§ MR. MACFIE
said, he believed the subject of the abolition of Patent Law had never been discussed in Parliament; it would, therefore, not be improper to 889 devote some considerable portion of time to its introduction, but he proposed only to lay a general view of the subject before the House. In the first place, he asserted that legislation upon this subject should be based upon two principles—first, that the interests of inventors should not be considered before the interests of the nation at large; and, second, that there could be no property in ideas. The grant of a patent had always been a Royal favour, and no inventor could claim as a right the exclusive privilege of manufacturing or selling any novel production he might have invented. An invention differed altogether from the literary work of an author, which he (Mr. Macfie) would continue to protect. The manufacturers of this country were generally opposed to patents which enabled a man for fourteen years to prevent the whole country from using any improvements which he had found out. The days of protection had passed. The protection which manufacturers now claimed was protection from evil laws, in particular from the grievous injustices which the Law of Patent-right inflicted upon them. When the patent system was introduced, 250 years ago, trade in England was in a very much less developed state than that in which we now found it. The statute then passed declared that no patent should be granted so as to cause general inconvenience. The House of Commons that passed that statute was strongly opposed to monopolies. There is proof that they regarded as causing inconvenience any invention that would diminish manual work. It was said that if this idea had been acted on in construing the statute, every patent for an invention would have been set aside. It was much to be regretted that their idea had not been acted on. The courts had shown a great disposition to make the words of the statute elastic, and the result was that there was a deluge of patents. Innumerable evils had arisen from the courts giving other than a literal interpretation to the terms of the statute. If the letter of the Act had been adhered to, he should not have any objection to a patent system; but the present system differed toto cŒlo from that which our forefathers introduced and thought tolerable. He could adduce abundant evidence to prove that patents interfered very seriously and in- 890 juriously with trade, whereas, one of the conditions on which a patent was originally granted was that it should have no such effect. If manufacturers made the most trivial improvement in their manufactures, they were threatened by the owner of this patent and that patent that they were infringing their patent rights; so that the result of the Patent Law was to cripple manufactures. He would refer hon. Members to the evidence taken before a Committee of the House that inquired into the subject of the Patent Laws, to the evidence taken before a Committee of the House of Lords, and to the evidence taken before the Royal Commission. In the days of Sir Robert Peel, in 1829, the multiplication of patents was foreseen to be a great evil. In 1851, the Manchester Chamber of Commerce looked forward with fear to the multiplication of patents. He held in his hand a paper which showed how many wrongs were inflicted by the present system on manufacturers, patentees, and inventors who were not patentees. One particular law plea in connection with the defence of a patent cost the parties £100,000. The Royal Commission on the subject was appointed in 1863, and their Report was issued in 1864. Many eminent men were examined, and the result was that, though, as he believed, the bulk of the Commissioners entered on the inquiry in the belief that the system could be remodelled so as to be made defensible, they ended by arriving at a very different conclusion. The Report stated that the majority of the witnesses had decidedly affirmed the existence of practical inconvenience from the multiplicity of patents; and the Commissioners called special attention to the testimony given by the First Lord of the Admiralty and the various witnesses on behalf of the War Department, showing the embarrassment caused to the naval and military services by the multitude of patents taken out for inventions in use in those Departments. He believed the noble Chairman of that Commission (Lord Stanley) had said that, before legislating on the subject the first duty of the House was to in-quire into the policy of patents. But though five or six years had elapsed since that time nothing had been done, and he believed the best course for the House to take was either to adopt his Motion simpliciter, or to call upon the 891 Government to issue a Royal Commission, so that the wishes of the country might receive attention. There would then be an opportunity of examining some of the working men of the country, who had complained that none of their class had been called as witnesses before the Committees, or the Royal Commission. From a Return lately published on his Motion, he would take a few widely separated years to show the increased number granted annually. While in 1650, the number of patents granted was 0, fifty years later it was 2; fifty years afterwards, 7; in another fifty years, 96; and it went on until, in 1825, it was 250, and in 1867, 2,292. Ireland, too, was a great sufferer by the present system, for whereas in 1800 there were only two patents in that country, now there were 2,292. That was one of the evils of the Union which he trusted that House would speedily redress. He hoped that the Reformed Parliament would speedily remedy that state of things. Almost the entire body of opinion formed on the consideration of the question was adverse to the continuance of these laws. This included the Chairman of the Lords' Commit-tee of 1851, Earl Granville, and Lord Campbell; also Members of their own House, including Sir James Graham and the late Mr. Cobden; in France, Monsieur Michel Chevalier; and he (Mr. Macfie) was present at the meeting of German economists at Dresden in 1862, which almost unanimously came to the conclusion that Patent Laws ought to be abolished. The most eminent engineers and manufacturers had arrived at the same conclusion. Then came the question were they simply to abolish patents, or to adopt the idea of Mr. John Stuart Mill, that, if abolished, rewards should be given to inventors. M. Chevalier had given his verdict in favour of pecuniary rewards. The sugar refiners many years ago petitioned Parliament for the abolition of patents, and that inventions of merit should be rewarded by the State. There was this in favour of that view, that it was the State not the manufacturer who calls for patents and gains by inventions. Patents interfere with export trade. The improvements in iron of Mr. Bessemer, for example, though doubt-less of importance, had had the effect of imposing a royalty of from £1 to £3 per ton. He (Mr. Macfie) had him- 892 self prepared a scheme for rewarding inventors of merit, but he would not now trouble the House with it. He should only ask the House, and he did so in the interests of the working classes, as well as of manufacturers, to determine that what had been created by the statute law and by the erroneous administration of that law should be cleared away, and free scope given to manufactures and trade. In conclusion, he begged to move the Resolution of which he had given notice.
§ 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 under the attention of the House. He rejoiced that the work had been undertaken by a practical man like the hon. Member for Leith (Mr. Macfie), 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 hon. 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 (Sir Roundell Palmer), 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 he thought to do anything inconsistent with the duly he had undertaken in seconding his hon. 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 hon. Friend had mentioned. Of course those who derived benefit—whether they were the public or were private individuals—from the discoveries which 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, 893 with, respect to improvements which were useful to the public service. But that, he conceived, would be a very different thing from an organized 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. When written, there was no difficulty in identifying it, and distinguishing it from all other books which had preceded, or which might come after it: it stood in no other author's way. 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 894 an interest in the investigation for practical purposes of the laws of nature had an equal right of access to the knowledge and the practical application 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 those results of natural laws, which were adapted to supply the wants and exigencies of those arts and manufactures; and the means of arriving at the knowledge of them was the common stock and property of all mankind who wore equally in pursuit of it. He could not allow that the man who was first in the race of discovery could of right 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 was a thing not reasonable in the abstract, and if justifiable at all it must be on considerations of public advantage and expediency, that the man who made the first discovery of a law of nature, or of the right mode of applying it, should have an exclusive right to apply that discovery for a certain period. It was said 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 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, 895 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. There were whole families of patents connected with all three. Take the electric telegraph. According to the evidence of a scientific witness, it was not possible, oven 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 with 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 ninety 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 ease 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 batter acquainted with that subject than a friend of his—a gentleman very eminent both in science and in the 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 896 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 so close that even the man who had practically got the thing might be shut out by somebody else who did it a trifle bettor. 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—ay, 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 material 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, without that nicety of discrimination which afterwards resulted from scientific knowledge of the article itself. All chemists knew that in order to get these oils instead of a gaseous product it was necessary to keep the temperature as low as possible. This was the state of know-lodge 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 and was produced from shale. Only the other day there was discovered in Scotland a now 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 897 substance were shale, the oil could not be obtained from it without the infringement of those patents. But a patent was taken out by a gentleman, who stated that his object was to distil bituminous coals at a low red heat 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 larger quantities than from any other known mineral. This gentleman (Mr. Young) took out his patent, notwithstanding all the previous knowledge on the subject, and it was held to be good, 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 would distil better 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 not priority, but commercial success —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 their 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 could be accomplished. They tried experiments with fans, which created a draught to draw the air from the mill- 898 stone cases; but everything depended on the adjustment of a plan to draw ju6t sufficient air and no more. People were actually on the road, and were doing the thing in an imperfect way—in a way which if they had continued after the granting of the patent would probably 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. Lawsuits of the most enormous and oppressive magnitude resulted simply from the circumstance that a man had been allowed to stop in and prevent the millers from carrying on their business in the best way. That they would have found it out was certain. [An Hon. MEMBER: Oh, oh!] Well, 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 re-marks 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 trades people, 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 slight improvements or combinations of a kind which really was so plainly in the open path, that everybody ought to be at liberty to use it. Most of these were themselves so limited and imperfect, as, without further improvements, to be of little or no use. 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 and incumbered 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 899 were willing to pay the tax, the owners of the prior useless patent might refuse to grant him a license. 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 before the Royal Commission in 1864, 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; hut 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 living 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, out what we have a notice of some kind or other of things that we have never hoard 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, 1 record by getting a description; but what I mean by a description is this—a very large number of patents are non-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 900 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 this large proportion of patents which were simply obstructing the trade and commerce of the country? Could anyone doubt that in the present 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 firearms, 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 largo number of patents had come under his consideration in connection with so-called improvements in fire-arms, ordnance, and ships. It would be seen from the evidence to which his hon. Friend (Mr. Macfie) 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 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 of 1864, 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 901 favour of patents proceeded on the supposition that the public were likely to be really benefited by some disco very which was worth the price of all the inconvenience and obstruction to which they were exposed under the present system. But suppose that in a doubtful case it was said that the information was possessed before, and that nothing had been gained. What was the position in which they stood? Was there really any protection in that respect in the duties which were discharged by the Law Officers of the Crown? Those duties, though he trusted they had always been carefully and intelligently discharged, had no such object in view, and could not be made to accomplish it. It was impossible for the Law Officers of the Crown, acting on the mere statement of the patentee, to know whether a so-called discovery was new or not. They could only examine into the question whether an alleged invention, as described, was or was not such as to satisfy certain general rules; 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. They had no choice but to pass everything that was not on the face of it bad; and he agreed with the Commissioners that any attempt to establish a preliminary examination into the novelty or utility of patents must 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, and of the arts and sciences connected with it, in all its numerous stages; and to beat up witnesses all over the country, who were able to say whether they had ever seen the same thing before, or anything like it; so that a voluminous mass of scientific and commercial 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 pre- 902 sumption 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. The defendant in such an action might fail, even though he proved, to the satisfaction of the common intelligence of mankind, that the alleged invention was not new, and that it had even been described in some other patent. In a case, he believed, of a patent for the purifying of gas by the use of oxide of iron, it appeared 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 another 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.The case of Betts' capsule patent, which involved costs to an enormous amount, was somewhat similar. There, this was the state of things—A gentleman had taken out a patent in 1804, and in his specification stated that if you put together plates of tin and lead, of equal or unequal thicknesses, and carried them at a hard pinch through rollers, they would adhere, and you would be able to get a good material. It turned out that the thing would answer well if you adopted proper proportions of thickness but not otherwise; and the person who indicated these proportions got a good and valuable patent in 1850. In that case Lord Westbury laid down the doctrine that if the two specifications, one dated 1804, and the other 1850, had been in the very same words, it would not follow that they described the same tiling, and that it would be still neces- 903 sary to prove what was meant by the specification of 1804, and that practical men could then have worked from that description, to show their identity. 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. It was said that the construction rested with the court; but the effect of all this evidence, after all, was for the jury, who knew nothing of the subject; and the Judge might be placed in a still 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 some times very well 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 a 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 night give to particular trades motives and facilities for suppressing by combination discoveries which were not patented. But, assuming that to be possible in some cases, the same causes operated even now, for it was well known that patents were often bought up for the purpose of being suppressed; and it was understood also that inventors were frequently 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.
To leave out from the word "That" to the end of the Question, in order to add the words "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,"—(Mr. Macfie,)
§ Question proposed, "That the words proposed to be left out stand part of the Question."
said, that agreeing substantially in the arguments of the hon. and learned Gentleman who had just sat down, he should not have troubled the House if it had not been for the circumstance that he was Chairman of the Royal Commission which sat upon the question of the administration of the Patent Law some years ago; and he thought, therefore, that it might be expected from him that he should state what was the result which that inquiry had produced upon his mind. There was no doubt that, quite apart front the principle of the law, the details of the law, as at present administered, were not satisfactory; and, if a Patent Law were to continue in any form, he believed that in the Report of that Commission various suggestions would be found by which the most prominent objections to its present working might be removed, and fair trial might be given to the principle itself. But it was impossible to carry on an inquiry of that kind, even limited as it was—it was impossible, at least for him, and he believed he was not the only one in that position—without a doubt being forced on one's mind whether any Patent Law could be framed in such a manner as not upon the whole, upon the balance of good and evil, to do more harm than good. That conclusion, he was bound to say, was totally opposed to his earliest impressions upon the subject. He resisted it for some time; but the more he had to look into this matter—the more he had to consider how great were the practical abuses and inconveniences of the existing system, and how difficult it would be to remedy them—the more clearly it appeared to him that the evil was really irremediable, being inherent in the principle itself. On this subject of patents there had been a certain amount of prejudice, particularly in the minds of literary men, who appeared to 905 think that copyright was only a modification of the same principle, and that, if patent-right were abolished, copyright would soon follow. The analogy seemed a plausible one, but he thought that, on being looked into, it would not hold water. The difference was simply this—he did not rest it on any abstract ground, as to the distinction between invention and discovery, but on the obvious fact that no two men ever did or ever would write, independently of one another, exactly the same book; each book, be it good or bad would stand alone; whereas it might happen, and often did happen, that two or three, or even half-a-dozen men, quite independently of one another, would hit upon the same invention. That fact alone established a distinction between the two cases. He was not disposed to place the objection which he entertained to the system of patents upon the ground of any abstract impropriety in giving a man a property in ideas. To a certain extent you did, in the case of copyright, recognize a certain qualified and temporary property in ideas; and, if it could be shown that a man's ideas had been of a nature to add greatly to the wealth of the country, he did not think that any abstract objections of the kind mentioned by the hon. Member (Mr. Macfie) would induce anybody to grudge to such a man any reward to which he might fairly be entitled, provided that that reward could be given in a manner free from objection on other grounds. The objections which he felt to the principle of patents were three-fold. In the first place, you could hardly ever secure the reward going to the right man. In the next place, you could not establish any proportion between the public service rendered and the value of the reward received nominally for that service. And, thirdly, you could not, by any arrangement that he had been able to discover, prevent very great inconvenience and injury being inflicted upon third parties. With regard to the first point—the difficulty of securing that the reward should go to the right man—it must be remembered that a patent did not, as some people supposed, bring to the holder of it an immediate pecuniary recompenses. All that it did was to give him a right to prevent anyone else from using his invention without paying for it; in other words, if his patent were in- 906 fringed, he was entitled to take legal proceedings. But everybody knew that the law was costly, and that patent suits were the most costly of all. It was notorious that patents were continually infringed by persons who well knew they were infringing them, but relied upon the inability of the inventor to incur the expense of defending his property. If a poor inventor took out a patent, and the patent promised to be productive, in nine cases out of ten, the only thing he could do with it to bring himself any profit, was to sell it to some one who could command capital enough to defend it in a court of law. If the patent remained in his own hands, it was quite sure to be infringed, and then he would probably be crushed by legal expenses. He did not know whether it would be possible to obtain accurate information upon this point; but he really did not think he should be exaggerating if he said that in nine cases out of ten—probably in ninety-nine out of 100—the reward was obtained, not by inventors or their representatives, but by persons who had bought the patent on speculation and at a very low rate. He said at a low rate, because there was a great deal of uncertainty about such property; until a patent was tested by actual working you could hardly say whether it was valuable or not, and the doubt necessarily kept down the price. What was the practical effect of this? Why, that a few great firms in any branch of business, buying up, at a low rate, any new patent applicable to their business, and prepared to fight for it, could so hamper other competitors as to secure a practical monopoly. The reward, therefore, did not, as a rule, go to the men who, on the ground of the public service rendered by them, were intended to receive it. As to the second point—that the reward might be great and the public service very small—that had been dwelt upon by the hon. and learned Gentleman opposite (Sir Roundell Palmer), and little need be added to what had been said by him. The merit and novelty of the invention might in many cases be almost nothing, and yet, however obvious it might be, however much it might lie, so to speak, in the high road of discovery, if it applied to any article of general use, the pecuniary reward derived from it might be absolutely out of proportion to either its 907 novelty or its value. It would be easy to give instances, but he apprehended that the fact was familiar to everyone who had studied this question. Then, with regard to the injury to third parties, it commonly happened that half-a-dozen men, who were competing in the same line of business, were upon the track of the same discovery. Each of these half-a-dozen men would probably have hit upon the invention which was wanted, independently and without communication with the other. But the first who hit upon it and who took out a patent for it was thereby entitled to exclude the general public and his competitors from the use: of that which, if he had never existed, they would probably have hit upon within a few weeks. A and B reached the same point, one a week or a fortnight before the other, and A became entitled, by the mere accident of that priority, to exclude B from a process which, a little later on, B would have hit upon for himself. Another case was that where the successful working of a process depended not upon one but upon several successive inventions. The first two or three, not leading to any immediate practical result, might not have been thought worth patenting. The last link in the chain gave to the whole their commercial value, and it was the person who took out the patent for the last invention who got the benefit of the whole, although it might be by no means the most important invention in the series. He would say nothing of the inconvenience caused to manufacturers in general. That was obvious enough, and the question was whether there was any counterbalancing advantage. These were the main considerations which led him to the conclusion that it was impossible to defend our system of Patent Law as it stood. At the same time, he did not at ail disguise from the House that there were certain inconveniences and difficulties in the way of abolishing patents altogether. You had to guard, in the first place, against the danger of encouraging inventors to keep their discoveries entirely to themselves. In some branches of business, no doubt, that would be possible, and the obvious effect might be to shut out the public, for a much longer period than would be the case if patents were allowed, from the use of some valuable invention. Then 908 it had been suggested by the hon. Member who raised this debate (Mr. Macfie) that there might be a system of State rewards for the encouragement of really meritorious inventions. Without putting an absolute negative on that plan, he thought it was one that ought to be entered upon with great caution. Inventors were a jealous race; and it would be a very difficult thing to apportion among them the rewards to which they might think themselves entitled. The distribution of the rewards could be governed by no clear and simple rule; it would give rise to endless complaints, and would occasion, however unjustly, suspicions of jobbing and partiality. With regard to the suggestion thrown out by the hon. and learned Gentleman (Sir Roundell Palmer) of the possibility of reverting to the older administration of the law, and granting patents not as a right but as a matter of discretion only in certain limited and important cases, the Commission considered that point very carefully; and he was bound to say that the difficulty of carrying it out appeared to his mind almost insuperable. There would be found great difficulty in drawing the line, and it would not be an easy matter for anyone to exercise so largo a discretionary power as to decide what inventions were really valuable and important and what were not worthy of patenting. He did not know what tribunal would be fit to exercise so great an authority, and he was sure that none would be able to exercise it in a manner to give satisfaction to the public. The most fit persons to decide in such a case would, seeing the difficulty of the task, be sure to decline to undertake the duty. Under these circumstances it appeared that they wore landed in a position of great embarrassment. He was convinced that the Patent Laws did more harm than good; but, at the same time, he saw certain hard cases that would arise from their entire abolition without any means being provided for the rewarding of inventors who might really be deserving of it. If called on to say "Aye" or "No "to the Motion, he should certainly give his vote in favour of it; but, as this was a matter of great delicacy, and which required very careful handling, he should be content to leave the question in the hands of the Government, and he thought it 909 was well worth consideration whether they could not institute some inquiry, starting, not on the same ground as the Commission did some years ago, but on the ground that the abolition of the Patent Laws, wholly or partially, was desirable, with the view of discovering, if possible, the best mode in which that abolition could take place, and the best substitute for them in certain cases.
§ MR. J. HOWARD
said, he thought the hon. Member who had introduced the subject had been singularly fortunate in finding so able a seconder as the hon. and learned Member for Richmond (Sir Roundel) Palmer). He had listened with much attention and no little interest to the objections and views, not only of the hon. Member who had brought forward the Motion (Mr. Macfie). but also of the noble Lord opposite (Lord Stanley), and of the hon. and learned Gentleman who seconded it. It appeared to him that most of the arguments that had been urged did not touch the principle of a Patent Law. but went rather to the defects of the existing law and its administration. In dealing with the objections raised by the hon. and learned Member to the principle of a Patent Law, he felt at how great a disadvantage he stood in having to combat the views of so able and distinguished a man; but it appeared to him as a plain practical man that the arguments used were more subtle and theoretical than sound. He maintained that the greater portion of the arguments of the hon. and learned Member did not apply to the principle of a Patent Law which he had assailed, but to the defects of our present system. If we would condescend to borrow some ideas from America, many of the objections which have been urged to-night would fall to the ground. A greater part of the evil complained of resulted from the sham examinations which now took place on the application for patents. The hon. and learned Gentleman said it was impossible for the Law Officers of the Crown to institute a proper inquiry; but, seeing that they received about £16,000 a year for that duty, it was desirable to know why it could not be performed. Again, the Act of 1862 made provision for the appointment of additional Commissioners; but this had not been carried into effect, consequently patentees had great cause to complain of the administration of the law. The diffi- 910 culty in trying patent cases mainly arose from the loose and imperfect way in which the specifications had been permitted to be drawn up, so that it was impossible to say what was new and what was old in them. He was prepared to show the House how these evils might be remedied, and these difficulties overcome, but this was neither the time nor the occasion to do so. The hon. and learned Gentleman had alluded to the three great inventions of the age—the steam engine, the electric telegraph, and the screw propeller—but was he prepared to maintain that these inventions would have reached their present state of perfection without the stimulus of the Patent Law? One objection urged against the Patent Laws was that patents gave a monopoly, and acted as a restraint upon trade. He admitted that, as at present administered, they did so; but if the State in granting a patent gave no exclusive right, and patentees were obliged to grant licenses on reasonable terms, to be settled by an independent body, this objection would be removed. There existed under the present system what is termed "dog-in-the-manger" patents, which are an unmitigated evil, and should be swept away. The hon. and learned Member had also alluded in an important and well-known invention in the grinding of corn, and had, he would say, jumped to the conclusion that it could not long have remained undiscovered, but he would ask what grounds had he for this assertion? The fact was that the world had gone on for 3,000 years grinding corn, without any material improvement in the method, until a man of genius like Bovill arose to make the discovery, but who, owing to the disgraceful state of our laws, was afterwards worried to death by litigation. Although he did not agree with the conclusions arrived at by the hon. Member for Leith (Mr. Macfie), he felt indebted to him for having brought the subject before the House. Much misapprehension undoubtedly existed in the public mind on the question of the Patent Laws and their administration. This discussion would enable hon. Members to clear away some of the mist and doubt that prevailed. It appeared to him that the main arguments had tended to show the necessity for an amendment rather than an abolition of the existing laws. That the Patent Laws as they now exist, and as 911 they are at present administered, are open to grave and serious objections he readily granted; but that their abolition would result in advantage to the country, or to the welfare and interest of i any particular portion of the community he altogether disbelieved. It must be remembered that England has at the present day most formidable rivals in France. Germany. America, and Belgium; and that her manufacturers and workmen have to compete with the manufacturers and workmen of these countries, who have availed themselves, not only of the best English models, but have adopted those facilities of rapid production originated in our English workshops, and hitherto peculiar to them. The only chance the English manufacturer has of maintaining his place in the race is by adopting improved designs—finding out means to reduce the cost of his productions, and introducing improved plans for securing perfect workmanship. Those objects can only be obtained by much thought and great effort of the brain; and, as the race is a close one, and every year is becoming closer, it appeared to him that, instead of the State taking away a stimulus to invention, the nation is deeply interested in finding out in what way inventions and discoveries can be further stimulated; how research and means of improvement can be extended not only to the higher class of inventors, but to our working population among whom thousands are to be found of a mechanical or scientific turn. This was abundantly evident to all who had visited the industrial exhibitions of working men's productions in London and elsewhere. When in Washington some two years ago, no building he had seen in the States made such an impression on his mind as the Patent Museum in that city. It was so superior to anything of the kind in England that he felt almost ashamed that our old country was so much behind the new. This museum was in fact a great educational establishment, to which not only the inventors, but the public resorted for information. Every patent for which the United States had granted letters was not only classified there, but models of the inventions were arranged chronologically; while in another spacious and beautiful apartment were models of all the rejected patents, so that anyone could go into 912 that museum, and trace the progress of the various inventions step by step. He could not help thinking that a similar establishment in England could not but have considerable effect on the national weal. The noble Lord opposite, and the hon. and learned Member for Richmond, had drawn a somewhat subtle distinction between the production of a book and a machine, or other invention; it appeared to him that a book, a piece of music, a painting, and an invention, are all alike products of the brain; and the natural right of the author of a mechanical invention should be recognized by the State as fully as that of the author of a book. The noble Lord had said no two men ever wrote the same book at the same time, which is undoubtedly true; but he had frequently found that two anthers writing almost simultaneously conveyed precisely the same ideas, though not in the same language. Exactly so, if two men invented similar machines simultaneously, it was never found they carried out their ideas precisely in the same mechanical way. With respect to the statement of the hon. and learned Member for Richmond, that the laws of nature were the common right of mankind, which must be freely admitted, he held that the argument based upon it was untenable. The inventor made use of the laws of nature just as the author of a book used the common language of mankind. He might be obtuse, but for the life of him he could not see that the cases were not strictly analogous. He would ask hon. Members, who were unacquainted with mechanical subjects, what would be the effect of abolishing the Law of Copyright? Would the literature of the people be thereby enriched—would the taste of the country be improved? He believed the abolition of the Patent Laws would have on mechanical, chemical, and other industrial pursuits, precisely the same effect as the abolition of the Law of Copyright upon literature and the fine arts. The hon. Member who introduced this subject said he would not withhold compensation from a meritorious inventor, but he would ask who was to decide the knotty point of merit, and its money value? At present the State very wisely left this to be decided by a discerning and purchasing public, and he believed it would continue to do so. To his mind it would be altogether infra dig.; to 913 him, personally, it would be revolting to have to go, cap in hand, to the Chancellor of the Exchequer, or some other State official, to press his claim for compensation, or get some powerful political friend to do so for him. No—from past experience of Government treatment, inventors would never consent to be left to the tender mercies of a State Department, but would prefer to confide their claims for reward to a discriminating public. That the Patent Laws and their administration should have been left so long unreformed is a scandal to former Parliaments. The machinery is costly, cumbrous, and withal uncertain and inefficient. Inquiries have been made, and a Royal Commission years ago passed condemnation, and suggested reform; but nothing, or next to nothing, has been done. We have the finest library of patented inventions in the world, yet the bulk of it was stowed away in a passage six feet wide. He knew it well, having often been there. It was really a passage just 6 feet 3 inches wide, and formerly led to the offices of the Master in Chancery. Could it be believed that such a state of things had been allowed to exist when, since the passing of the Patent Law Act of 1852, the surplus revenues of the office had been over £0.50,000, but a fraction of which had been expended for the benefit of inventors who had contributed the money? he held that the surplus should be devoted not to increasing the general revenue, but to promoting patent objects and the general advancement of science. He thought, as he had previously stated, this was scarcely the occasion for entering into details concerning the improvements necessary in our Patent Laws, but expressed a hope that, when the subject was taken in hand by the Law Officers of the Crown—and he had reason to believe they would take it in hand next Session—they would provide the means of a bonâ fide examination of all inventions before patents were granted, and also provide that the specification should be so clear that the public may know what really the patent was granted for, and thus save the ruinous cost of legal proceedings. He would conclude by declaring his deliberate conviction that, if they wished to undermine the manufacturing and commercial greatness of England, they could not 914 take any more effectual mode of doing so than by abolishing the Patent Laws.
§ MR. MUNDELLA
said, he wished the House to consider what would happen if the Patent Laws were abolished. He had been for twenty-five years connected with manufactures as an employer, and during that time he might say he had more than twenty patents, in every one of which he had a working man in partnership with him. He had never made an invention in his life; he did not know in his neighbourhood of one invention made by an employer. Inventions were generally made by working men; and a working man now received from his hon. Friend the Member for Bristol (Mr. Morley) and himself a third share of the profits of a patent invention which had already produced to him £2,000. About fourteen years ago he went into a garret where he found a poor man working on a circular revolving machine which he had fixed on the bottom of a wooden chair—the only chair in the room. For seven years he had been patiently working at it. It was completed. It was patented. He purchased it. The poor man had his share and was now in comfort and independence. No parties had a greater interest in the maintenance of the Patent Laws than working men; and, if they received no protection here for their inventions, they would soon carry them off to France or America. He did not say whether Patent Laws were right or wrong; but he could not discover the distinction which had been drawn by the hon. and learned Member for Richmond (Sir Roundell Palmer) between a book and an invention, both being the production of the author's brain just as much as the speeches of learned counsel, for which they were paid before they were given to the public, otherwise they would be wanting a Patent Law for their speeches. Every civilized nation in the world except one had a Patent Law. That the present law stimulated useful inventions was abundantly proved by the lace and hosiery machinery in the town of Nottingham, which was unparalleled in the world, and which had been perfected by the working men of that town. It was a great mistake to say that patents inflicted a hardship on the public. Patentees had found out that to attempt to keep a patent to themselves was a mistake, and that it was much better to 915 grant licenses with as small a royalty as possible, in order to get a large number of them in use and to enhance the consumption of the article as much as possible. He was himself the part proprietor of a patent which reduced by about one-half the price of an important article of clothing. Who had the benefit of this? The public got more than nine-tenths of the reduction, and the other tenth was divided into throe parts between the inventor and the two proprietors. There was the greatest difficulty in establishing the right to patents, and constant litigation and anxiety in maintaining them. All this pointed to a reform of the Patent Laws; for they were so vague, uncertain, and ambiguous that it was never known whether a patent was secure. Sometimes, when it was known an invention was coming out, a man who had heard the nature of it described went off and patented the idea. He could not do that in America. There he must deposit a working model, and a committee of scientific men sat and declared whether it was a good and valid invention or not. The result was that there were 11,000 patents per annum taken out America, against about 2,000 in this country. Nowhere had so much been done to develop industrial inventions as in America, and this was mainly owing to the excellence of the Patent Law in that country. He trusted that the House would consider the interests of the working men, and revise the Patent Law so as to give them a fair share in the products of their discoveries. The patents called "dog-in-the-manger patents" ought to be prohibited, and some Board appointed which should grant licenses to work patents at a reasonable rate.
§ MR. STAPLETON
said, he was much pleased to hear the able remarks of the hon. Members for Bedford (Mr. J. Howard) and Sheffield (Mr. Mundella) in favour of Patent Laws. The Motion of the hon. Member for Leith (Mr. Macfie) seemed to have the object of killing the goose that laid the country so many golden eggs. He appeared anxious to get rid of patents, but without giving inventors any encouragement. He (Mr. Stapleton) had no wish to put inventions and discoveries higher than they had been put by the hon. and learned Member for Richmond (Sir Roundell Palmer)—namely, that no man could have an absolute right in 916 his ideas and inventions longer than he kept them secret; but he met that by saying that every labourer was worthy of his hire, and if that was not given to a man they must not expect to get his work. There were three classes of inventors—the master manufacturer, the labourer, and the man of science who made invention a pursuit. The master manufacturer could repay himself at the expense of the community by keeping his invention a secret, and preventing others from using it; but the labourer, unless he had a Patent Law for his protection, would go unrewarded for his time and trouble. As to the third class they might turn their attention to something else; but it was desirable that every man should pursue the course of life which would do the greatest good to mankind, and if a man were likely to make discoveries it was to the interest of society to encourage him in that career. He could not, therefore, agree to any proposal to do away with the Patent Laws. It was a weak proposal; it appeared to him what they should do would be to amend them. No doubt, as the noble Lord the Member for King's Lynn (Lord Stanley) had said, the question was surrounded with difficulties, but the noble Lord had not shown that they were insurmountable. Some more definite description ought to be insisted on before a patent was granted, and he (Mr. Stapleton) thought the American plan, that of requiring models to be deposited, was one deserving of consideration. He was also of opinion that the time for disputing the patent should be limited, and that the time allowed for the use of the patent might in some cases be reduced. A patent should be redeemed when it was found that it-would be conducive to the public interest that it should be redeemed, and that should be left to Chambers of Commerce to decide, the patentee of course being paid the fair value of his patent—the amount to be raised by subscription from those who were interested in the invention. Patentees should also be compelled to grant licenses at a reasonable rate. A great improvement had been affected by the practice now most common of investigating disputes as to patents in the Court of Chancery. A claimant must set forth in a bill that he had a good patent, and show that there had been a distinct breach of it, or it 917 would be open to demurrer. Then the defendant must deny the breach in his answer on oath before there was any issue which could be tried before a jury. This was less expensive than trying patent cases at Common Law. If they did away with Patent Laws altogether invention would be damped and discouraged.
§ LORD ELCHO
said, that anyone who had attended to the discussion must have seen that the question was surrounded with great difficulties, and it required a man who had studied the subject deeply, and had maturely formed his opinions, to be able to give a distinct opinion upon it. But having heard the opinion of the hon. Member for Leith (Mr. Macfie), the philosophy of patents so ably illustrated by the hon. and learned Member for Richmond (Sir Roundell Palmer), and having likewise listened to the philosophical view of the question which had been taken by the noble Lord the Member for King's Lynn (Lord Stanley), he was bound to say that to his mind the practical speeches of the hon. Members for Bedford (Mr. J. Howard) and Sheffield (Mr. Mundella) were quite refreshing. They had taken a rational and sensible view of the question. He thought it would be unwise to hastily adopt the Resolution, and that it would be wiser on the part of the Government and the House to see if the Patent Laws could not be practically and beneficially amended, after the example of the United States. The opinions of the philosophers and the practical men were at variance upon the question; but the hon. Member for Sheffield had shown the great value of the Patent Laws in stimulating invention in working men, and putting them in a state of comparative wealth. A letter had been addressed to him (Lord Elcho) by the honorary secretary of the Working Men's International Exhibition to be held next year, of which the First Minister of the Crown was president and the Lord Lieutenant of Ireland vice president, requesting his attention to a Notice of Motion on the Patent Laws for the 1st of June, and desiring him to use his influence to resist any efforts which might be made in the interests of capital to abolish those rights of inventors which, notwithstanding all the defects of the process by which they were secured, were felt to be the only practicable and 918 available means of rewarding inventors. The reason of the letter being addressed to him was simply this—Some two or three months ago he was waited upon by a deputation of working men connected with the International Exhibition of 1S70, who asked him to take charge, this Session, of a Bill to protect their inventions at the coming Exhibitions. He promised to do so; and a Bill was in preparation which would be framed on the precedent of the Exhibition of 1851, supported as it was by a similar measure in 1862. He confessed that he deemed it desirable, in the interest of inventors, that the Government, instead of hastily adopting the measure of the hon. Gentleman, would favourably consider the letter to which he had alluded. He felt great difficulty in the distinction which had been attempted to be drawn between a book and an invention.
§ MR. SAMUDA
said, there was one point of view of the subject before the House which had hardly been touched on in the course of the debate. He had not heard it stated whether the patentees themselves were really gainers or not by the Patent Laws; and this alone should cause the House to hesitate till they had ascertained the effect of those laws on the prosperity and prospects of inventors. He had often heard it argued that patentees were by no means as a whole gainers by their inventions, owing to the cost and trouble they were at to secure protection and develop their plans. This should not be lost sight of in considering the question, because, if the patentees were found to be losers and the public not gainers by the present system, the House would it-self be carried very far towards the conclusion expressed by the Motion of the hon. Member for Leith (Mr. Macfie). Another point appeared to him to be of very great importance; and that was this—Supposing it should turn out, as he believed it would, that the inventors had not been prosperous under the Patent Laws, and that the country had been damaged by patents, it became a very serious question whether this failure ought not to be attributed, in a great measure, to circumstances surrounding the administration of the Patent Laws, which he fancied were at the root of the mischief, and the removal of which might change the complexion of the whole question. For instance, it was 919 well known that many patents were taken out, not so much with a view to profit or even with a view to working, but simply in order to obstruct the action of a bonâ fide inventor and prevent him fretting the benefit of his invention. When any subject was fixing public attention—such as the introduction of the screw propeller, improvement in rifles and the like—the regular patent-monger was always to be found applying for patents on these subjects, and wording his title so as to cover all or most of the improvements that were likely to be worked out between the date of his patent and the time allowed to specify; and if he could succeed in ascertaining particulars of any improvements whatever matured by others in this interval, he was in the position to insert them in his specification, which the wording of his title enabled him to do, and the priority of his date gave him the advantage of doing. No greater nuisance was known to manufacturers than these "fishing patents," as they were called. The genuine inventor was met at every turn by them—harrassed—interfered with and generally compelled to buy the holders of them off to avoid serious litigation and certain loss, if by not doing so he were driven to contest the validity of the abstracted invention. In his own view the invention of a machine and the invention of a book were similar; and if no public mischief resulted from it the inventor of a useful machine had as perfect a title to be protected in the result of his brains as had the author of a book; but he would not have the road constantly stopped by these purloined and sham inventions. He asked that an accurate investigation of the whole subject might precede any action by Parliament; because even if the only result desirable were an amendment of the law, inquiry was necessary to show in what respects the law required amendment. If the extent of the obstruction caused by the patents to which he had alluded, and the extraordinary lengths to which the law was stretched by the Judges could not be remedied and were found to be sufficient to justify the abolition of the Patent Law, he would let it go. The hon. Member for Sheffield (Mr. Mundella) and those who sided with him must not, however, think that the country would suffer by inventors 920 taking their inventions across the water to other countries, as a consequence of the abolition of the Patent Law, because in those foreign countries where the invention was taken to it would be protected, while here it would be at the service of every manufacturer in the kingdom.
THE ATTORNEY GENERAL
said, the House must assuredly feel indebted to his hon. Friend (Mr. Macfie) for bringing forward this subject. They had heard able speeches on both sides; but when he reminded hon. Members that this was the first debate, so far as he was aware, in which the general principle of the law had been discussed, he thought he had said enough to show that it would be somewhat premature to come to a conclusion upon this important question. In fact, he doubted whether even the hon. and. learned Member for Richmond (Sir Roundell Palmer) was prepared to say we were in a position to abolish the Patent Law; and the hon. Member for Leith (Mr. Macfie) seemed not to go the length of his own Motion, because he had talked of State remuneration to meritorious inventors, instead of allowing them, as at present, a monopoly under the Patent Laws; but, with respect to this, he submitted that it was impossible for the State to value an invention at its first exhibition; the value could only be ascertained by experience. The Report of the Patent Law Commission said that no rule could be laid down for estimating the value of a patent. That part of the scheme of his hon. Friend was, therefore, he thought, altogether inadmissible. He concurred with the noble Lord, who had spoken some little time previously (Lord Stanley), that it would be extremely difficult—he thought it would be very invidious—for the State or any public functionary to make a selection of patents and say— "These are approved and these are rejected." If such an attempt wore made, the certain result would be that, while many bad inventions were subsidized, many of the most valuable would receive nothing. Without discussing the somewhat subtle metaphysical distinctions which had been drawn between the principle of the Law of Copyright and the Law of Patents, he would observe in passing that it seemed to him that there was a strong analogy between the effort of mind, by which Adam 921 Smith discovered the laws which regulate the wealth of nations, and that by which Professor Wheatstone discovered the laws which regulate electric telegraphy. Again, was there no such thing as literary invention? Was not the construction of the plot of a play as much an invention as the construction of a machine? Was there not sometimes as sharp a competition for the appropriation and adaptation of a French plot, as for the appropriation and adaptation of a mechanical contrivance? Putting the question on the broad ground that the object of the Patent Laws was to encourage by, perhaps, a high, although very uncertain, reward, the production of inventions, he would ask—had the law had this effect? He could not help thinking that the effect had been too great—that they had been too successful in encouraging inventors, so much so that they had produced a large number of inventions running the same route, and treading on each other's heels. The nation had held before workmen a reward for their inventions, and he thought they ought seriously to consider what would be the result if they entirely took away the stimulus to invention. He thought it would be a dangerous experiment, and one that should not be attempted, without further and fuller inquiry. He admitted that there were great evils in the working of the present system, but the conclusion at which he had arrived was in opposition to that of the noble Lord (Lord Stanley), and the hon. and learned Member for Richmond. On the whole he thought the Patent Laws did more good than harm. It had been asked whether they could not be amended? He did not see why they could not. At all events, he thought an effort should be made in the way of amendment, before they listened to a proposition to abolish them. The Commissioners, amongst whom wore Lord Stanley, Lord Overstone, Sir William Page Wood, Sir William Erle, Lord Cairns, Mr. Fairbairn, and other eminent men, in their Report, had made various recommendations with respect to the improvement of the Patent Laws, and in those recommendations he entirely concurred. One of the recommendations was that a careful inquiry should be made, under the direction of the Law Officers of the Crown, as to whether there had been 922 any previous documentary publication of a similar invention, and that if there had the patent should be refused. He was far from, saying that the inquiry should stop there, but still he believed that such an investigation would result in great public advantage. It had been further suggested that a patentee should be required to deposit a model, as well as a specification of his invention. Believing, as he did, that the multiplication of patents was a very serious evil, he, in conjunction with his learned Colleague, had taken upon himself, since he had been in Office, the responsibility of stopping many patents of a frivolous character, and he should be glad if their powers of rejection were increased. Serious, and he believed, well-founded complaints had been made with respect to the enormous expenses attendant upon patent litigation, and upon this point the Commissioners had suggested that patent cases should be tried, not before a jury, but before a Judge to be appointed for that especial purpose, assisted by one or two scientific men as assessors. The whole subject was one which deserved the best consideration of the Government, and of the House; and he saw no reason why some hon. Member who was interested in the subject should not, in the course of the present or of the next Session, move for a Committee of that House to inquire into it, and to ascertain how the Patent Laws might be amended. In conclusion, he would remark that the working classes, who had been truly described as having the deepest interest in this subject, were opposed to the abolition of the Patent Laws. He had received a deputation the other day which he believed represented the working classes in the different parts of the country, and that deputation was unanimous in deprecating the Motion which was now before the House. Although they admitted that the Patent Laws required modification, so far from desiring those laws to be abolished, they appeared to think that facilities for obtaining patents should be increased. He trusted that, under all the circumstances, the House would be of opinion that the Motion of his hon. Friend was premature, and that his hon. Friend would withdraw it.
§ MR. DENMAN
said, that while agreeing with the Attorney General that the Motion was premature, he confessed 923 he was a little disappointed in not hearing what were the intentions of the Government in respect of the question. It was clear that the Patent Laws required very considerable alteration and amendment, and he wished the Government had at least promised that they should be considered by a Committee of the House with a view to legislation. The subject had been inquired into by the Commission only, and that Commission had not entered into the whole question. Still they came deliberately to the conclusion that they could only report on the basis of a Patent Law substantially the same as that now existing, and they only reported in favour of certain alterations. But the principal witnesses examined by the Commissioners consisted of patent agents, officials, persons thoroughly acquainted with the administration of the law, and great patentees, almost, if not altogether, excluding the element which had played a considerable part in this night's discussion-he meant the interests of the working men, the inventors. All lawyers who had anything to do with patent trials knew that very often the gentlemen who obtained the benefit of the Patent Law was the mere capitalist. His hon. and learned Friend the Member for Richmond (Sir Roundell Palmer) cited one or two cases of which he (Mr. Denman) had some knowledge from being concerned as counsel in the cases. The hon. Member for Bedford (Mr. J. Howard) took a different view of these cases, and quoted some of them as if they negatived the argument of the hon. and learned Member for Richmond. He quoted especially one, the corn-grinding ease, which cost some £100,000; and seemed to think that the hon. and learned Member for Richmond had made a mistake in citing that case, for he said that Mr. Bovill had made a discovery which would not possibly have been made for centuries but for the Patent Laws. Mr. Bovill, in fact, had the wit to see the value of the invention, but he admitted twenty years ago that the idea was not his own; but that he adopted it, after having seen its operation abroad. He thought that the House ought to receive from the Government a more explicit-declaration of what in their opinion ought to be done, and of the manner and time when it should be carried out.
§ Amendment, by leave, withdrawn.