Chapter IV: Front Matter (4)

“The Patent system, as constituted in all countries where
it is established, is a monopoly that outrages liberty and
industry. It has consequences that are disastrous, seeing
there are cases where it may stop trade for exportation and
even for home consumption, because it places manufacturers who
work in a country where Patents are established at a great
disadvantage in competing with others who live in States,
such as Switzerland, where Patents are interdicted by law.
Practice, experience, which is the supreme authority in the
world, shows daily, in France particularly, that the system is
a scourge to industry. What might be substituted is a system of
recompenses, either national or European, as you have proposed,
to be awarded when practical use has pronounced on the merit
of each invention, and when the originality shall admit of
being established. All the friends of industrial and social
progress ought to unite their efforts to liberate industry from
the shackles that have been bequeathed from the past. That of
Patents is one of those which there will be most urgency to get
rid of.”

The Continental Association for Promoting the Progress of Social Sciences favours such rewards. Allow me to quote from a Report of M. Tilliere, Avocât of Brussels, which was adopted by that body:—

“It is proper to introduce, in respect to industrial
inventions, the principle of _expropriation_ [or acquisition
for behoof of the public], with a view to general benefit,
in order to reconcile the interests of industry and the
requirements of free trade (_libre échange_) with the interests
of the inventor.

“It is desirable, for the satisfaction of the same interests,
to establish between the different countries by means of
stipulations with reference to Patents in International
Treaties, uniformity of system, and, pursuant thereto, to
provide a depôt where, without the necessity to patent in every
particular country, specifications might be lodged that shall
be recognised and published in all.”

The House will observe that in connexion with the principle of State rewards, or, what is nearly allied to it, of expropriation, the Association commended another principle, that of international arrangements as to inventions. On the occasion when the report I quote from was adopted, another eminent French economist, Professor Wolowski, spoke as follows:—

“The free competition which ought to exist between peoples
requires that Patents should be everywhere ruled by uniform
laws. Intellectual property must everywhere have limits within
which there shall be exchange, in order that its products may
everywhere circulate under the same conditions. International
legislation with regard to Patents is an object to be
earnestly pursued. It responds to the demands of free-trade,
satisfies the needs of liberty of manufacture, and provides a
compensation for a shortened term of Patent-right by extension
of area.”

But I come nearer home, and am happy to be able to quote concurrence in the idea of national rewards on the part of one of our great staple manufacturers, the sugar refiners. The refiners of Scotland many years ago petitioned Parliament in the following terms:—

“That, in the opinion of the petitioners, it is highly
desirable that your honourable House should devise some means
whereby discoverers of valuable inventions (to whom alone
Patents should be granted) might be rewarded by the State, and
trade be relieved from the restrictive operation and expense of
Patents altogether.”

Tending in favour of rewards rather than Patents is the following evidence, given before the Royal Commission by Sir William Armstrong:—

“How would you give these rewards in the absence of a
Patent-Law?—I am not prepared to say that. If the country would
expend in direct rewards a tithe of what is paid for Patent
licences and expenses, there would be ample provision for the
purpose. As a matter of opinion, I believe that if you let
the whole thing alone, the position which a man attains, the
introduction and the _prestige_, and the natural advantages
which result from a successful invention and from the
reputation which he gains as a clever and able man, will almost
always bring with them a sufficient reward.”

A successful inventor writes me:—

“I should be very glad to see a good round sum set apart by
Government for the purpose of being awarded to real inventors
by competent and impartial authority. Then the poor inventor
might have some chance.”

It is not out of place to inform the House that so far back as the earliest years of the Patent system a precedent can be adduced. In 1625, Sir F. Crane received a grant of £2,000 a-year for introducing a tapestry manufacture. There are several other precedents for similar grants of public money.

Of course, to reward is not to purchase. We do not buy any man’s invention or secret. But if he thinks proper, as a good subject, to reveal that secret, we mean he shall have a substantial mark of favour. Something like this was, no doubt, the original intention of Patents; only the favour took the form of monopoly for introducing and working a manufacture, whereas we prefer to pay, as soon as the value and benefits of the invention made can be guessed at, such a sum of money as will be neither, on the one hand, from its magnitude made oppressive to the people, nor, on the other, from insignificance or paltry conditions unworthy of a noble mind, whatever the rank, to accept. What is given will be proportioned to merit or service, and will be, in the fullest sense, a _honorarium_, a complimentary gift, a mark of national approbation and gratitude. We all know, though few of us think of it as a striking proof how Patents have declined in public esteem, that among us to be a patentee is by no means usually reckoned an honourable distinction. It is the same in France.

“The title of patentee is falling into greater disrepute every
day from the abuse which is made of it.”

This prejudice we must remove, and we can do it. I believe in the possibility and advisableness of presenting, as a substitute for Patents, a system of rewards which will reconcile the honour and interests of men of science and those of practical men, the interests of the master and those of his workmen, the interests of the many and those of the few. Such a system, while entirely emancipating commerce and industry, must, as its condition, deal out its rewards more equitably than the Patent system does, and with more regard to the just claims of inventors. It must distribute these without the tedious delays now suffered from. Its rewards must, in contradistinction to present experience be sure, easily attainable, and suitable for poor as well as rich. I respectfully submit the following scheme as one that at least may form a basis for some system that will obtain general acceptance.

_New System of Rewarding Inventors and Promoting the Publication of Inventions._

1. The Patent-office to be turned into an office for recording inventions.

2. (Forms for specifications to be furnished gratuitously.)

All specifications to contain a certificate that the inventions promise to be useful, and are believed to be new, from three persons familiar with the trade chiefly concerned; one of whom, if the inventor is an _employé_, to be his employer.

3. These specifications to be registered.

4. Any time after an invention has been tried and proved practically useful, a fact to be duly certified, the inventor to be allowed to claim that the invention shall be reported on.

5. A Chief Commissioner for Inventions shall appoint one or more examiners for this purpose, whose duty it shall be (after, if needful, first visiting the scene of operations, and conferring with practical manufacturers) to recommend, if they think it worthy, classification for a reward, prize, or certificate of merit.

6. Once a year the head of the Invention-office, with the help of an Adjudicatory Committee, who shall form an Invention Commission, shall classify the several inventions that have been in the previous twelve months certified as having been for the first time brought into beneficial use.

7. In his classification the first rank shall entitle to a

reward of £10,000.
2nd 5,000.
3rd 1,000.
4th 500.
5th 100.
6th 50.
7th, Gold Medal, or value in money.
8th, Silver Medal ”
9th, Bronze Medal ”
10th, Certificate of Merit.

8. Parliament shall annually place at the disposal of the Invention Commission £200,000, from which shall be defrayed the expenses of the staff, and fees to “reporters,” as well as of the several publications showing the progress of Invention that shall (as now, but on an improved system) be issued; the balance to be distributed in rewards and prizes, with an understanding, however, that the amount must be reduced if the total awards of the Commission shall exceed the money at its disposal.

9. In appointing Commissioners Government shall consult the various trading interests of the nation in order to select the most acceptable persons. Inventors collectively might have a veto or the initiative.

10. The prizes may be divided between the originator of the idea of any invention and the successful introducer into practical use.

11. Where there are rival claimants, the expense of deciding priority in respect of time and merit to be borne by themselves.

12. The Commission to be at liberty to correspond with foreign nations, and act in concert with any that shall establish instead of Patents a system of rewards.

13. In cases in which pre-eminent merit, especially if there has been a course of costly experiments antecedent, appears to entitle to a reward greater than the largest in the schedule, Government may propose to Parliament special augmentations. I do not presume to recommend Royal decorations and titles, though such honours would be much valued.

A writer on Patents has judiciously said—

“It would seem very desirable that a system of registration for
all improvements or ideas which an inventor may think of minor
importance should be instituted, whereby any one could, at a
moderate cost to defray expenses, deposit at the Patent-office,
a description of any new idea, improvement, or invention.”

My scheme is calculated to answer this good end.

Here I may fitly call attention to an interesting and instructive analysis which Mr. Woodcroft submitted to the Commission. He showed—

RESULTS of the EXAMINATION of the first hundred inventions, for
which applications for Patents were made in each of the years
1855, 1858, and 1862 (abridged).

1855.

“Of the first hundred inventions for which applications for
Patents were made in the year 1855, none are apparently of
considerable value.

“Four of the hundred inventions appear to be of some, but not
of great value, and Patents were granted for all of them.

“The remaining ninety-six of the hundred inventions seem to be
of little or no value; and Patents were granted for sixty-six
of them.”

1858.

“Of the first hundred inventions for which applications for
Patents were made in the year 1858, none are apparently of
considerable value.

“Three of the hundred inventions appear to be of some, but not
of much value.

“The remaining ninety-seven of the hundred inventions seem
to be of little or no value; and Patents were granted for
sixty-two of them.”

1862.

“Of the first hundred inventions for which applications for
Patents were made in the year 1862, one is apparently of
considerable value.

“Of the same hundred inventions one appeared to be of some, but
not of great value.

“The remaining ninety-eight of the hundred inventions seem to
be of little or no value. Patents were granted for fifty-nine
of them.”

I conceive, on the basis of this evidence, that the estimate I am now about to give represents, relatively, but I will not venture to say absolutely, a fair view of probable claims. It also affords some guide for anticipating what, coming from the Exchequer, would be a reasonable total vote for rewards. Such a sum, or even a larger, Parliament should willingly grant. It can be proved to be true national economy. The nation, as individuals, is paying vastly more now. For that burden Parliament, by not removing Patents, is alone responsible.

1 at £10,000
3 at 5,000 15,000
12 at 1,000 12,000
84 at 500 42,000
250 at 100 25,000
400 at 50 20,000
Medals and Certificates
of Honour and Merit 1,000
--- --------
750 £125,000

I am aware that inventors have hitherto drawn such large sums in some cases (in many or most cases claiming more than they got), that they may at first hardly be pleased with my proposal. But they should remember that the sums set down are those derivable from one country alone—one of the between forty or fifty countries which give Patents now. The revenues from these other countries, therefore, are to be added. They will also consider that it is optional whether or not they apply for rewards. Let them work in secret, if they will and can. But if they resolutely contend for Patents, let them know the time for abolishing these is at hand; and abolition may come, if they resist it, without even this substitute.

I have endeavoured to show what I believe to be true—that Parliament, when it, by the Act 21, Jas., 3, tolerated monopolies for inventions, did not sanction any system at all like that into which Patents have developed, or degenerated; that, in defiance of the Act, Patents are granted so as to create the evils which Parliament expressly sought to shield the nation from; that recent legislation has aggravated the great evils that pre-existed; that a Commission has satisfied itself that no radical or sufficient remedy can be applied; that the arguments of the defenders of Patent monopolies are untenable; that the most eminent statesmen, lawyers, engineers, manufacturers, and philosophers plead for abolition; that the State is at liberty, and has the power, to devise, if it wills, a better method of dealing with inventions, but that such a method must be one that leaves manufacturers free, and able to compete with continental rivals by at once adopting, without any burden of royalties, every most recent improvement.

To conclude: this great and vital question cannot longer be deferred. It must be taken up, and that early, by what is expected to be a working Parliament—a Parliament, too, which for the first time can claim to represent labour and operative industry. Parliament has legislated in order to the preservation of salmon, and required the removal of obstacles on the coasts and in the rivers. Here are far worse obstacles, affecting not a luxury, but all our necessaries of existence, and every means of earning a livelihood.

Again: are we not asked to remove light-dues at the sea and tolls on the land? But what are these unimportant, sparse, and withal equitable taxes, compared with the close-recurring stoppage and the indefinite and heavy demands for questionable “service” which Patents constitute? Yet, again: By arrangement with France we recently abolished the time-sanctioned petty exemptions of free-men; but here we are continuing to levy more burdensome private taxes, with exemptions in favour of foreigners! It is they, indeed, whom the provisions of the Patent-Law strangely serve. Foreign countries are not so liberal to British subjects as we are to theirs;—why should they? The number of Patents we grant in a year to foreigners has increased within a short period tenfold—to about 880, or about twelve times the whole number that Prussia grants to her own subjects and all the world besides. Well may Sir William Armstrong remark in his evidence:—

“Unless you wish to benefit the foreigner, unless that be the
sole object, as a matter of policy, I do not see what the
motive to apply the Patent system is.”

The same witness said also:—

“Is it the fact that Patents are taken out in this country
for processes which are in operation abroad, but which have
not been previously introduced into this country?—Certainly.
A process in actual operation abroad, which has not been
published in this country, can be made the subject of a Patent.

“Is it practically the case that processes which are carried on
abroad are brought into this country by parties who patent them
here?—Yes.

“A great number every week?—Yes, constantly.”

Any one who has followed me in the statements I have presented will see that, while we have been retrograding and making our system of monopoly wider and worse, the Continent, to which a Patent system was first introduced just three-quarters of a century ago, is ahead of us in respect of the prudence with which exclusive privileges are granted and administered. There, as a rule tolerably general, Patents of importation are treated less liberally than those granted to inventors. The early and almost continuous working of the Patent within the kingdom is required; it lapses when expiry abroad exposes to foreign competition; expropriation is provided for; there is more scrutiny; medical appliances and food are excluded, &c.

But this is merely one, and a comparatively unimportant, fault of the system. There are many faults, as we have seen, much more serious, and which the Commission deem irremovable. I must, therefore, protest against injury done by the Patent system to our manufacturers and artisans, and through them to the nation.

These interests, the interests of us all, cannot with impunity be subjected longer to the hardships that I have endeavoured to expose. Times are changed. British and Irish manufacturing pre-eminence is passing away, not indeed by its actual retrogression, but by a simultaneous and relatively more rapid progression of rivals on the Continent, who, in not a few cases, are competing successfully, even in our home markets, in those articles of commerce and manufacture in which but lately we, perhaps conceitedly, supposed we had outstripped, without a chance of being overtaken, all conceivable rivals. The motion, of which notice has been given, is:—

“That, in the opinion of this House, the time has arrived when
the interests of trade and commerce, and the progress of the
arts and sciences, in this country would be promoted by the
abolition of Patents for inventions.”

Unless, indeed, Government and the House prefer in the first instance fresh inquiries through a Committee or Royal Commission, in behalf of which course it is fair to allege the circumstance that artisans and operatives were not represented among the witnesses in former investigations, I submit that this motion ought to be at once adopted. Such action on our part will commend, and, in a sense, inaugurate, a principle which the nations of the world, who copied our present system, will not be slow to appreciate and embrace. Restoration of that effete system to its earlier moderate dimensions—rectification, however thorough, of the wrongs it involves towards inventors, will not suffice, and need not be attempted. The time has come, not for palliatives nor remedies, but for removal out of the way.

[2] Another illustration naively presented us, even by Mr. Hindmarch, of the characteristic logic and boldness of the Patent interest, which may surprise “inventors’ friends” accustomed to rely that our system of Patents is legal and constitutional, will be found in the Appendix.

[3] What would Adam Smith think of his commentator?

SPEECH OF SIR R. PALMER, K.B., M.P.

Sir ROUNDELL PALMER, in seconding the motion, said he had long felt convinced that this subject was one of great and growing importance, which it would be necessary at an early period to bring before the attention of the House. He rejoiced that it had been undertaken by a practical man like the honourable member for Leith, who could speak upon it, not under the influence of any of the partial views which possibly those who looked at it from a lawyer’s point of view might be thought by some to entertain, whether they were in favour of or against Patents. He was glad to find that practical men like his honourable friend had arrived at conclusions which, in their broad principles, were substantially the same as those to which many members of the legal profession, who had had a good deal of opportunity of observing that matter, had in common with himself, come. He was bound to state that he thought the time had arrived rather for opening than for concluding the discussion of that subject; and, therefore, he hoped he should not be thought to do anything inconsistent with the duty he had undertaken in seconding his honourable friend’s motion, when he said at once that, for his own part, he was inclined to go to the root of the matter and abolish Patents altogether, and not attempt to substitute even such a system—although it might probably be preferable in many respects to the present system—of rewards, as his honourable friend had mentioned. Of course those who derived benefit—whether they were the public or were private individuals—from the discoveries that might be made if Patents ceased to exist, might always take into consideration the value they received, and pay for that benefit, as he believed the Government now did, although it was not bound by Patents, with respect to improvements which were useful to the public service. But that, he conceived, would be a very different thing from an organised system of rewards at all analogous to the present system of Patents. He might mention, in passing, a third plan, which had found very able and authoritative advocates, and which he should also greatly prefer to the present system, although he thought total abolition would be better than that likewise. He referred to the plan of putting an end to the notion that every person who invented anything had a right to a Patent, and recurring to what, he imagined, was originally the principle intended—namely, the giving of Patents as a matter of grace and favour in well-selected and discriminated cases, in the exercise of a discretion by an authority entrusted with that discretion. But, as he had already said, he confessed that he himself was not for half measures in that matter. He thought they had a right, as the motion proposed, to say that at the period of progress in the history of the arts and of trade in this country at which they had arrived, they could do much better without these props. He called them props because he thought they were meant to be so, but he believed that at present they were nothing but obstructions and hindrances to trade and the arts. Let him, in the first place, notice the principle on which the Patent-Law was generally supported. Some persons imagined that there was a sort of either moral or natural right in inventors to some such protection as was given by Patents, and the principle was sometimes expressed in this way—that a man had a right to the fruit of his brain. Now, he held that invention and discovery were essentially unlike Copyright. Copyright applied to a creation: a man wrote a book; he thus brought into existence something which had no existence in the nature of things before. The rest of the world were not in the race with him to write that particular book. But in the case of inventions and discoveries, the facts with which they were concerned lay in Nature itself, and all mankind who were engaged in pursuits which gave them an interest in the investigation for practical purposes of the laws of Nature, had an equal right of access to the knowledge of those laws and might be equally in the track for obtaining it. All who were engaged in particular arts and manufactures were actually upon the track which led to the discovery of the useful application of those laws; and the knowledge of them was the common stock and property of all mankind who were equally in pursuit of it. He could not allow that the man who was first in the race of discovery could claim for fourteen years, or any other term, an exclusive property in a portion of the common stock of knowledge which was accessible to all who used the proper means of discovering it. It could not be said that on any considerations except those of public advantage and expediency the man who made the first discovery of a law of nature, or the right mode of applying it had an exclusive right to apply that discovery for a certain period. It was said, however, that Patents were useful to the public, either as stimulating invention, or as insuring the publication of useful discoveries; and he did not venture to say that the time might not have been when they answered both of those purposes. Bounties and premiums might be adapted to a rude state of the arts, and an early stage in the progress of commerce, but when a nation had reached so high a degree of progress in all ingenious arts and discoveries and in trade and commerce as we had, he thought that in this department, as well as in others, the system of bounties and premiums was much more likely to be mischievous than useful. But of course one could not demonstrate that point by resting merely on an abstract proposition, and therefore he would ask the House to look at two or three things which it seemed to him would put the matter in a strong practical light. Patents might be divided into those which might be popularly called meritorious, and those which were not meritorious. The former class were certainly not one in a hundred of the total number of Patents, and the latter class were very numerous in every year. How, then, did the system work as regarded meritorious Patents? He supposed it would be admitted that among the most meritorious discoveries of recent times were the steam engine, the electric telegraph, and the screw propeller for ships. These cases furnished excellent illustrations of the way in which the Patent system worked. Take the electric telegraph. According to the evidence on the subject it was not possible, even for those who best understood the matter, to say who was entitled to the merit of that invention, so gradual and imperceptible was the natural growth and progress of knowledge and discovery in reference to it. But about 400 or 500 Patents had been taken out as marking different steps in the investigation of that subject. As to the screw propeller, he had seen a book which represented the collected Patents of one company as being 90 or 100; and he understood that the case was very much the same in regard to the steam engine. They were not dealing, in the case of the most meritorious inventions, with a true discovery by a single inventor, but with an important branch of practical knowledge at which many men were working at the same time, and in regard to which each step attained indicated the next step that was to follow, and many persons together were on the road. Well, but if they were on the road, the public would get the benefit of the discovery, and the question was whether, by enabling each person on the road to stop up the road at his particular point, they were not really retarding the progress of discovery, and throwing difficulties in the way of even the most valuable inventions. There was no one better acquainted with that subject than a friend of his—a gentleman very eminent both in science and in law. He meant Mr. Grove; and those members of the legal profession who had to encounter Mr. Grove in a Patent case knew they had a very difficult task indeed before them. Now, here were the words of Mr. Grove in reference to that subject:—

“Always when a discovery has been made when the public has
reaped the fruits of it, there is no case, and never was a
case, either in the history of pure science or in the history
of practical discovery, where it is not alleged, ‘If you look
at such a book and such another book, you will find that so
and so has been done, and you will find that it has been
anticipated.’ That is partly true and partly false. There are
in all such cases approximate anticipations. The difference
is, that one man gets at the points, hits the real thing which
will do it, and the reason why it will; whereas other people,
although they may have got the thing, have not acquired an
accurate knowledge which will enable them with certainty to
produce it.”

That showed the House that the race was often so close that even the man who had hit the thing might be shut out by somebody else who did it a trifle better. Nothing could be more true than that. Would the House allow him to quote the example of a very important Patent, which he thought would make the matter clear, and indicate how much they might lose by a system of that description. For a very long time the distillation of oils from shale and coal had been a matter of the common knowledge—aye, and of the common practice, of mankind. Early in the present, or towards the end of the last century, it was practised by means precisely similar in all points to those which the present patentees used in this country. But it was not known commercially that there was such a thing as paraffin, nor was it known commercially how to distil it. The oil was, indeed, obtained in a rough way, and without that nicety of discrimination which afterwards resulted from scientific knowledge of the article itself. All chemists knew that in order to distil these oils it was necessary to keep the temperature as low as possible. This was the state of knowledge when a great German chemist discovered that by operating on wood, tar, and other substances, he could produce paraffin in small quantities. He also said it could be got from coals in precisely the same way as was subsequently done by patentees in this country. But still the German chemist’s experiments were of a scientific and not of a commercial character. He neither produced it commercially nor did he hit upon the material from which it could be commercially produced. The same oil could be produced from shale. Only the other day there was discovered in Scotland a new kind of mineral, as to which the scientific world were at variance whether it was coal or shale. Patents had been already taken out for distilling oil from shale, and, therefore, if the newly-discovered substance were shale, oil could not be obtained from it without an infringement of those Patents. But a Patent was taken out by a gentleman who stated that his object was to use bituminous coals for the purpose of distilling paraffin. In point of fact, he hit upon a mineral which was _in ambiguo_, whether it was coal or shale, but which the authorities ultimately pronounced to be coal. From this substance the oil could be produced in large quantities. This gentleman took out his Patent, notwithstanding all the previous knowledge on the subject, and notwithstanding the fact to which the learned judge who decided the case in one of its branches referred in the following terms:—

“There is ample evidence that the attention of practical
chemists was previously to the date of Young’s Patent
laboriously directed to discover the proper material and the
proper means of producing these articles in sufficiently large
quantities for common purposes.”

The public literally had in their hands all the necessary elements of knowledge belonging to the subject, and yet the first person who found that this particular coal was more bituminous than others excluded the rest of the world from that manufacture for fourteen years, and of course amassed a large fortune. Substantially, the test in the courts of law was whether a man had made money and brought the manufacture into use. If so, the courts assumed that all previous knowledge was inadequate and useless, and the man who was successful in the manufacture was regarded as the discoverer. Was it not quite clear, however, that the public were so far on the road to this discovery that it would have assuredly been found out and enjoyed by the public at large if the path had not been obstructed by the Patent? He would now mention another case. In the days of our youth mills were much infested with flour flying about in them. All the millers, both in this country and abroad, wanted to get rid of this nuisance, and they were possessed of the scientific principle and the mechanical means by which this desirable object would be accomplished. They tried experiments with fans which created a draught to draw the air from the millstones, and everything depended on the adjustment of a plan to draw just sufficient air and no more. People were actually on the road, and were doing the thing in an imperfect way, but in such a way that if they had continued after the granting of the Patent it would have made them infringers of it. But the man who proposed to do just enough, and no more, was held to be entitled to a Patent, whereupon all the millers in England combined to go into litigation in order to defend themselves. Law-suits of the most enormous and oppressive magnitude resulted simply from the circumstance that a man had been allowed to step in and prevent the millers from carrying on their business in the best way. That they would have found it out was certain. That was certainly the impression on his mind. He thought it was almost certain that the discovery being in the direction of their necessity, and depending on the application of a known principle and of known mechanical means, was a discovery which could not in the course of nature have been long delayed. Having said thus much about those Patents which were meritorious, he would make a few remarks on those which were not. A great number of Patents were simply frivolous, and related to practical nothings, but still nothings affecting trades, and standing like lions in the path to frighten tradespeople, and to expose them to risk, litigation, and annoyance, if they manufactured those articles which they ought to be at liberty to manufacture. Then there were other Patents of a less frivolous nature. They related to some little combination of a kind which really was so plainly in the open path, that everybody ought to be at liberty to use it. These, however, furnished the staple of the great majority of Patents, which, though they did no practical good, operated to a great extent in hindering subsequent inventors in effecting further improvements, because these Patents covered almost the whole ground of everything that could be possibly done. An inventor, unless he paid a tax to the owners of prior useless Patents, was exposed to litigation, and even if he were willing to pay the tax, the owners of the prior useless Patent might refuse to grant him a licence. Thus for the space of fourteen years these useless Patents might not only do no good to the public, but might actually stop the road to all further improvement during that long period. On this subject evidence had been given by three persons of eminence—Mr. Scott Russell, Sir William Armstrong, and Mr. Platt. These gentlemen agreed in saying that the useless Patents to which he had just referred were a practical nuisance, and, if so, it was obvious from their number that they must be a very great nuisance. Mr. Scott Russell said:—

“There are a great many Patents of this kind (practically
useless, but not appearing so on the face of them) taken out
for boilers of steam-engines, and boilers of steam-engines
admit of very enormous variety of shape and proportions,
without damaging their efficiency. The consequence is, that it
is hardly possible at this moment for a man having to scheme
a boiler for a new situation or new circumstances to avoid
putting his foot in so doing into a trap which somebody has
previously set for boilers.... Nearly the whole of the Patents
for the boilers of steam-engines at this moment are of no
practical value to inventors or to the public; but they are
continually getting every man who makes a boiler into a scrape
with some patentee, because almost every conceivable form of
boiler having been previously patented, and bit of a boiler,
one cannot make any sort of boiler without infringing some
man’s patent.”

He said precisely the same thing of screws. Then Mr. Platt, a well-known machine-maker, 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. If a thing is entirely new,
there is a record by getting a description; but what I mean
by a description is this—A very large number of Patents are
now taken out for what is termed a combination of 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. It is only when you come into
court, or after making some compromise rather than go to that
expense, that you ascertain that fact, and very likely they
themselves in many cases do not know the parts that they have
actually claimed. It appears to me that, as to that question
of combination, the granting of Patents for things to do
precisely the same work in the same machine, with the addition,
perhaps, of a chain or a couple of bolts, or the form of the
lever changed, a straight lever made into a compound one; in
matters of that kind it has become a very serious question as
to conducting a large business.”

These were examples which it would be very easy indeed to multiply, and if the objections he had urged against the meritorious Patents were well founded, what could be said in favour of the large proportion of Patents which were thus simply obstructing the trade and commerce of the country? Could any one doubt that in this advanced era of knowledge the public would gain, on the whole, by the abolition of the Patent-Laws? Before he left that part of the subject he wished to mention one very pregnant fact. There was in this country a powerful consumer—he meant the Government—which, with respect to fire-arms, cannon, ships, and things of that sort, would be placed in a very singular position indeed if it were subject to the Patent-Laws. During the time he had the honour of being a law officer of the Crown, an extensive war was, as the House was aware, unfortunately raging, and a large number of Patents had come under his consideration in connexion with so-called improvements in ordnance and ships. It would be seen from the evidence to which his honourable friend had referred that the authorities at the War-office and the Admiralty had patentees swarming like hornets about their ears, and that the public service seemed, in consequence, likely to be obstructed to a very inconvenient extent. The question was then tried whether the Crown was bound by Patents at all, and a decision was obtained to the effect that it was not. But while the Crown was free it should be remembered that the people at large were subject to the law as it stood, and if in the case of the Government the claims of patentees were found to be monstrously inconvenient, it might not be difficult to believe that they operated in the same way in the case of the rest of the world also. He should not enter into the minor details of the improvements which had been recommended by the Commission, but there was another point to which he wished briefly to advert before he sat down; he alluded to the question of the protection of the public against invalid and bad Patents. The whole argument in favour of Patents proceeded on the supposition that the public were likely to be really benefited by some discovery which was worth the price of all the inconvenience and obstruction to which they were exposed under the present system. But if they said that they gained nothing by the Patent, and that they only wanted to be set free, what was the position in which they stood in reference to the cardinal point of protection against bad Patents? Was there really any protection in that respect in the duties which were discharged by the law officers of the Crown? It was impossible for the law officers of the Crown, acting on the mere statement of the patentee, to know with certainty whether a so-called discovery was new or not. They could only examine into the question whether an alleged invention, as described on the face of it, was or was not satisfactory, but they could in no way protect the public against having an old thing put forward as a new, or a useless as a useful invention. Indeed, the attempt by means of any sort of preliminary investigation to establish the utility or inutility of a Patent must, in his opinion, necessarily fail so long as the granting of Patents was a matter of right and not of discretion. And what was the result when a Patent came to be disputed in a court of law? Everybody was aware that such litigation had acquired a reputation infamous beyond every other. In the Paraffin Oil Company’s case, which had been referred to, the time occupied before Vice-Chancellor Stuart was not less than thirty whole days. Why was so large an amount of time consumed in those cases? Because it was necessary to enter into the whole history of the discovery in all its numerous stages, and to beat up witnesses all over the country, so that a voluminous mass of scientific evidence had to be produced. That was the reason why the expense in those cases was so enormous, while the public were in every point of view placed at an immense disadvantage, for the presumption was in favour of the patentee, who, if he happened to have succeeded in an action against another person, was entitled to have the fact put in evidence in the case, and might subject his opponent to extra costs. But that was not all. In a case, he believed, of a Patent for the purifying of gas by the use of metallic oxide of iron, it came out that there were two kinds of oxide, the hydrous and the anhydrous, and that the one would effect the object while the other would not; but, because the terms were general, although everybody who tried the experiment might arrive at the result desired, the Patent was held to be bad, and another person who took out a Patent for the hydrate had his Patent made good. Lord Westbury, who was as well acquainted with the subject as anybody who had in recent times occupied the woolsack, said in 1862, in speaking on that point:—

“To vitiate a Patent by prior publication, whether in a prior
specification or in a published book, &c., the antecedent
statement must be such that a person of ordinary knowledge
of the subject would at once perceive, understand, and be
able practically to apply the discovery without the necessity
of making further experiments. If anything remains to be
ascertained which is necessary for the useful application of
the discovery, that affords sufficient room for another valid
Patent.”

It would be seen, he thought, from what he had stated, that the public were placed at a great disadvantage in the contest. In dealing with Patent cases in a court of law there was generally a vast array of witnesses to be examined, consisting of mechanics, chemists, and scientific men of all sorts on one side and the other. Then there were the jury, who knew nothing of the subject, and the judge, who might be placed in a worse position, because he might imagine he understood all about it when he did not. He did not, of course, mean to say that the judge did not sometimes understand it, but it might very easily happen that an ingenious professional witness might so argue the case under the form of giving evidence as to lead the judge to think that he really knew all about it when such was not in reality the fact. Then the bias being in favour of the patentee, the result of such trials almost invariably was, that if the matter happened to be of any practical importance, the public were defeated, after having endeavoured to protect themselves at an enormous expense. He would not enter into minute details, but probably he had said enough to show that a great practical evil arose out of Patent-Laws, and that for this evil there was little or no corresponding benefit. He did not think that we should lose really valuable discoveries if the Patent-Laws were abolished. There might be some rare instances in which particular circumstances might give to particular inventors motives for suppressing and facilities for suppressing discoveries which were not patented. But, assuming that to be possible in some cases, it operated even now, for it was well known that Patents were bought up for the purpose of being suppressed, and it was understood also that inventors were the persons who derived the least advantage from their inventions. His conclusion, therefore, upon the whole matter was that the time had at last arrived—even if it had not arrived some time ago—at which the public interest would be promoted by the entire abolition of the present system of monopoly.

[This speech and the succeeding one have been obligingly revised for the press by the speakers.]

SPEECH OF THE RIGHT HON. LORD STANLEY, M.P.