HC Deb 27 May 1862 vol 167 cc31-52
SIR HUGH CAIRNS

said, he rose to move for an Address to the Crown, praying for the appointment of a Commission to inquire into the working of the Law relating to Patents for Inventions. The difference of the views taken of the Patent Laws, when regarded from the side of patentees, or from that of manufacturers and the public generally, was very great, hut in either view the state of those laws was important. At that moment, on the hest calculations that could he made, there were about 14,000 patents in existence. Every one of these patents represented an outlay of a considerable amount of money and time. The property these patents represented, therefore, could not be otherwise than very large. In addition to that, looking at the question from the point of view taken by the manufacturers and the country, it should be remembered that every patent granted, or that might be granted, was in substance a curtailment, to a certain extent, of the wide domain which might otherwise be occupied by the manufacturers generally; and it could not but be the interest of the manufacturers to see that there was no such curtailment, or that their proper province should not be invaded without some consideration and proper safeguards. He could not help thinking that the present was a convenient, opportune time for considering the question. It was rather more than ten years since, during the preparations for the Exhibition of 1851, that there was a considerable agitation in the country in reference to the state of the Patent Law then existing. Some persons who took an interest in the promotion of the Exhibition of 1851 also took a great and lively interest in the state of the Patent Law. After consideration before Committees of that and the other House of Parliament, an Act was passed in 1852, which had since regulated the grants of patents for inventions in this country. Another Exhibition of Arts and Manufactures as great, or at all events more extensive than the first, was then in existence; and it had so happened there had sprung up in the country a loud demand for a reconsideration of the law that had prevailed from 1852 to that time. But he ought to take notice that after he had put his Motion on the paper the hon. Member for Stoke-upon-Trent (Mr. Ricardo), who was unfortunately not present, gave notice of a Motion, not for a Commission, but a Committee of that House, to consider, not the working of the Patent Law, but the policy of the law itself. For that reason he wished to state briefly the advantages he thought a Commission would have over a Committee of the House of Commons. It was obvious that a Committee of the House must be confined as to its composition to those who had the honour of seats in it. There might be, and there were, a number of Members of the House very competent to investigate a question of the kind, some of whom it would be desirable to have in any body that might enter into the inquiry; but it was clear that a Commission would act at any period of the year, and probably at a time when the pressure of public business would be much less than at that moment; in that respect a Commission would have an advantage over a Committee of the House. The Motion proposed by the hon. Member for Stoke-upon-Trent referred to the policy of the Patent Laws; the Motion he himself proposed to submit was somewhat different. He proposed to ask for an address for the appointment of a Commission to inquire, not into the policy, but into the working of those laws. The reason he would explain in a few words. He did not mean to say that the policy of the Patent Laws, which he understood to mean the policy of having any patents for inventions at all, was not a very arguable question and one worthy of consideration. It seemed to him that a good deal might be said on both sides of the question, both in favour of maintaining the system of giving patents for inventions and in favour of the contrary position. That was a question, however, which, if it were raised at all, was a fair one for discussion in the House of Commons. It did not require an elaborate investigation by a Commission. If any one wished to raise that question, there were ample materials for the discussion. At the same time, he did not wish to abstain from stating his own opinion with regard to the policy of having patents for inventions. Some persons held that there was a sort of abstract right by which any one who had arrived at an invention should have a property in that invention secured to him as a matter of right. It had always appeared to him to be n doctrine which could not for a moment be supported, and it was quite inconsistent with fixing any limit to the operation of letters patent. He regarded it as a question of expediency. There could be no doubt that it was the interest of the State to encourage inventions, as far as they could be encouraged legitimately. There could be no doubt that it was the interest of the State to encourage the outlay of money for the promotion and discovery of inventions, and to discourage the concealment of inventions. The question was as to the price which it was worth while to give to arrive at those results. At that stage of the argument it was impossible to shrink from the conclusion at which all writers on political economy had arrived—that there was no mode by which the reward for inventors was so completely self-adjusting in its nature as granting privileges analagous to letters patent, whereby the inventor was rewarded by the increased price which was put upon the article manufactured. On the one hand, if the invention were worthless, he would not get the price, and no one would be injured; and, on the other hand, if the invention were valuable, he would reap the fruits of his invention, and exactly in proportion to the demand which existed for the invention which he had made. But although he thought the arguments for a reward for inventions preponderated over the arguments against it, he submitted that in appointing a Commission it would be inconvenient to invite attention to the question of the propriety of granting letters patent at, all, as the inevitable consequence would be a division of opinion among the Commissioners upon that higher and broader question; and, instead of applying their minds to the improvement of the existing system, they would enter upon a series of duella as to whether the whole system should be abolished or not. After balancing the arguments, therefore, he had arrived at the conclusion, which he hoped the House would approve, that it was most advisable to address the Crown for a Commission to inquire, not into the policy, but into the working of the law with regard to letters patent for inventions. It would greatly facilitate his object in bringing forward the particular points in which the law, in his opinion, required amendment, if the House would allow him to direct attention to the important changes which took place in 1852. There were three matters in which the Act of 1852 completely altered the system of patents in this country. In the first place, before 1852 there were no means by which a person who supposed that he had arrived at an invention could obtain temporary protection during the time that he was endeavouring to perfect it by experiments; and while making experiments there was the danger of their amounting to publication and preventing his obtaining any patent at all. In 1852 the Legislature provided, that upon an inventor lodging a description of his invention, he should have provisional protection for six months; and it was universally admitted that it was a wise and beneficial alteration. The second change was in reference to the publication of specifications. Up to 1852 the specifications were kept in writing in certain very obscure offices in London, and were virtually inaccessible to the manufactures of the kingdom. The Act of 1852 provided that all specifications should be printed and sold at a moderate price—not only new specifications, but the specifications of patents from the earliest period when they were granted; and it might be interesting to the House to know, that although only ten years had elapsed, the specifications of all the patents granted since 1611 had been printed, were to be found in the public libraries, and might be bought for a very insignificant price. The third alteration was, perhaps, of very much greater utility than the other two. Up to 1852 there was no possibility of obtaining one patent for the three parts of the kingdom. A patent for England could not be obtained until it had passed through seven different offices, fees and expenses being charged in each, and then the inventor had to get another patent for Scotland and another for Ireland. The expenses, exclusive of the fees of patent agents, amounted to £350. Inventors were now able to take out letters patent for all parts of the kingdom at once, at one office in London, and they had only to pay one patent agent. A mode of payment entirely novel was originated in 1852, and it had proved acceptable to inventors, and extremely useful. An inventor coming for a patent paid £5 on lodging the provisional specification, and he paid nothing more for six months. At the end of six months, if he wished to obtain a grant, he paid a sum of £20, and he paid nothing more for three years. During the three years he was able to consider whether the patent was worth any further outlay; and if so, a payment of £50 carried him on for seven years. During the seven years, he had the opportunity of considering again whether the patent was worth any further outlay; and if at the end of that time he wished to be further protected for fourteen years, he had to make a final payment of £100. The total payment was therefore £175, and it was paid by instalments, hardly irksome in any degree to the patentee, and increasing only in proportion as the profits of the invention might be supposed to increase. In asking attention to the imperfection of the patent laws, he felt bound to give full credit to those wise and beneficial changes which were made in 1852, and he was anxious to say, that ns far as he could judge from the statements of those who had occupied themselves with the question, the changes made in 1852, although they might not have made the system by any means perfect, were as beneficial and as useful changes as were ever accomplished by any one piece of legislation. He would next inquire, what had been the consequence of that change of the law in the increase of the number of the patents? Going back to 1833, twenty years before the Act was passed, the number of patents was 108. In 1851, the year before the alteration of the law, the number of patents was 455. In 1852–53, after the new Act came into operation, the number of provisional protections for inventions was 3,260, out of which 2,050 patents were actually sealed. Not only was there a sudden and instantaneous increase at that time, but down to the present moment, in round numbers, 3,000 provisional protections were taken out every year, and 2,000 patents were sealed. In 1860 the number of provisional protections was 3,196, and the number of sealed patents 2,060. It would be instructive to notice the subsequent history of the inventions after provisional protection. In the interval of six months between the granting of the provisional protection and the sealing of the patent, about a third of the applications dropped off, because the parties, upon consideration, finding their inventions not to be worth the further expense necessary to procure the sealed patents, declined to persevere in their resolutions to obtain them. Of the remainder, two-thirds were abandoned at the end of the third year, which he might term the next turnpike gate, and nine-tenths of the rest disappeared before the seventh year came round. In that way, therefore, 2,000 patents were reduced to 200. Hence the provision of the Act of 1852, in regard to different instalments of payment, had worked satisfactorily, and had produced a wholesome effect in getting rid of a number of patents, which the experience of a few years proved to be of a worthless or trivial character. What, then, were the evils which were made the subjects of complaint, and in regard to which he ventured to ask the House for a Commission? The objections against the system proceeded from different quarters, and were not altogether consistent. They might be classed under three heads. In the first place, it was alleged that the facilities for taking out patents, created by the Act of 1852, had led to a multiplication of worthless and trivial patents, which were looked upon as a source of evil by the general body of manufacturers in the kingdom. The second objection was this, that even after all the reductions of expense effected by the Act of 1852, the cost of the patent was still too high, and that, in point of fact, there was every year a large surplus arising from the fees paid in respect of patents, over and above the cost and expense of the office by which those patents were granted. The third and most serious objection was, that the mode by which patent causes, or causes for the infringement of letters patent wore tried, was not merely expensive, but unsatisfactory, by reason of the want of experience of the tribunal which disposed of them. He could not agree with the second objection, but he thought there was something in the first and third allegations. The multiplicity of patents had been exaggerated. Fie had inquired into the number of patents granted in France and in the United States, the countries in which the greatest number of inventions was patented. In France, where the expense of each patent was only £4, between 4,000 and 5,000 were taken out every year; and in the United States, where the expense was £7, the number was upwards of £5,000 annually. Judging from the number of patents in this country, it could not, therefore, be said that there was an undue expansion of the system; but, at the same time, there could be no question that a multiplicity of patents was a great evil. What was the cause of the multiplication of worthless patents? It would be found to spring from three sources. In the first place, no doubt a great many patents utterly useless were taken out by supposed inventors— workmen, perhaps, who, from the limited sphere of their observation, assumed that they had made discoveries which would probably make their fortunes, when it ultimately turned out that they had been long before anticipated by others, and therefore there was no novelty in these inventions. Another cause was, that many persons applied for patents purely for advertising purposes, in the hope of selling their wares to more advantage, from being able to make use of the word patent in their advertisements, and with no intention of enforcing their claims to monopoly. That, perhaps, did not do much harm, as the public must by that time be sufficiently on their guard against the practice, and as the patentees did not seek to carry their title into effect. The third cause of useless patents was more serious. It was alleged that certain traders, who were the original proprietors of one or two valuable inventions, took out new patents for small improvements and combinations thereon, or bought up all the patents of a similar character they could procure. Thus, they created a sort of network of patent rights to entrap the unwary and to frighten off rivals in trade. He could not say whether that allegation was true or not; but it was a subject that called for investigation; and if the allegation proved to be well founded, the practice was calculated to be seriously detrimental to the manufacturing community at large, and required some steps to be taken for its prevention and cure. At present the only investigation which alleged inventors underwent before patents were granted, was conducted by the law officers of the Crown, Of course, those officers could not examine into the novelty or usefulness of the invention; all that they could do—and that was often a task of some difficulty—was to see that the alleged inventor described in a clear and intelligible manner what he claimed as his invention, so that he might not afterwards add to or take from it. It was by no means uncommon for the law officers to send a description back twice or three times, in order that it might be made sufficiently particular. By some persons it was said that there ought, before a patent was granted, to be some preliminary inquiry of the nature of a public and judicial investigation into the novelty and usefulness of the invention. That was a very plausible demand on the part of the pub- lic, and would be a proper subject for a Commission to inquire into if one were appointed; but, in the mean time, he might be allowed to suggest one or two reasons for doubting the efficiency of such an investigation. Such a system had been tried in the United States; but the late Patent Commissioners of that country bad reported strongly against it. So far, then, as example went, there was not much encouragement to try the experiment in this country. But there was another danger by which it would be attended. A preliminary investigation, let it he observed, must be into either the usefulness or the novelty of the invention. The object of the existing preliminary protection for six months was to enable the inventor to test the usefulness of his invention in the only way in which he could test it, before he completed his patent. If the preliminary investigation was held before this protection was granted, they would be trying the question of utility before the inventor had had the opportunity of trying the experiments by which alone the utility of his invention would be decided. It should be borne in mind that some of the greatest men, and those most conversant with science and manufactures, had been the greatest sceptics with regard to the utility of some of the greatest inventions of which they bad had the benefit. Sir Humphrey Davy, for example, did not believe in the possibility of lighting houses with gas, and, had he been acting as a judge, would have condemned that invention as useless. Then, as to the novelty of the invention. Of course, if the investigation was to be anything more than a mockery, there must be ample advertisement of the nature of the alleged invention, and time and opportunity must be given for obtaining from all parts of the country objections on the grounds of its want of novelty. It was very easy to say "Get objections;" but the fact was that you could not induce objectors to come forward unless some proceedings were adopted against them for alleged infringements of a patent. For those reasons he thought that it was by no means so clear as it was in some quarters assumed to he that a preliminary investigation would be useful, and would put an end to all undue multiplication of patents. His own opinion was that they were compelled to allow every one to take out letters patent at his own peril, and that what was really wanted was not a preliminary investigation, but some short, simple, and inexpensive mode of recalling or revoking patents which had been improperly granted. At present the only way in which such a patent could be revoked was by means of a scire facias, a process which was very expensive, and one result of which always was that the person who set it in motion had to pay his own costs. If there was some simple process, such as a rule to show cause or something of that sort, by which a person might be called upon to justify his patent with regard to the utility or novelty of the invention, he believed that the air might be cleared and the manufacturing public would be at a small expense disembarrassed of worthless and trivial patents. Then came the question as to the cost of patents. Upon that part of the subject it was important to attend to the distinction between the charge for the patent and the appropriation of that charge. He did not think that it could be said that the actual charge, £5 in the first instance and £20 at the end of six months, was too high. Some persons, no doubt, thought that it was unjust to tax the inventor, and that the Government had no right to take from him any more than the sum actually required to cover the expense of the patent. He took issue with that doctrine. It seemed to him that, as the question was entirely one of expediency, the point to be arrived at was to ascertain what sum would, on the one hand, be sufficient to deter persons from making idle and useless applications for patents, and, on the Other, would not prevent any real and bonâ fide inventor from obtaining the grant of letters patent for his invention. There might be a difference of opinion as to whether the best amount was fixed in 1852, but he did not think that any case had been made out for the reduction of the sum then charged for patents. There was a much more important point on which inquiry was also necessary—namely, with regard to the disposal of the very large surplus arising yearly from these letters patents, after all the expenses connected with the grants had been provided for. At present these sums, amounting to some £25,000 yearly, were paid into the Consolidated Fund, and became available as part of the general taxation of the country, but it might fairly be inquired whether that was a proper application of the surplus. He could not help thinking that the inventors and manufacturers, from whom the money was derived, had a very strong case for saying that the surplus ought to be appropriated to purposes akin to those which led to the money being paid. The existing Patent Office was in many respects the worst and most inconvenient that could be conceived; there was no library where inventors might find means of consulting former specifications, or of studying the records of inventions in other countries. Above all, there was no museum connected with inventions, though it was very well known, that from time to time there had been almost pressed upon the Patent Commissioners large and valuable models which would be of the greatest value to persona studying the nature of inventions, if they were properly set up and arranged. These were all points to which inventors and manufacturers might fairly hold that the surplus funds which they contributed might more fairly be applied than to the general taxation of the country. Then it was said that the present mode of trying causes for infringing letters patent was very expensive and very unsatisfactory. And he thought the House would be startled with one or two instances of that litigation. There was a case very well known in Sheffield, in which a patent had been taken out by an eminent manufacturer named Heath. It effected a revolution in the manufacture of steel by the introduction of a chemical substance, and enabling steel to be produced at a reduction of 30 or 40 per cent on the previous cost. Mr. Heath, from the time he obtained the patent in 1842, till he died in 1853, spent his life in litigation. The suit was formally carried to the House of Lords; and he had obtained a statement which showed that the costs of the defendant were estimated at £7,000, and those of Mr. Heath at £8,000, showing that the two sides had expended in litigation connected with a single patent the sum of £15,000. It might be said that that case was prior in date to the year 1852; but he had got a later instance. A patent was taken out in 1850 or 1852 by a Scotch gentleman, named Menzies, for capsules and tops of bottles. The invention was no doubt a very valuable one, and litigation in connection with it was carried on both in Chancery and the Courts of Common Law. The question had been lately argued before the House of Lords; he believed judgment had not been given, but the solicitor to the plaintiff informed him that the costs of his client amounted to £14,487, and he estimated those of the defendant at £10,370. So that the total cost of legal proceedings in connection with this invention amounted to no less than £24,857. These cases went to prove that the present tribunal for the trial of patent cases was at all events not a very cheap one. He did not think, however, that any complaints could justly be made against the head of that tribunal; neither did he hold with some that a judge ought to he appointed exclusively for the trial of patent cases, because he believed he would often have very little to do. The question of jurors was a much more serious one. He did not know whether hon. Gentlemen had seen the account, in the ordinary sources of information, of a trial, which took place the other day, with regard to one of the electric telegraph patents, in which, after the case had lasted two or three days, and a great number of experts had been examined on either side, the jury took up their hats, and said they must decline to go any further, as they could not understand the proceedings. He believed jurors might have done the same in many other cases, when, from want of acquaintance with the subject-matter, they were necessarily at the mercy, he would not say of the counsel, but of the experts examined, being unable to exercise any judgment of their own upon the evidence. As a remedy for that state of things, he had heard it proposed to have in place of the ordinary jury one composed of experts— that was to say, of persons engaged in the particular trade or manufacture to which the patent related. But it would probably be found that in many cases a jury such as this would be the very last tribunal to he desired; because it would be composed either of the rivals in trade of the patentee, or else of persons who would be biassed by the effect which the patent was likely to exorcise in connection with their trade or manufacture. A proposition of a different character had been made, which seemed to him much more worthy of attention. The House was aware that in Admiralty cases, when a question of a technical character arose, the judge habitually associated with himself, as assessors, some of the elder Trinity Brethren, who possessed great experience in the technicalities which arose in cases of collision and other maritime questions. It had been suggested that in place either of an ordinary or scientific jury, it might be desirable to have sitting with the judge by way of assessors, in patent cases, three or four persons of general scientific attainments removed altogether from the details of trade and the prejudices likely to arise in connection with it, but still with minds so trained and adapted that they could readily be applied to any branch of science, arts, or manufactures. With such assistance, aided by his own knowledge of law and of the rules of evidence, the judge, it was thought, might be able to conduct an action of the sort in a manner satisfactory both to the patentees and the public. He did not offer any opinion of his own with regard to that proposal beyond saying that between these conflicting suggestions it was very desirable that a body of men should examine the question of patents and manufactures generally for the purpose of determining which was likely to prove the most satisfactorily-constituted tribunal. Out of doors there was a very strong demand for inquiry into the working of the patent system. He hoped the House would be disposed to accept the Motion which he had laid before them. If they did so, and the Commission which he trusted would be appointed was able to see its way, he felt satisfied that by the legislation which Parliament might adopt in accordance with their recommendations, a considerable boon would be conferred on the inventors and manufacturers of the country, and through them upon the public at large.

LORD STANLEY

said, he rose to second the Motion. His hon. and learned Friend had gone so fully into the question that he should delay the House but for two or three minutes in adding a few remarks to the observations already made. He thought it would be evident to any one who had looked into the question, that there were only three alternatives open to the Legislature when dealing with it. One was to ignore altogether the claim of the inventor to receive a patent or legislative protection for his invention—to throw open inventions as soon as they were made, and to leave the inventor to obtain his reward simply from being first in the field, and from such secrecy as he might be able to maintain as to the operations he was carrying on. The next alternative was to grant, as at present, patents for a limited number of years, after an inquiry before some tribunal that might be considered competent, that tribunal to have the right to pronounce finally and decisively whether the inven- tion deserved or did not deserve the protection which a patent gave. The third alternative was to grant patents, as at present, either without inquiry, or what was nearly the same thing—after an inquiry little more than nominal and formal, it being understood that the patent was to confer nothing more than a right to sue in a court of law; that it was not of itself an absolute protection to the inventor, but gave him a right to go to a court of law if the monopoly which he claimed was infringed upon. As regarded the first alternative, there might, perhaps, be more justice in it than at first sight appeared, or than would be generally admitted; but the universal practice in Europe and America was opposed to it; it would be condemned by public opinion, and in many cases it would be attended with injustice to individuals, and with great inconvenience to the public. It would lead to attempts being made to maintain secrecy in manufacturing processes, which would at once lead to various kinds of fraud, and deprive the public of much of the advantage of new inventions; and in the end it might become necessary to adopt some means of remunerating inventors at the public expense, which would throw upon Parliament, or upon the Executive, a duty which neither was fitted to undertake. He believed that those who had thought most on the subject, had come to the conclusion that it was impossible to find any other mode of remuneration than that afforded by patents, which would not be open to the gravest objections; but for present purposes it was enough to say, that any proposal to do away altogether with the protection which patents afforded would he universally condemned in this and other countries. The next alternative, that of referring claims for patents to a tribunal which would have the power of deciding finally whether a patent should or should not be granted, was the one which nearly every person on commencing to consider the subject was at first disposed to approve; but the more one looked into that scheme the greater and more serious became the obstacles to it. He did not hesitate to say that, after a good deal of consideration, those objections appeared to him altogether insuperable. In the first place, as discoveries took place in the whole range of the sciences, where were they to find men to compose a tribunal which would be competent to pronounce authoritatively and finally in every branch of science? If the judges had a personal acquaintance with the art or science to which the invention pertained, there would be the risk of prejudice and personal rivalry; if not, there would be the risk of ignorance. Again, before such a tribunal the inventor would be represented, but there would be no one to represent the public. An inquiry of that nature would be a trial between the inventor on one side and the public on the other. The inventor would have an interest in keeping the invention close; and the public, on the other hand, would have as strong an interest in throwing it open. The inventor would be represented by counsel; but who would retain counsel on behalf of the public? Then, again, there would be that objection to which reference had already been made—namely, that those inventions which were most original, and which in the end would be likely to turn out most valuable, would be the most unlikely to receive scientific sanction. Even if all those difficulties had been overcome, how long would such a tribunal, even supposing it to be in the right, be able to bold its ground against the double pressure that would be brought to bear against it—against the complaint of inventors who had failed to obtain what they sought on the one side, and on the other against manufacturers complaining that their operations had been impeded by the granting of unnecessary and frivolous patents? He believed that it would not be possible to maintain such a tribunal beyond a few years; and, further, he was of opinion that during its existence it would not put a stop to litigation. They could not refuse to any person who claimed to show that a patent had been improperly granted for some invention that had previously been made by some one else than the patentee, the right of going to a court of law—the right of a re-hearing in such a case. If that were so, and if the decision of such tribunal would not be final, nothing would be gained by patentees except the right of going to one tribunal to obtain their patents, and afterwards to another to defend themselves against persons who made infringements on their privileges. There would be two trials, instead of one as at present. These considerations led him to believe, that in the first instance the inquiry into the nature of the invention for which a patent was claimed ought, as at present, to be almost nominal and formal. He did not concede, as was sometimes said, that every man had a right to take out a patent, because it was a monopoly, and was a matter of concession; but for the interest of inventors, and of the public, he was convinced that the object which Parliament had in view would best be obtained by allowing persons to get patents easily, simply, and cheaply, at the same time affording an equally easy, simple, and cheap mode of subsequently disputing the grant to every person who was interested in so doing. The first of those objects had been effected by the Act of 1852: the second bad not. Still, the Act of 1852 had effected a great reform. Formerly patents were very costly for the great mass of inventors. Now, he thought inventors bad no cause of complaint on that head; for, though the total amount paid was considerable, the greater portion of it was not paid till it had been proved that the patent was of value to the inventor. The expenses, in the first instance, were not heavy. An objection was, however, taken to the state of the law on the ground that a large number of patents were taken out, not by inventors intending to make a legitimate use of them, but by persons whose object was merely to speculate on patents, by making them a means of annoyance to persons in trade—manufacturers and tradesmen often preferring to pay a sum down, even though not satisfied of the justice of the claim, rather than incur the trouble and expense of a costly litigation. If, as was generally alleged, that practice was resorted to, it afforded strong reasons for a change in the law. His hon. and learned Friend had pointed out, not only the expense, but the difficulty, lying in the way of those who wanted to test a patent. Again, he believed, that if any one wanted to ascertain the validity of a patent, the only practical method of doing so was to begin by infringing it. That was not a satisfactory state of things. Besides the question of the frivolous use of patents and the mode of procedure, there were others deserving of inquiry. He would only mention one. Those who on principle were most opposed to patents, and who thought, as many did, that when they gave a man a monopoly of an invention, they were dealing hardly by half a dozen other men, who, if he had not secured the patent, would have hit upon the same invention not very much later, founded their strongest objection upon this fact—that you not only gave the patentee power to levy a toll upon every person who used his invention, but also enabled him absolutely to shut out the rest of the world from his invention for a certain term of years, if he thought that that was a more profitable course than allowing the use of it for a consideration. The remedy suggested was, that instead of allowing the patentee the sole use of his invention, he should be compelled to give licences to such persons as required them on payment of a fair and reasonable consideration. He did not say that there were not difficulties in the way of practically carrying out such a suggestion. For example, there was the difficulty of deciding on what should be an adequate consideration; but if that and oilier questions of detail could be satisfactorily dealt with, the result would be to get rid of one of the greatest objections to the Patent Laws as they stood. These were points which deserved inquiry. It was not his wish, or that of his hon. and learned Friend, to prejudge the case; but, inasmuch as ten years bad passed since the existing Patent Laws were introduced, as that period had been one of great mechanical activity, and a large number of patents had been taken out, he thought a case had been established for a revision of the law, an inquiry into its working, and an attempt to ascertain in what respects it had answered its purposes, and in what it was susceptible of further improvement.

THE ATTORNEY GENERAL

said, that the question raised by his hon. and learned Friend and the noble Lord was one which would be of importance in any country, but which was of especial importance in a country like England, where manufacturing industry was so largely developed and the inventive genius of the people was so great. Ton years had elapsed since the last Patent Act was passed; and as considerable diversity of opinion existed upon the subject, the Government were of opinion that a fair case had been made out for inquiry, and it was to be hoped that the result of the inquiry would be such as to render the future working of the law entirely satisfactory. His hon. and learned Friend said very truly that it was matter of just complaint that recourse was had to the machinery of the Patent Law, in too many cases for the purpose of obtaining protection for comparatively trivial inventions. Inquiry might be made as to the best remedy for this evil, At the same time it was not easy to suggest one. It might, perhaps, be desirable by express legislation to add to the authority of the law officers as investigators of these patents, giving inventors a right of appeal in case of an adverse decision. Another point was the inconvenience and cost attending the trial of what were called patent causes. There again it was not easy to devise a remedy or to suggest a more satisfactory tribunal. At present these cases were generally decided by a jury under the direction of a judge. It had been suggested that experts sitting as assessors, in analogy to the Elder Brethren of the Trinity House sitting in the Court of Admiralty, should be associated with the judge in the trial of these causes. That suggestion pro-supposed the absence of a jury; and that being so, he was afraid that the decision of such a tribunal would be more unsatisfactory than that of a jury to those against whom it was given. In this country, as to all matters of fact, there was a strong- preference for the intervention of a jury, and the losing party was generally satisfied that he had had his chance and a fair trial. He was afraid, however, that no such satisfaction would result if the decision proceeded from experts sitting as assessors. On the other hand, it was impossible to deny, that though in the north of England and in London competent juries were sometimes impannelled, juries too frequently failed to bring to the trial of these patent causes a sufficient amount of knowledge or intelligence. He, therefore, admitted it would be a subject well worth the consideration of the Commission, whether it would not be possible to constitute some tribunal better adapted for trying these cases than a jury. He doubted whether some of the evils complained of could be effectually got rid of. The great cost of the litigation in patent cases was often caused by incidental circumstances rather than the state of the law, and both the cases referred to by his hon. and learned Friend had, he believed, passed through both courts of law and equity. Of course, if a tribunal could be found, competent to decide these cases in a manner satisfactory to the public and the parties, the necessity for appeals and new trials would be to a very great extent avoided. Complaints had been made as to the expense of obtaining patents; but that expense did not fall very heavy, for it was distributed over a considerable period, £25 being paid within the first six months, £50 more at the end of three years, and £100 additional at the end of seven years. It sometimes happened that there was a considerable surplus arising from patents, and it was a matter deserving of consideration how that surplus should be dealt with. he sincerely hoped the result of the appointment of the Commission would be to bring about as great an improvement in the present law as the Act of 1852 produced in the law before that date.

MR. MONTAGUE SMITH

said, that he was glad to find that his hon. and learned Friend was willing to assent to the appointment of the Commission. He considered that its labours would be well employed if the only inquiry which it instituted was into the mode of trying patent cases. He had had some experience of juries in patent cases; and, with all the respect for that tribunal, he thought it was utterly inadequate to the task of deciding in a great number of them. Juries might be competent to deal with easy cases, but not with those that were difficult and complicated. As science progressed, every improvement was a stop in advance of what had been done before; the cases became more complicated, and it was very difficult for twelve men taken at random as a jury to decide between the different scientific witnesses, and to understand the intricate models that were often produced in court. A present learned judge had assured him, that when practising in Chancery, it once took him a week to understand the model of a lace-machine, that he might be able to explain it to the Court. They could not expect a satisfactory decision from a jury in cases involving novelties in intricate machinery, when they saw the models of machines for the first lime on the floor of the court, and had no opportunity of mastering their details, even if they had the capacity from previous education to do so. He thought the time had arrived when, for the trial of difficult cases, some tribunal should be created better adapted for deciding them than the juries at present selected. He thought, also, though the judicial staff of the country might be sufficient for its ordinary wants, if patent cases were left to be tried at the ordinary sittings and assizes, it would be impossible for the judges to get through all the business. It would be impossible to get through the heavy mercantile cases that arose in London, if the jurors summoned had to try patent cases that might take a week or more to dispose of. In the case of "Betts v. Menzies," the Chief Justice of the Common Pleas, then a judge of the Queen's Bench, was engaged six long days, the jury returned a verdict for the plaintiff on Saturday night, adding to it a few words which induced the judge to remark he was afraid all their week's work had gone for nothing. The manner in which that case was litigated was alone a sufficient reason for inquiring into the state of the law. After the verdict in favour of the patentee, the case was taken to the Queen's Bench, where the patent was defeated on the ground that an old patent had been discovered in the office by which the invention had been anticipated. The Court considered that the discovery was fatal to the patentee, after going through several courts. Finally, the case was carried by appeal to the House of Lords, where it was still pending. He was glad there was to be an inquiry by a Commission; without saying that in all cases juries should be dispensed with, or what should be the constitution of a new tribunal, he thought the principle of the Admiralty Court might be adopted. There a judge sat with the assistance of two Trinity masters, and the decisions, he believed, generally gave satisfaction. So for the trial of patent cases, a judge might sit with two experts, as assessors; persons might be selected for the duty having special knowledge of the subject to which the patent related. In conclusion, he would congratulate the House and the country on the probability of an Amendment of the present state of the law, which was not conducive to the attainment of truth, and was often the cause of scandal to the administration of justice.

MR. LEVESON GOWER

said, he could not but express his regret at the very limited field of inquiry upon which the Commission was to enter. Some disappointment would be experienced by the public at finding that the policy, as well as the operation of the present law, was not to be a subject of inquiry. In 1851 men who were most competent to pronounce a sound judgment expressed their opinion that patents practically did more harm than good to inventors as well as to the public; and, although some surprise was excited at the time, it was an opinion which had year by year become more and more general. It was very desirable that the doubts which the weight of these opinions had necessarily created should be set at rest, and he really did not see how the Commissioners could consider the operation of the patent laws without extending their inquiries further, and throwing some light upon the general question as to the advisability of having any such laws at all. He concurred in the view of the hon. and learned Member for Belfast that the patentee of a useless invention obtained no reward; indeed, he not only received no reward, but he was induced by the patent laws to spend his time very uselessly, and to incur expenses for which there was no return. But he did not agree with the other part of the hon. and learned Gentleman's proposition, that a patentee of a valuable invention obtained a proportionate reward. Whenever a man was the patentee of an invention of great national importance, it seemed to invariably happen that some ingenious person started up and took out a patent for a slight improvement upon it. They were thus placed in this difficulty—they must either refuse patents for improvements on previous inventions, or, allowing them, deprive the real inventor of his reward. The consequence generally was, that inventors were led into disastrous lawsuits in order to defend their rights, and it was remarkable to see, in reading the history of some of the greatest inventors, how their lives were harassed by such litigation. There was the case of Mr. Cort, the inventor of puddling iron. He was led into litigation and died a poor man, and his son, in a petition to Parliament, stated that his father had never received any benefit from his great discovery. Mr. Watt, too, was involved in some of the longest lawsuits on record, and Mr. Fulton, of whom the Americans were justly proud, died at the age of forty-five, his health having been impaired by the worry of perpetual legal disputes about his invention, in which he became involved. It was matter for consideration whether there was not something inherent in inventions which prevented their being the property of man and precluded any one person obtaining the reward. The speeches which had been delivered that night had told as much against the system as against the existing law; and although remedies had been suggested, he did not believe in their being effectual. He should support the Motion, but he regretted that the inquiry was not to be more extensive.

MR. VINCENT SCULLY

said, he agreed that, in the majority of cases, the patent laws inflicted greater injury than benefit on inventors; and, if possible, some means ought to be devised to protect: them from such injury. There was no class of men who were so much entitled to the protection of the law as inventors, and there was nothing so peculiarly the; property of a man as the labour of his; brains. The patent laws were improved in 1852, and they now required further; improvement. One great evil was the expense attending legal proceedings in these cases. He did not think a jury a fit tribunal, and he would suggest that such cases should be tried by a judge, assisted or not by a scientific assessor or assistant, leaving it to the option of the parties to have a jury if they preferred one. He believed, that if the option were given, the parties in ninety-nine cases out of a hundred would not withdraw the consideration of the question from a qualified judge. Some restraint ought to be placed on the granting of patents which were neither novel nor useful. It would also be a great blessing to inventors if there were some person to whom they could apply for correct information before throwing away their money, which, as poor men, they found it difficult to scrape together. Any man could set set up as a patent agent, there being no certificate required; but a patent agency required as much skill as any profession. It would be a great protection to inventors if they had some scientific tribunal before which they could go in the first instance, and ascertain whether their inventions were worthy of being followed up or not. To do away altogether with protection for inventions would be not only an injustice to inventors, but a disadvantage to the public. The hon. and learned Gentleman had done much good by bringing forward the subject, and he hoped the result of the Commission would be to introduce some improvement in the present law; but he feared it was too much to expect that it would lead to a perfect legal system upon so complicated a subject.

MR. FRANK CROSSLEY

said, that, as a manufacturer, he had some experience on the subject, and could state that the body to which he belonged were becoming more and more impressed, not with the worthlessness, but with the importance of patents. The Act of 1852 effected a great reform in enabling men of small means to procure patents, not so much because the expense was reduced, as because it was distributed in several instalments over a number of years. In spite of the strong feeling in favour of juries, there was a growing belief that patent causes ought not to be tried by ordinary juries. Inventions now followed inventions so rapidly that a very small distinction between one machine and another became a matter of the greatest possible importance, and it was very difficult to understand the difference. Jurymen ought at least to be allowed to leave the box and examine the models produced in court. He thought the noble Lord the Member for King's Lynn had taken a very sound view of this question. If the proposed inquiry led to as valuable reforms in regard to the protection of inventions as the last Act did in regard to the cost of patents, inventors would have every reason to be satisfied.

Motion agreed to.

Resolved, That an humble Address be presented to Her Majesty, that She will be graciously pleased to issue a Commission to inquire into the working of the Law relating to Letters Patent for Inventions.