HC Deb 27 May 1852 vol 121 cc1221-34

Order for Second Reading read.

Motion made, and Question proposed, "That the Bill be now read a Second Time."


presented a petition, praying that the Bill be referred to a Select Committee.


presented a petition from Pentonville, praying that the measure be not referred to a Select Committee, but that certain clauses be altered.


was of opinion that the Bill should be referred to a Select Committee to take evidence as to the effect the measure would have upon various interests in the country. No one could be more convinced than he was that the patent law required amendment; but he thought it was impossible to pass a satisfactory law on this subject during the present Session, and therefore he thought they ought to devote the time that yet remained to obtaining evidence from practical men, whose suggestions might be adopted in the next Session. There were one or two objections to the present Bill, to which he would call their attention. In the first place, the prerogative of the Sovereign was injuriously interfered with; for, though it was provided in the 17th Section that nothing contained in this Act should interfere with the prerogative of the Crown, yet in other sections he found that the Bill appointed certain official persons as Commissioners who were to administer the new law, and a part of their duty was to appoint an Examiner or Examiners, to whom all applications for patents were to be referred; and he put it to the House whether a power of that kind ought to be committed into the hands of any subject. Then it was provided that the legal proceedings connected with all patents in Scotland and Ireland, should be transferred to the Courts in Westminster Hall. Now, various complaints had reached him from Scotland with regard to the efforts which had of late been made to transfer the ancient rights and privileges which Scotland possessed as an independent kingdom, to English courts. Besides, it deprived the legal practitioners in Scotland of their legitimate professional occupation, and would be productive of great inconvenience to litigants, who would all be obliged to come up to the Courts of Westminster, though they already possessed in Edinburgh courts in which they had the fullest confidence, as well as practitioners who were as capable of defending them as any that could be found in this metropolis. Another objection to the Bill was, that though one series of payments extended the right of patent to the three Kingdoms and the Channel islands, yet it did not include the Colonies. On all these grounds he thought it would be better to delay the measure. He did not like to move to that effect. [Cries of "Move!"] No, he would like to hear first what the right hon. Gentleman had to say in its favour; but he thought it would be much better to send the Bill to a Select Committee, with the usual power to send for persons, papers, and records.


did not concur in the recommendation of the hon. Gentleman that the Bill should be postponed to another Session, because he had received representations from various quarters regarding the evils of the present system; and he thought there ought to be some alteration without loss of time. Without doubt the present Bill was regarded by practical men as a very imperfect remedy for the evils that existed; and therefore he thought it ought to be referred to a Select Committee, who would have the power to examine practical witnesses upon the subject. The House of Lords had had a Committee upon the subject; but he regretted to say that that Committee did not call before them the class of witnesses who were best capable of giving information. He regretted that the complicated machinery of the present system was continued in the Bill, believing that the right principle of dealing with inventions was to assimilate them as much as possible to the principle of copyright of books; because, after all the pains and expense an inventor was put to in procuring his patent, if his right were questioned, he had still to go to a jury; whereas, if an author had a copyright worth 10,000l., he had only to. go to Stationers' Hall to secure it. He thought it ought to be the same with regard to inventions. He could not see any distinction between the two cases, whether a man impressed the image of his mind upon brass or steel or paper. Was it not a hard thing that a poor man of inventive genius, if he discovered something that would raise his reputation, as well as be to him a source of wealth, and a benefit to the country, should be encountered at the very outset by the payment of a sum of money which he was not able to command; so that his only resource was to go to some speculative capitalist, who would purchase from him for 10l. or 20l. an invention which might be worth 50,000l, He thought that every facility should be given, especially in a country like this, to persons who brought out inventions; and yet the fact was that in this respect we were behind almost every country on the Continent. In France, Belgium, Denmark, and the United States, a man might secure all that the English law of patent gave him, for less than 10l., while in this country he was required to pay between 300l. and 400l. In France a man had merely to go and register his invention; and by that act of registration he would have perfect security, and at a cost of not more than 4l. This was a preposterous state of things, and ought not to be permitted. He would be delighted if the right hon. Gentleman opposite (Mr. Henley) would apply his own powerful and vigorous mind to the subject; and he was sure he would come to the conclusion that the patent law ought to be assimilated to the law of copyright.


said, this measure had already been before various Select Committees, and it appeared to him that the proposal to refer the Bill to another Committee was only in effect to postpone it to another Session. For his part he thought this was a useful Bill; he had received several letters from his constituents in its favour, and he hoped the right hon. Gentleman would not agree to send it to a Select Committee.


said, that hon. Members had stated that this Bill had already been before several Select Committees; and one hon. Gentleman had stated that if it were now referred to a Committee, the Session would pass over before it could be considered. But he (Mr. Stuart) could not see why sending this Bill to a Committee should necessarily result in throwing the Bill over to another Session. This Bill was prepared by the late Government. [Mr. HENLEY dissented.] He had understood so; but it now appeared the right hon. Gentleman treated it as his own Bill. The subject was no doubt one of vast importance, and one on which public opinion was greatly divided. The hon. Member for Finsbury (Mr. Wakley) had proposed a principle which he believed had never been sufficiently considered. He had proposed that the law of patent should be assimilated to the law of copyright. He did not accede to that proposition; he was not prepared to abrogate the patent law; but still he believed that between the present state of the patent law, and the more extreme opinion advocated by the hon. Member for Finsbury, there were many intermediate points which well deserved consideration. The measure not only affected the rights of individuals, but it dealt with great questions of constitutional and international law. He referred more particularly to the 27th Section, in which he found an extraordinary provision, which might be very good or very bad, but which was certainly entirely new. It provided that English patents should not prevent the use of inventions in foreign ships resorting to British ports; so that as far as regarded discoveries applicable to navigation and commerce, the whole value of the patent would be annihilated by that clause of the Bill. The only exception to the clause was the case of countries which did not concede the same right to English ships. He longed to hear what the right hon. the President of the Board of Trade had to say in favour of that clause. A bad alteration of the law was worse than no alteration; and therefore he implored the House not to pass this measure without due consideration. They had a warning before them in another Bill which was to come before them to-night—the Wills Amendment Bill. Some years ago the law of wills was thought to require alteration; and though the present Lord Chancellor, then Sir Edward Sugden, implored the House to delay the Bill for three months, yet it was forced through, and the consequence was, that no man now knew how to make his will; even one of the ablest lawyers of his time (Mr. Jacob) made a will, which was among the first litigated under the new law; and after seven volumes stuffed full of reports of litigated cases, they were now going to alter the law again. He trusted that this would prove a warning to the House, and therefore he implored his right hon. Friend not to press the measure during the present Session, but to agree to its being referred to a Select Committee.


said, that a Bill on this subject had in some degree been prepared by the late Government before they went out of office; and, in point of fact, the present measure was substantially the same Bill that passed both Houses of Parliament last Session—which was sent down from the House of Lords to this House, where some amendments were made in it—which was then sent back to the House of Lords, where the amendments were agreed to; and which, if the Session had continued but one day longer, would have become the law of the land. With the exception of a single clause, his hon. and learned Friend (Mr. Stuart) had not stated one objection to any of the provisions of the Bill; and he (Mr. Henley) did think that that was very odd, coming from a person of so much acuteness. Instead of bringing objections to the Bill, his hon. and learned Friend had amused the House with a long discussion on the subject of wills, as if wills had anything to do with the matter before them. With respect to the 27th Clause, he (Mr. Henley) was ready to admit that the subject to which it related was one of the greatest difficulty; and whether the clause could be amended so as to be put into a better shape, and deprived of its retrospective effect, was a matter well worthy of consideration in Committee, where he should be ready to attend to every reasonable and proper suggestion. The hon. and learned Gentle- man had, however, omitted to state that the provisions of that clause were to have effect only in case of reciprocity. Now, what were the facts in relation to this subject? A person takes out a patent, say for a screw steamer. He takes the legal steps open to him, so that a vessel cannot use his patent in the ports of the United Kingdom; but there was nothing to prevent the patentee from going to Holland or to America and taking out a separate patent in each of those countries, so that when any unfortunate vessel using his patent went to those countries it might be seized upon by any parties that had an assigned right in the patent, and universal injury to commerce would ensue. He was surprised that his hon. and learned Friend should have fastened on this clause, and that he should not have given the House any information on the main subject and purport of the Bill. The hon. Member for Edinburgh (Mr. Cowan) had stated that this Bill invaded the Queen's prerogative; and as an illustration he said that Her Majesty was to appoint Commissioners who were to perform all their functions under the authority of the Crown—and this he had called an invasion of the Queen's prerogative: but since Her Majesty was to appoint certain officers, it appeared to him (Mr. Henley) not to make much difference whether the duties to be performed were executed by the law officers of the Crown or by Commissioners. Then the hon. Member had said that he thought it hard that Scotland and Ireland were to be deprived of the power of settling their own quarrels in their own law courts. If that were really the effect of the provisions of this Bill, no one would be more ready than he (Mr. Henley) to agree with the hon. Member; but the main principle of this Bill was, that this being a United Kingdom, if a patent was granted, it ought to run through the United Kingdom. That was one great principle of the Bill; whether the machinery for carrying it out were the best and simplest that could be contrived, he, for one, would be sorry to say: it might be capable of improvement, but that must be done in Committee. Now, since it was desirable to have one patent for the United Kingdom, it was necessary to set up some machinery common to the three countries; and the Commission would consist of the Master of the Rolls, with the law officers of Ireland, Scotland, and England, so that a Scotchman applying for a patent could make reference to the Scotch law officers, and an Irishman to the Irish law officers; and there could be no doubt that each case would be adjudicated upon in accordance with the particular law and custom of the country from which it proceeded. The extension of patents to the Colonies was a subject not altogether free from difficulty, and the practice with regard to what were called Crown colonies and other colonies was somewhat different. But the Bill might be amended considerably in Committee; and, if necessary, a clause might be introduced further securing the prerogative of the Crown in this particular. It was his desire to make the Bill as simple as possible, to save expense, and to relieve parties from the necessity of future litigation. With regard to copyright, many persons supposed that there was the greatest difference between that and a patent. For his own part, he could not see it, and he did not believe that the law with regard to the two was very different. Copyright could only be sustained by proving that the work was original, and a patent by its being proved to be a novelty. But it was said that a man with a copyright sets forth his ideas for the benefit of all the world. It was true that he did so; but then he put his own price upon them. Well, then, a party with a patent exhibits his patented article for sale, with a price affixed to it. Therefore he (Mr. Henley) could not see any great difference between them. Then some persons said that patents ought altogether to be done away with. He confessed that he was not of that opinion himself; but it was held by many men of great practical knowledge and intelligence. The subject of expense was a material feature in this question. He believed that he was not wrong in saying that a patent for the three kingdoms could not be taken out at present for a less sum, in fees and stamps (independent of the expense of a patent agent), than 250l. or 260l. The present Bill proposed that patents should be taken out for the expense of 25l. That would be an enormous boon to parties seeking patents; and if they found their invention so useful that at the expiration of three years they wished to extend the period of the patent, they might do so by paying a further sum. He was afraid that, in reducing the price of patents so low, there must be considerable loss to the Treasury—[Mr. WAKLEY: But gain to the public] The hon. Member said there would be gain to the public; but if parties were to have privileges it was fair that they should pay for them. It was not certain what would be the extent of this loss to the Treasury—that would depend upon whether or not there would be an increase in the number of patents, owing to the diminished cost. He would not now enter on the various details of the Bill, which might be better considered on a future occasion. With regard to the recommendation of the hon. Member for Finsbury, he (Mr. Henley) had throughout expressed his readiness that this Bill should go before a Select Committee, if hon. Members believed that they could not see their way with respect to some of the clauses, and wished to hear evidence. But he thought that to wait for an entire year, until every Member of that House should have his objections removed on every point, would be equivalent to saying that they should never do anything for the amendment of the patent laws. There must necessarily be considerable difference of opinion; but they should act on a balance of arguments, and thus endeavour to amend the law. He hoped the House would consent to the second reading of the Bill, with a view to its being improved in Committee.


observed that the loss to the Treasury by the diminution of the patent fees would not be so great as had been represented by the right hon. Gentleman the President of the Board of Trade; for it appeared from the Schedule that the total amount of fees would be 149l l1s. That was enormously too high, and he should propose in Committee to reduce it considerably. With regard to the punishment to be awarded for pirating inventions, he thought that the simple fine proposed by the Bill was not sufficient, for he held that an individual was guilty of as flagrant a wrong who pirated another's invention as the man who robbed his purse. He thought it would be a useful Amendment to make the piracy of patents a misdemeanour punishable by fine and imprisonment.


was surprised to hear the right hon. Gentleman opposite say that the Bill was the same in principle as that of last year. He considered that it was altogether different, and that it was as bad a Bill for inventors as could be devised. It had, in fact, only one redeeming clause, and that was the one which enabled an inventor to obtain a patent for a small sum in the first instance, and to renew it afterwards at a little additional expense. He considered that it would be impossible for the proposed Examiners to investigate the novelty and utility of an invention before deciding that a patent should be granted; for it often took seven years in order to prove that an invention was novel and useful. His own invention, which was now adopted by all, required fully that period; and he was convinced that if it had had to go before the Examiners proposed by the ill, they would have said his discovery was not worth notice, and would have refused his application altogether. But there was a much more important principle than that alluded to by the hon. and learned Member for Newark, namely, a clause by which no invention, if it could be proved to have been used in foreign countries, could be patented at all. They would only have to get a couple of vagabonds from the Continent to swear that they had seen the invention before, and the inventor would be deprived of the fruits of his ingenuity; and after the celebrated case of Queen Caroline, nobody could doubt that they could get foreigners to swear anything. The principle of the clause relating to ships was most objectionable; especially when they considered that the recent alteration in the law had caused a much greater number of foreign ships to come to our ports. Where he himself used to sheathe one foreign vessel, he now sheathed three. The provisions relating to the Colonies were also extremely important. Take sugar for instance. The English manufacturers would be materially affected if they had to pay a heavy royalty, while the colonial manufacturers escaped with impunity. He had said that the reduction in the expense was the redeeming feature of the Bill; but that might, if the Government chose, be equally well carried out under the present law; and it would be a great deal better to make the reduction with the existing system, than hastily to carry a bad Bill through the House. He did not mean to say that the right hon. Gentleman could not refer the Bill to a Select Committee; and if he selected his Select Committee well, he might get a very good Bill. That would depend very much on the practical knowledge of the Gentlemen composing the Committee. If they happened to have no practical knowledge, the Bill would be a very bad one. Unless the right hon. Gentleman would pledge himself to alter the Bill in the parts he had indicated, he should oppose the second reading.


said, that were it not for the great injury inflicted by the existing patent laws during the last half century, he should not be disposed to support the second reading of this Bill.


said, that reference had been made to a possible charge on the Treasury for the carrying out of this Bill, and he hoped an estimate would be given of that charge. Last year he had understood the amount for compensation and the reduction of fees would be very considerable.


said, it appeared to him that this was a subject of great importance, and that it would be very much to be regretted if, for the sake of a hurry which he confessed he could not see the reason of, the House should be led to pass a measure which introduced not only new regulations, but also, in many respects, new principles into the patent law of this country. He, for one, had formed a very strong opinion that it would be useless to pass the Bill, even through the present stage; and that it would be a far wiser course not to attempt to consider the clauses of the Bill in Committee this Session, but to postpone the whole subject to a future Parliament: and he would shortly state to the House some of the reasons which had led him to this conclusion. He knew it had been said that this was the same Bill which was pressed forward at the end of last Session, and which had advanced to the last stage in that House; and that this was a reason why they should pass the present measure. But he begged to observe that the measure of last Session was introduced at a late period, and that, it having been urged upon the House, that on account of the peculiar reasons which existed in connexion with the Great Exhibition, it was of great importance to pass it at that particular time, many hon. Members—himself among the number—were led to pay a less vigilant attention to the Bill, under those circumstances, than they would otherwise have done. Now, he had looked carefully through the present Bill, and it appeared to him to involve three entirely distinct subjects, if not more. One part of the Bill embraced a very useful class of clauses; and if the Government would content themselves with those, the Bill might probably pass without difficulty through Parliament. The clauses to which he referred went merely to the reduction of fees, and the better regulation of legal proceedings on the subject of patents. This was a most useful part of the Bill; but with respect to the rest of the clauses, he thought them open to serious question. In a case of this importance he thought the House were entitled to know whether the Bill had received from the Government that mature consideration which would enable them to say that it embraced those principles upon which they thought the question ought to be dealt with by Parliament, and whether they were prepared, upon their own responsibility as Ministers, to urge it upon the House. If he mistook not, this Bill was not prepared by the present Government, and they were by no means responsible for it. They might have felt it to be their duty to facilitate its consideration by the House, and that might be a very proper course to take; but it was not their Bill. It was prepared by the preceding Government, and chiefly, he understood, by a noble Lord (Earl Granville), who, with great candour, had stated in another place that he was unfriendly to the whole principle of a patent law, and that he looked forward to its entire abolition at no distance of time. Now, this was a very important question, and one, the dispassionate consideration of which the House was not likely to enter upon at the present period of the Session. In reading through the Bill, he thought he could trace the tendency of the noble Lord's mind in the different clauses; and if the Bill should pass as it stood, he believed it would be found hereafter to have undermined and subverted the whole principle of the patent law. Now, was it right that the Government should urge the House to proceed to the consideration of a Bill which was supposed to have such a tendency, unless they were prepared to state either that they were satisfied it had no such tendency, or that they were willing to legislate in that direction? The Government ought to state whether they were prepared to defend the principle of a patent law as calculated to afford a salutary stimulus to useful inventions, or whether they agreed with the noble Lord that the principle of a patent law savoured of monopoly, and ought to be entirely abolished, in conformity with the general rule of free trade. There were, in his opinion, two principles involved in the Bill, which went far to undermine the whole system of the patent law. The one was that which referred to the Colonies. It was a remarkable fact that last year, when a similar Bill came down from the House of Lords, the House of Commons introduced a clause retaining to the Crown the power which it at present possessed, of giving patents to the. Colonies; but the present Bill contained no such clause, and if it was passed in its present form, the power of the Crown to grant patents in the British Colonies would cease to exist. A large field would thus be swept away from patentees; and then it would be said, "You have abolished patents in Australia, Canada, and the West Indies, how can you continue to maintain them at home?" There was another principle, even more important, and that was the one concerning foreign patents, and the relation of foreign patents to English patents. There were three clauses in this Bill which were not in the Bill of last year. The first of these provided that the use of an invention abroad should be as fatal to letters patent as use in this country. Now, let the House look at what would be the immediate effect of that provision. How could a patentee be prepared to meet evidence from all parts of the world on the subject of his patent? How could he avoid being taken by surprise by witnesses whose character and competency he had no means of investigating? He (Mr. R. Palmer) had been credibly informed that there were parts of the world where, as soon as an invention was announced as having been discovered in this country, it was immediately found out that it had been long known to scientific persons in the countries referred to. Another clause was still more extravagant, and was to the effect, that if the same invention which was patented here was also patented in a foreign country, no matter at what time, no matter by whom, whether friend or enemy, whenever the foreign patent expired, the English patent must expire at the same time. No one, he thought, could introduce or devise any means more likely to undermine the patent law than this. Another clause provided that no letters patent should prevent the use of inventions in foreign ships resorting to British ports. He thought it impossible that these three clauses could be agreed to. But his objections to the Bill did not stop there. There was a series of clauses at the beginning of the Bill which introduced a new system of investigation preliminary to the granting of a patent, of which the effect would be, first, to create a number of new salaried officers; and, secondly, to drag the patentee into two expensive lawsuits, one before the Examiner, and another before the Attorney General; and then, when all was done, and he had got his patent, he was no better than before, unless he could satisfy the original conditions of his patent with respect to novelty and utility, to prove which any one could oblige him to come into a Court of law. He thought the present system afforded, upon the whole, as good a check as could be provided for preventing undue extension of patent rights, and that the proposed plan would, in contested cases, expose patentees to most expensive processes of a preliminary nature. He also considered that that portion of this Bill which provided for publicity being given to patents and specifications, required great consideration. If all the patents, with specifications and drawings, were to be published at the public expense, the scale of fees proposed to be established by the Bill would be utterly insufficient. He thought there were many other provisions of the measure which required grave consideration, and that it was hopeless to proceed with it in a Parliament which must so soon expire. If, therefore, a division took place, he should, feel it his duty to vote against the second reading of the Bill.


said, if his hon. and learned Friend had been present when his right hon. Friend the President of the Board of Trade explained the object of the Bill, he would have found that it did not interfere with the principle of the patent law, but maintained it as a wholesome stimulus to invention. The hon. and learned Gentleman had said that there were two clauses of the Bill which contained such new and important principles that they ought not to be adopted without more consideration than could be afforded to them during the present Session: the one the clause relating to foreign ships, and the other to inventions the use of which was known in foreign countries or the Colonies. With regard to the first, the object was to anticipate those differences which might arise and become matters of international law in reference to foreign ships carrying their nationality with them, which would be extended to articles used on board ship. The President of the Board of Trade had stated, however, that the House, in passing the Bill, was not bound to adopt that provision. With respect to the use of inventions used in the Colonies or abroad, he agreed with the hon. and learned Gentleman that the principle of the Bill in that regard required great and careful consideration. But those two provisions were quite independent of the main object of the Bill, which was first to diminish the expense of a patent to the inventor—and the reduction would be from 260l. to 25l.—and next to establish one patent for the three main divisions of the United Kingdom, so as to prevent a patentee being obliged to take separate patents for England, Ireland and Scotland. He could not help thinking that the effecting of these two purposes would constitute a great benefit to the public and the inventors; as for the objection of the hon. Gentleman (Mr. Muntz) to the Examiners, the hon. Member appeared to have misunderstood their proposed duties: the object of those officers' functions was to give to the law officers of the Crown an assurance, based on scientific knowledge, that the inventions proposed to be patented were worthy of a patent, and not to determine upon the novelty or the propriety of the grant. But if there was an insuperable objection to that provision, it could be altered in Committee. He hoped the House, then, would allow the Bill to be read a second time and referred to a Select Committee; after which they could see whether they would adopt the whole Bill, or separate from it the two provisions to which he had adverted.

Bill read 2°, and referred to a Select Committee.