men to
neglect their own affairs in pursuit of some phantom. Where
intellectual power exists of an inventive character, it will
develop itself without any spur; it is, indeed, irrepressible
in its nature. To such minds the stimulus of a Patent is
superfluous.

“Besides the progress of the arts, another change has occurred
which affects this question. Formerly improvements made slow
progress, and unless an inventor were protected for many
years he had little chance of recompense. Now the power of
advertising is so great and intelligence is so diffused, that
any really useful invention can be brought immediately into
operation and profit. Were Patents abolished, any one with an
invention of value could find a manufacturer to take it up. It
is true it would be open to the rest of the world as soon as
found out, but the manufacturer would obtain the first start
of all others, in itself a profit. Under the present system
the legal protection breaks down in practice. The moment a
specification is published, competing manufacturers strain
their wits to contrive how to reach the same result through
other means or modifications; in other words, how to infringe.
Against this the patentee has no remedy, except proceedings at
law of the most costly nature.

“No change can be proposed in Patent-Law that will not be open
to objections based on individual cases of hardship; but, on a
comprehensive view of the subject in all its bearings, I hold
that it would benefit the country to abolish the system _in
toto_. Manufacturers would be relieved from present perplexity,
delusions would no longer be kept up by excitement, an enormous
waste of money would be stayed; and whilst the mass of
worthless Patents would disappear, any of real value would be
taken up on its merits and produce sufficient remuneration to
the inventor.”

The Report of the Commission, founded on the evidence of which I have shown the general character, contains the following just observations:—

“The majority of witnesses, however, decidedly affirm the
existence of practical inconvenience from the multiplicity of
Patents. It is clear that Patents are granted for matters which
can hardly be considered as coming within the definition, in
the Statute of Monopolies, of ‘a new manufacture.’ It is in
evidence that the existence of these monopolies embarrasses
the trade of a considerable class of persons, artisans, small
tradesmen, and others, who cannot afford to face the expense
of litigation, however weak the case against them may seem to
be; and a still stronger case is made out as to the existence
of what may be called obstructive Patents, and as to the
inconvenience caused thereby to manufacturers directly, and
through them to the public.

“Other instances will be found in the evidence of particular
manufactures and branches of invention which are so blocked up
by Patents, that not only are inventors deterred from taking
them up with a view to improvement, but the manufacturer, in
carrying on his regular course of trade, is hampered by owners
of worthless Patents, whom it is generally more convenient
to buy off than to resist. The evil also results in another
practice, having the same obstructive tendency—namely, that of
combination amongst a number of persons of the same trade to
buy up all the Patents relating to it, and to pay the expense
of attacking subsequent improvers out of a common fund. From a
comparison of evidence, it cannot be doubted that this practice
prevails to a considerable extent. We must also conclude that
when the obstruction is not to be got rid of without the
expense and annoyance of litigation, in a large majority of
cases the manufacturer submits to an exaction, rather than
incur the alternative.

“We desire to call special attention to the evidence given by
the First Lord of the Admiralty, and by various witnesses on
behalf of the War Department, showing the embarrassment which
has been caused to the naval and military services by the
multitude of Patents taken out for inventions in use in those
departments.

“It has long been the practice, founded on judicial decision,
to consider that the use or publication of an invention
abroad did not deprive that invention of the character of ‘a
new manufacture within this realm.’ It appears to us, and is
generally admitted in the evidence, that the present facilities
of communication subsisting between all parts of the world have
done away with the only valid reason for such a construction of
the words of the Statute of Monopolies. The object of allowing
such Patents might fairly be, in an age of slow international
communication, to encourage enterprising persons to go in
search of, and to introduce to this country, useful processes
employed abroad, but not otherwise likely to be adopted here,
for the want of which we should long have been behind other
nations. It does not, however, seem worth while to continue
the same facilities now, when foreign inventions are most
frequently patented in this country and in their native land
simultaneously; especially, as we are well informed, that one
result of the practice is to encourage unscrupulous persons to
steal the inventions of foreigners and to run a race with the
legitimate owner to get them patented here.”

The extracts which I have culled sufficiently prove that, in the opinion of men selected because they were competent to speak with authority on account of their character, ability, and experience, our Patent system is “generally inconvenient” and is “hurtful to trade.” Being so, it is inconsistent with the conditions on faith of which, while other monopolies were prohibited by the Act, it was spared. But I rest my case on absolute evils, without regard to that inconsistency. I am sure nobody can go over the evidence as a whole, or even those scraps of evidence which I have presented—I am well aware in a very promiscuous and ineffective manner—without becoming convinced that the trade and manufactures of this country are seriously obstructed, fettered, retarded, harassed, and burdened, sometimes demoralised, often wronged, or even robbed, by the multitude and vexatious character of Patents, and by the claims and conduct of patentees;—that these Patents, though very numerous, in general possess little merit, yet often produce large revenues, the result of exactions from persons who use them, to the assignees, rather than to the original grantees,—that the uncertainty of receiving a good return (in place of which experience shows there is, in most cases, disappointment or even positive loss), and the utter incongruity existing between the earnings, where there are any, and the merits of inventions, render the system of Patents an exceedingly unsatisfactory way of stimulating invention or rewarding inventors;—and that there is wide-spread dissatisfaction with things as they are, yet despair of amendment, among the most intelligent of those portions of the community for whose benefit the system is plausibly represented to exist.

The evidence goes to show that the poor man and the working man suffer in two ways. Such cannot bring their inventions into play for want of capital, and they could not, even if it were in that respect different, make head against rich infringers who are able by the costliness of law proceedings to set them at defiance. I might allege, also, that while the expenses of patenting are clearly too heavy to suit the circumstances of the poor, there is little or no favour shown by any influential witnesses to propositions for reducing them, because of the tendency that a suitable reduction would have to still further multiply Patents. Surely this indicates sufficiently that there is something radically wrong in the principle on which we proceed.

Allow me, while adverting to the case of the poor, to express my belief that the Patent system has an effect on wages which demands the serious consideration of the friends of working men. I believe it helps to keep wages low. The abolition would work in this manner: whenever, in any establishment, an improvement is introduced, the fact of its use becomes, of course, speedily known throughout the establishment and in other establishments. The _employés_ who in their ordinary occupations must come to know what the improvement is and how to work according to it—for this is a matter of necessity, especially now that operations are conducted on a large scale, with the indispensable aid of men intelligent and independent—very soon find they are in request. To prevent their leaving, they are offered an advance, which itself in its turn may be outbid. The rise which indisputably would result in the case of individuals will, in my opinion, tend towards a general rise. If I am correct in my anticipations, operatives and artisans are much injured by Patent-Laws. But independently of this hypothetical advantage, a good system of dealing with inventors will be beneficial directly to operatives, by removing from trade the present hindrances.

Having seen how little store there is set on Patents by eminent engineers, by manufacturers, and by the public services, let me appeal to eminent statesmen. Among these I name foremost the apostle of free-trade. Mr. Cobden told me, many years ago, that he was opposed to Patents; and at a later period, Oct., 1862, he wrote:—

“I have a growing doubt of the value and justice of the
system, whether as regards the interests of the public or the
inventors.”

Lord Granville, then Vice-President of the Board of Trade, the Chairman of the Committee on the Patent Bills, told the House of Lords, on July 1, 1851—

“The last witness was the Master of the Rolls, who,
notwithstanding the experience he had had as one of the law
officers of the Crown in administering the Patent-Laws, and
although he took charge of the first Bill which the Government
proposed on the subject, was decidedly of opinion that
Patent-Laws were bad in principle, and were of no advantage
either to the public or inventors.... All the evidence that
had been brought before the Committee, both of the gentlemen
who were opposed to the system of Patents and those who were
most strongly in favour of it, had only tended to confirm
his previous opinion that the whole system is unadvisable
for the public, disadvantageous to inventors, and wrong in
principle. The result of the experience acquired by the present
Vice-Chancellor and Lord Chief Justice of the Queen’s Bench
had raised great doubts in their minds as to whether a law of
Patents was advantageous. The Chief Justice of the Common Pleas
likewise had written him a letter, which he authorised him to
make what public use of he pleased, declaring his concurrence
in his opinion that a law of Patents was neither advantageous
to the public nor useful to inventors.... The only persons,
he believed, who derived any advantage from the Patent-Laws
were members of the legal profession. Except perhaps warranty
of horses, there was no subject which offered so many
opportunities for sharp practice as the law of Patents. As
regards scientific men, too, the practice of summoning them as
witnesses on trials respecting Patents had an injurious, if not
a demoralising, effect.... They sometimes allowed themselves to
be betrayed into giving a more favourable opinion of the merits
of an invention than was strictly accurate.”

Lord Harrowby judiciously said, in reference to the proposition then for the first time made to exempt the Colonies from the incidence of British Patents—

“The colonial refiner would be enabled to avail himself of
every new invention in the manufacture of sugar, to the
prejudice of the home refiner, who would have to pay for the
Patent-right.”

Lord Campbell—

“Having been some years a law officer of the Crown, had some
experience as regarded the question at issue, and he begged to
say that he entirely approved of the view of his noble friend,
Earl Granville.”

Sir James Graham, on Aug. 5 of the same year, observed—

“There was also evidently great division of opinion among Her
Majesty’s Ministers upon this subject. The Vice-President of
the Board of Trade, in the House of Lords, when introducing
this Bill, expressed a decided opinion adverse to the principle
of Patents altogether. The noble Secretary for the Colonies
(Earl Grey) agreed with the Vice-President of the Board of
Trade, and now it was found that the advisers of the Crown had
put an end altogether to Patents in the colonies. Was it right,
then, to continue a system in England which had been condemned
in principle by the advisers of the Crown? And were they to
legislate upon a question which the divisions in Her Majesty’s
Council rendered still more doubtful?”

Mr. Cardwell, sensibly and patriotically,

“Would remind the House of the case of the sugar-refiners of
Liverpool, who complained of this part of the Bill.”

I need not quote Mr. Ricardo, whose lamented death prevented him from urging the present subject as he intended. Allow only the following observations of Mr. Roche, who on the same occasion—

“Entirely agreed that the Patent-Laws should be abolished
altogether. They might depend on it that nine-tenths of the
Patent inventions, under any law that could be passed, would
be nothing less than so many stumbling-blocks in the way of
improvement.”

Here is an extract from the proceedings of the British Association at Glasgow:—

“Mr. Archibald Smith was convinced that a majority of
scientific men and the public were in favour of a repeal of the
Patent-Law, and he believed its days were numbered. He held it
was the interest of the public, and not the patentees, that
should be consulted in the matter. This was a growing opinion
amongst lawyers and young men of his acquaintance.”

I revert to the injurious influence of Patents in incapacitating manufacturers to compete with their foreign rivals, and am able to submit Continental testimony that such is the inevitable effect. The following lengthy quotation will suffice from M. Legrand, Auditor of the Council of State of France:—

“There is in this institution not only an obstacle to the
development of home trade, but also a shackle on foreign
commerce.

“The doors which we open by our Treaties of Commerce may by
means of Patents be closed.

“Let an invention be freely worked in Belgium; if in France
it be patented, Belgian produce cannot enter there. Let
the contrary be the case; we cannot export to Belgium the
production which is free with us, but patented at Brussels.

“Let us suppose, for example, that a new colour is patented
alone in France, and that the patentee only permits the
manufacture of the colour on payment of a high royalty: this
colour will become dear, to the profit of the patentee alone,
and the detriment of all; its exportation, or the exportation
of articles dyed with this colour, into a country where the
manufacture is free, will become impossible, because in that
country they will begin to fabricate it, and its price will be
diminished to the extent of the royalty exacted for it by the
patentee.

“The French producer will necessarily be placed in such a
situation that he will be unable to sustain any foreign
competition.

“It is of consequence, so far as it depends on legislators,
to place those countries on the same footing who unite in the
peaceful, beneficent struggle of competition.

“But with the sound notions which prevail amongst persons of
intelligence, it is evident that the uniform solution to which
every one would adhere cannot be one which would recognise
Patents.

“The making all discoveries free is the system which alone
would have the chance of being adopted by all nations.

“It would certainly put an end to more injustice than it would
originate.”

I had the pleasure of being present at a numerously-attended meeting of the Economists of Germany held at Dresden in 1863, which almost unanimously adopted a resolution against all Patents; quite in harmony, I may say, with formal resolutions of commercial and industrial associations in that country and France.

The House must long ago have been prepared for the following conclusions, which close the Royal Commission’s Report on the Law relating to Letters Patent for Inventions:—

“That in all Patents hereafter to be granted a proviso shall
be inserted to the effect that the Crown shall have the power
to use any invention therein patented without previous licence
or consent of the patentee, subject to payment of a sum to be
fixed by the Treasury.

“While, in the judgment of the Commissioners, the changes above
suggested will do something to mitigate the inconveniences
now generally complained of by the public as incident to the
working of the Patent-Law, it is their opinion that these
inconveniences cannot be wholly removed. They are, in their
belief, inherent in the nature of a Patent-Law, and must be
considered as the price which the public consents to pay for
the existence of such a law.”

This is signed by Lord Stanley, Lord Overstone, Sir W. Erle, Lord Hatherley, Lord Cairns, H. Waddington, W. R. Grove, W. E. Forster, Wm. Fairbairn.

The public understood this to mean that the Commission were by no means satisfied that there should be any longer any Patent-Law at all. The _Journal of Jurisprudence_ gives it this interpretation.

But I can adduce a higher and more authoritative exposition with regard to the views of at least the noble Lord the Chairman of the Commission. When the question was put as to legislation in conformity with the Report, Lord Stanley told this House on June 10, 1865:—

“The House ought first to have an opportunity fairly and
deliberately of deciding upon that larger question which had
not been submitted to the Patent-Law Commission—viz., whether
it was expedient that Patents for invention should continue to
be a part of the law.”

We all know there is in general society, and even among politicians and men in business, an acquiescence almost amounting to approval of Patents in the abstract. Its existence I attribute to unacquaintance with actualities. I acknowledge that when the more able advocates of the system state their reasons, these look conclusive enough, and would be so if there were but one side of the case. What we, their opponents, claim is that our objections be met. This, I apprehend, cannot be done without, at least, leaving so much inevitable evil confessed as must turn the scale. Some of these arguments that we hear are futile and far-fetched enough to deserve to be repeated. Admitting obstructiveness, a Chancery-lane writer pleads thus:—

“This very prohibition causes others to exert themselves to
invent different means by which the same or a better result
may be obtained than by the invention which they are prevented
from using, except by payment, and the result is competition,
in the highest degree beneficial to trade, and an unceasing
advancement and striving.”

Really no better is the reasoning of an official witness, who told the Commission:—

“Three-fourths of the Patents, Inventions of
Englishmen.—Three-fourths of the applications for Patents,
or thereabouts, are for the inventions of Englishmen; the
remaining one-fourth are for the inventions of foreigners, for
the most part Frenchmen and Americans. The country in which
inventions are of the highest value will draw inventions to
it from all others, and so long as any one country protects
inventions by Patent, so long must all countries protect. Were
England to abolish protection of inventions, inventors would
carry their inventions to other countries. Switzerland does not
protect, and consequently the Swiss take their inventions to
other countries.”

Why? What harm though the British inventor should go abroad to patent or even to work his invention? He must specify it in the country he goes to; and cannot, will not, our artisans at once avail themselves, and revel in the free use, of what he there records? Call our nation’s not rewarding him a piece of doubtful policy, or want of generosity; but banish the notion that our trade will suffer. It will gain.

But there are defenders of very different calibre: Mr. MacCulloch,[3] Sir David Brewster, Mr. John Stuart Mill. It is meet I should inform the House what are their arguments. I find them succinctly stated and well put in Mr. Mill’s “Political Economy.” I will read the whole of that gentleman’s observations, interlacing, for brevity’s sake, very short and unargumentative dissents, if not replies:—

“The condemnation of monopolies ought not to extend to Patents,
by which the originator—”

Does Mr. Mill know that many an invention is patented by some person who is not the originator, but only the first promulgator in Britain; still more often, who is not the only originator?

“of an improved process—”

I have already shown that the law, rightly read, can hardly be said to sanction the patenting of a “process.”

“is allowed to enjoy, for a limited period, the exclusive
privilege of using his own improvement.”

Which means, the privilege of debarring all other people—some of whom may, after him, or at the same time as he, or even before him, have invented it—from doing what he is, and they also should be, allowed to do.

“This is not making the commodity dear for his benefit, but
merely postponing—”

For his benefit, and still more frequently and surely for the benefit of a multitude of other individuals, who have less claim, or no claim at all.

“a part of the increased cheapness, which the public owe to the
inventor—”

But not to him only, for he invents often along with others, and always in consequence of knowledge which he derives from the common store, and which he ought, as its participant, to let others share, if doing so does himself no harm.

“in order to compensate and reward him for the service.”

The real service, if it be “service,” is the communicating his knowledge.

“That he ought to be both compensated and rewarded for it, will
not be denied;”

But it does not follow, surely, even in Mr. Mill’s logic, that he should be invested with monopoly powers, which “raise prices” and “hurt trade,” and cause “general inconvenience.”

“and also, that if all were at once allowed to avail themselves
of his ingenuity, without having shared the labours or the
expenses which he had to incur in bringing his idea into a
practical shape—”

But which, very likely, were trifling, and if heavy, were incurred for his own sake, and may have produced benefits to himself that sufficiently compensated all.

“either such expenses and labours would be undergone by nobody—”

Which is a wild assumption.

“except very opulent and very public-spirited persons.”

The former are numerous; the latter ought to be; and the service is one the nation may well expect of them. Why should not there be innumerable Lord Rosses, Sir Francis Crossleys, Sir David Baxters, and Sir William Browns, promoting beneficent commerce by their generosity; and why should not manufacturers systematically combine as an association to procure through science and experiment every possible improvement?

“Or the State must put a value on the service rendered by an
inventor, and make him a pecuniary reward.”

And why should we not prefer this alternative?

“This has been done in some instances, and may be done without
inconvenience in cases of very conspicuous public benefit.”

Well: that is a great deal; but why not in cases that are not conspicuous?

“But in general an exclusive privilege of temporary duration is
preferable—”

Now, mark the only reasons adduced:—

“because it leaves nothing to any one’s discretion—”

That is, I suppose, Mr. Mill, to avoid trusting anybody—the danger from doing which is imaginary, or at least avoidable—would let the nation remain subject to proved frightful inconvenience and loss.

“and the greater the usefulness, the greater the reward—”

Which, Mr. Mill rightly thinks, is what ought to be, but it is not and cannot be what happens under Patents; for, on the contrary, rewards depend mainly on the extent of use and the facility of levying royalties.

“and because it is paid by the very persons to whom the service
is rendered, the consumers of the commodity.”

Here Mr. Mill appears to regard, and it is right he should, manufacturers as mere intermediates. Well: can they shift the burden which they, in the first instance exclusively bear, from their own shoulders to those of the consumer? Perhaps they could have done so before the inauguration of Free Trade; but since that time, the thing is impossible, and so will it ever be until the day arrive when either Patents shall apply to all countries, and in all countries exactly the same royalties shall be charged for their use, or else they are abolished.

“So decisive, indeed, are these considerations, that if the
system of Patents were abandoned for that of rewards by the
State, the best shape which these could assume would be that of
a small temporary tax imposed for the inventor’s benefit—”

Would he in general get it? And, let me ask, how collected—how distributed?

“on all persons making use of the invention.”

A thing impossible, however, even for conspicuous inventions; and to which there is the further fatal objection that there must be none but such recognised, which might be unfairness, as it certainly would be partiality. If, as indicated, a tax on all users and consumers, will not grants from the Exchequer be in the main fair enough as to incidence?

“To this, however, or to any other system which would vest in
the State—”

Why the State? Why not let inventors decide?

“the power of deciding whether an inventor should derive any
pecuniary advantage for the public benefit which he confers,
the objections are evidently [!] stronger and more fundamental
than the strongest which can possibly be urged against Patents.
It is generally admitted that the present Patent-Laws need much
improvement.”

It is not admitted that they can be made satisfactory, do what we will; and I contend that no extent of mere improvement can overcome the objectionableness of the restraints and burdens inseparable from the system.

“But in this case, as well as in the closely analogous one of
Copyright, it would be a gross immorality in the law to set
everybody free”—

Why, everybody is naturally free, and would continue free if the law did not step in and cruelly take their freedom away, doing which is the real immorality.

“to use a person’s work”—

A fallacy—to use, it may be, his thoughts, which, as soon as they are communicated, are no longer his only—and not at all to use his “work” in any proper sense.

“without his consent, and without giving him an equivalent.”

As if consent were needed to use one’s knowledge, and as if there could or should be any equivalent.

“I have seen with real alarm several recent attempts, in
quarters carrying some authority, to impugn the principle of
Patents altogether; attempts which, if practically successful,
would enthrone free stealing under the prostituted name of free
trade, and make the men of brains, still more than at present,
the needy retainers and dependents of the men of money-bags.”

As to “free stealing,” hear what the greatest political economist of France thinks—

“C’est dans une mesure la même question que le free trade.”

As to the “money-bags,” Mr. Mill plainly is not aware that the dependence he deprecates is the invariable, almost the inevitable, consequence of a Patent system.

I am extremely sorry to differ on a question of political economy from Mr. Mill. But with all due respect I submit that he has not, when writing the passage which has now been given _in extenso_, realised what a Patent is in practice. It is the price at which the State buys a specification. The purchase is a compulsory one, with this peculiarity, that whereas the inventor may or may not offer to sell—for he is left at perfect liberty, as in a free country he ought to be, whether to patent and reveal (sell) or not—yet if he do offer, it is the State, the maker of the law, which, through the Sovereign, voluntarily puts itself under compulsion to accept the offer, and—with a defiant violation which the frequency of the deed in my view makes flagrant of sound principle—pays not out of public revenues or any funds over which it has legitimate control, but out of the means of private individuals, reached and extracted either in the form of exceptional profits on goods the monopolist makes, or by his levying of a tax called royalties on any of his fellow-subjects whom he may of grace, if they comply with his demands, associate with himself as sharers of the monopoly.

Such opponents’ impulses are excellent, but their plan is incompatible with actual pre-existent interests. They omit to take into full account the conditions of the everyday world which the statesman has to do with, and might not unprofitably call to mind a story or parable of juvenile days wherein certain wise men were represented as, after due counsel, placing a favourite bird within high and close hedges in order to gratify their tastes and enjoy melodious notes all the year round. The conditions of winged existence had not been taken into account; theory and sentiment could not be reduced to practice. Favouritism, constraint, and isolation, being contrary to nature, failed. The nightingale loved, needed, sought, and found freedom. To recall another book of youthful days. Think of Robinson Crusoe, and the many new inventions his peculiar position required and elicited. Let me suppose the neighbouring islanders saw for the first time in his hands a cocoa-nut turned into a cup, in his hut potatoes roasting in the fire, in his garden guano used as manure. What would they have thought of Christianity and civilization, if he, anticipating the pretensions of modern inventors, had alleged, on the ground of first use, exclusive property in these manufactures, processes, and applications, and had debarred the imitation for fourteen years? The unsophisticated savages would have said, “We understand and allow your claims to possess what you yourself make, but we do not understand, and we dare not allow, your claim to possess what we make ourselves. You are welcome to learn what we shall learn, and to do whatever you see us do. We cannot sell for money the odours that rise from the fruits that sustain our life; should we forbid to pick up and plant their seeds that we throw away? Should we grudge the runnings over from the brimming cup of knowledge which heaven puts into the hand, and the froth at the top which the wind blows away?” Heathens are pleased to even work at what is good for all according to opportunity. The fact is, the right of inventors is too shadowy to have any recognisable existence where there is not a submissive society to vend to or trample on, and a complaisant state to compel their submission.

If he were a member this night present with us, I would appeal to Mr. Mill as a philosopher. Seeing that the world is so framed that whereas acquisitions of material property or things cannot be possessed in common without the share or enjoyment of each person being lessened or lost, it is universally possible that any number of persons, however many, can possess and use, without any diminution of individual enjoyment, knowledge or ideas in common, do not wisdom and humanity justly interpret this as an indication that to interfere is to oppose the order of nature?

Let me appeal to him as a moralist. Seeing that to so interfere with the communication and enjoyment of knowledge or ideas by limiting the power and right to apply inventions to use is to withhold that whereby one man, without loss to himself, may benefit his fellows, do not ethics favour the philanthropic course which accords with the course that Nature indicates?

I appeal to Mr. Mill as a political economist. Seeing that the order of nature and the promptings of philanthropy are favourable to the communication of inventions and their free use, is it the part of a State to provide for the gratification of the selfish principle in man by legislation framed to endorse, and facilitate, and almost to necessitate it?

I appeal to Mr. Mill as a statesman, and ask, Is it consistent with enlightened policy to place manufacturers in such a position, that they are constantly tempted to conceal improvements they are using, from fear to discover that they are infringing? Does he know so little of mankind, that he expects them, the poorest as well as the richest, to employ (and this would be requisite) suitable agents to search whether any improvement they mean to adopt is already the subject of a Patent that renders its adoption illegal, and also to institute inquiries as to who, and where, in the wide world, is the holder of the Patent or Patents, whom in that case he must first negotiate with and sue for a licence? Does Mr. Mill think a manufacturer’s time is so free from absorbing occupations that he can attend to the daily transactions of the Patent-office, so as to inquire whether such and such a mysterious application is an unintended, it may be, but in result an effectual, ousting him from use of a process that he is about to introduce or has already in operation? Yet these are the superhuman efforts and gifts which compliance with, and subjection to, any Patent system presupposes and requires.

Is it nothing in the eyes of this legislator, whose absence from this House is so generally regretted, that by means of the Patent-Laws there are thrown loose on men in trade thousands of individuals whose interests run counter to those of society, men trusted with letters of marque to prey, not on foreign commerce, but on British? Is it a small matter, that, having surrendered the principle of discriminating duties leviable by the State for national purposes, we continue to expose those from whom this protection is withdrawn to an ever-increasing burden of taxes, in favour of individuals, levied without State control or any regard to equality? Does Mr. Mill conceive it is short of recklessness to continue to stimulate invention by rewards which often turn out ruinous to those whom they are meant to favour, and which bear not the smallest proportion to the cleverness, the beneficial results, the cost of elaborating, the merits or the wants of the inventor, and scarcely to the originality and legitimacy of the claim of whoever is the applicant? Is he aware that the advantage reaped by inventors, sometimes very large, is obtained at so frightful a cost that, as some persons believe, for every pound which actually reaches him the country loses to the extent of one hundred pounds? Surely we are asked to obtain our stimulus by a folly (only his was voluntary, and not habitual) like that of the fabulous sailor who, for the sake of a tumbler of rum, swallowed the bucketful of salt water amid which the dangerous stimulant had by accident fallen. I honour the candour of Mr. Mill, and I hope yet to have his concurrence in my views. He cannot have reflected on and realised actual facts. One illustration more, and this of another difficulty which I commend to his attention and that of any honourable gentlemen who have been carried away along with him, I give by narrating an incident in my late canvass.

A deputation of the trades of Scotland did the candidates the honour of submitting to us a very judicious list of questions. One of these concerned the Patent-Law. They asked, would I support a motion for reducing the cost of Patents? I answered I would, because I think the cost too high for the working man; but I added that I would rather see Patents swept away. One of the deputation properly animadverted on the hardship this might inflict, and he instanced the case of his brother, who had invented an improved apparatus for use on board ship. I rejoined that I accepted the case as sufficient to confirm the conviction that Patents are on the whole not good, but bad, for working men or any men. My reasoning was substantially this: In order to reap his reward, the inventor is required or expected to visit every ship or shipowner at the port, and endeavour to get the apparatus understood, believed in, and adopted; and not at Leith only—at every Scotch port, every English port, and every Irish port. But not to let British shipowners suffer by the inequality of paying, while rivals use without paying, and at the same time to promote his own interests, the inventor must take out Patents in France, Belgium, Holland, and all maritime countries and their colonies. After he obtains these many Patents he has to sell his apparatus at all the ports of those countries. The first thing obvious is, that to do a tithe of that work the inventor must relinquish his own business, which is the solid beef in the mouth of the dog in the fable, for the delusive shadow in the water. But never mind that in the meantime: after the business is relinquished, there remains the insuperable difficulty of conducting a business so much beyond the power of man as that I have sketched. He might of course attempt to overcome that by appointing agents to manufacture abroad or act abroad for him; but where is the capital to hazard on so great an enterprise? If he were as rich as a Rothschild, has he the gift of tongues to enable him to correspond in all languages? And if he had, how can all this work, requiring simultaneity, be done at once? The end, of course, must be, at the very best—the Patents, if, indeed, actually taken, are sold for a trifle, and the persons who secure them, which they only do if valuable, in their turn sell, for a trifle too; so that the lucky inventor gets but little out of the tens of thousands or hundreds of thousands of pounds which the public are made to bear the burden of. _Ex uno disce omnes._

I am unwilling to leave this part of my theme without adverting to a point which deserves some attention—I mean the tendency the Patent system has to lower the tone of men of science. In a quotation from Lord Granville it is seen to be more than insinuated that the sacred claims of truth are in danger of being compromised by the evidence men of science are asked and tempted to give in courts of law. But the evil of Patents begins in the laboratory and the closet; for there is felt the impulse to conceal anything new and likely to be useful, in order to patent; so that a conflict is generated between, on the one hand, the theory of the academic chair which supposes in the very name “university” universalism, community of knowledge, and on the other, law-created personal interests, whose nature it is to stifle the man of science’s inherent desire to spread knowledge and exchange thoughts in order to benefit mankind.

But Mr. Mill presents an alternative. I, for one, have no objection to see it considered. I have long advocated State rewards; they cannot be condemned on principle; they are sanctioned by another philosopher. When I say that I had the honour long ago to receive the following from M. Chevalier, I am sure of this House’s attention.

_Extract of a Letter from M. Michel Chevalier to Mr. Macfie._