§ Order for Second Reading read.
§ MR. CHAMBERLAIN, in rising to move that the Bill be now read a second time, said, that he need not make many remarks upon the second and third parts of the Bill, which referred to the registration of designs and trade marks. Those parts contained provisions that involved details of importance; but still they were details, and did not raise any question of principle. Speaking generally, the discussion on those parts of the Bill might be better taken in the Grand Committee than they could be in the House. With regard to designs, he might mention that there were six Acts which the Bill proposed to consolidate; of these the two principal ones were 40 years old; and there had arisen under them a number of little questions which it was desirable to settle. According to the present law, there was a two-fold 350 classification of designs, as "ornamental" or "useful;" and the latter classification had been largely used in order to obtain what might be called a cheap patent, because under this provision a mechanical invention could be registered for a period of one year's provisional, and three years' complete registration, for a sum of £10. Practically, registration under these provisions constituted a patent for four years for the sum of £10; but as this Bill, in the changes it would effect in the Patent Law, would now give to an inventor a patent for four years for £4, it did not appear to be desirable any longer to keep up this distinction. Accordingly, it was proposed in the Bill to have one classification of any novel design. At present there were provisional and complete specifications. The object of provisional specification was to enable a novel design to be submitted to buyers to see whether it was saleable before the inventor proceeded to complete registration. That arrangement had not worked well, and it was thought it would be better and simpler to allow the owner of the original design to leave at the office, not, as now required, an exact copy of the design, but a representation of it sufficient to identify it. Upon that being left at the office complete registration would be granted if the design were original. It therefore seemed to be unnecessary to continue the granting of provisional registration. The present term of the registration varied from nine months to three years, and the Bill proposed a uniform term of four years. The largest number of designs were in the cotton printing trade, and the manufacturers complained that the present term of three years was rather too short; and four years appeared to be a satisfactory average term. With regard to fees, no mention was made in the Bill; but at present the fees varied from 1s. to 20s. for each specification. It was proposed to reduce them to two fees—one 1s., and the other not exceeding 10s. There would be a branch office for registration at Manchester, where a large number of designs were registered. In the present arrangement there was a class for sculpture, which would be abolished. Only three objects a-year had been registered in it on the average of the last five or six years; and on conferring with leading sculptors he 351 found that they did not value the arrangement at all. The alterations as to trade-marks would be still fewer. The Acts affecting them were more recent, the principal one being passed in 1875. The principal change was in the definition of trade-mark, which would be considerably extended so as to include, for instance, a fancy word, and also brands such as were used in the tobacco and cigar trades. Power was taken to clear the register of complications resulting from trade-marks that had not been proceeded with. A proposal had been made by the hon. Member for Salford (Mr. Arthur Arnold) to give to trade-marks indefeasible registration after five years. At present registration of a trade-mark was primâ facie evidence of the exclusive right of the owner to the user, and after five years it was to be conclusive evidence; but the Court had held that it might still be attacked on the ground that the original registration was illegal or improper, and that the Registrar might have passed the marker per incuriam, or through negligence or fraud. The hon. Member proposed that five years should give an indefeasible right. He was unable to agree to that, because, either by negligence or collusion, a trade-mark which was at present the common property of a whole trade might get upon the register, and be attributed to a particular person. He might not use it or call attention to the fact. His competitors in the trade might not be aware of it; and it would be very hard if, after waiting silent for five years, he should then be able to assert an exclusive right to what hitherto had been a universal property. He now came to the most important and most interesting provisions of the Bill—those, namely, which related to the Law of Patents. He did not think it necessary to argue at any length in favour of a Patent Law; but he might remark that in recent years there had been a very great change of opinion on this subject. In the year 1865, when a Commission was appointed to examine the question, there was a strong feeling against granting monopoly rights to inventors, and the Commissioners were evidently impressed with the objections then urged; but most people now held that some sufficient and adequate reward should be assured to the inventor by means of a temporary monopoly. The country benefited by 352 invention, and everything that stimulated invention was, therefore, advantageous to the community. No one had put the case for the Patent Laws more strongly than Sir Frederick Bramwell. That gentleman had pointed out, in a valuable Paper read before the Society of Arts, that most inventions were made by poor men, and by outsiders to the trade to which their inventions applied, and that inventors were not usually in a position to work their inventions, but had to take them to manufacturers and capitalists, who had the means and appliances for working them. If there were no patents the tendency of the manufacturers would be to let well alone, and they would not take the risk or cost of the changes involved in making improvements, except under the fear of competition or with the assurance of a satisfactory profit. So far from patents acting in restraint of trade they really developed it. Sir Charles Siemens had said, on one occasion, that he was so convinced of the fact that the Patent Law led to the development of trade that if a patent were found lying in a gutter, it would be in the interest of the State to take it up and assign an owner to it in order that it might be worked. At any rate, it could not be said that patents barred the way to other inventions. The first patent sewing machine, for instance, was immediately followed by a score of others; the Bessemer furnace had been the subject of several patents that would otherwise have never been heard of, while the discoveries of Edison and Swann had developed an extraordinary and unexpected amount of inventive talent. The late Master of the Rolls, whose death all deplored, and from whom he received great assistance in framing this measure, had told him that he never knew a bad invention stand in the way of other discoveries. A good invention might now and then retard subsequent discovery; but the provisions of the Bill with respect to compulsory licences would effectually remove the chief inconvenience that was now the subject of complaint. He might proceed, then, on the assumption that the House would grant the necessity of a Patent Law, and would pass to the objects the attainment of which was specially desirable. The objects of a good Patent Law appeared to be four-fold. In the 353 first place, the protection granted should give adequate protection to the inventor without creating an undue monopoly In the second place, the cost of obtaining patents should not be so great as to put them out of the roach of any class of inventors; in the third place, the protection should be as real and effectual as possible; and, lastly, where litigation was inevitable, it should be both cheap and efficient. As to the first of these objects, the Bill did not make any change in the duration of patents; but an important change was proposed with regard to the extension of patents. The Commissioners of 1865 were unanimously in favour of the existing term of 14 years, which was also about the average term in foreign countries. In most foreign countries there was a classification of patents, and they were granted in Franco for 5, 10, and 15 years; in Russia, for 3, 5, and 10 years; in Italy and Austria, for terms varying from 1 to 15 years; in Spain, for 5, 10, and 20 years; in the United States, for 17 years; and in Germany, for 15 years. In all these oases the patent expired with the earliest of any foreign patents for the same invention; but in the present Bill he had repealed this provision, and the term of 14 years was independent of the duration of foreign patents. All things considered, it was best for the interests of the English manufacturer to tempt him to take whatever protection the foreign laws afforded him, and not to prevent him from doing so by making the term of his English patents conditional on the term of foreign patents. The term of 14 years was, of course, arbitrary; but it had existed since 1852, and he proposed to leave it unchanged. Changes, however, were introduced by the Bill in the extension of patents. At present the Privy Council decided every application for an extension upon certain rules which were practically laid down, although they did not exist in any legislative enactment. They considered, first, whether the inventor had made a sufficient profit from his business—that was to say, they took into account the profit he made in his business independently of any profit in his patents. That seemed to him altogether unfair. What was wanted was the securing of the reward for the invention. Another rule that had prevailed with the Privy Council was that where it was shown that the 354 inventor had made a sum of £10,000, in that case no application should be granted for the extension of a patent. That seemed to him an arbitrary rule, for while a sum of £10,000 would bean enormous profit, say in the case of the invention of a window-fastener, it would be an insufficient reward for such an invention as that of Bessemer, who had revolutionized the whole iron industry. Under these circumstances, he proposed to introduce in Sub-section 4 of Clause 25 a provision which should be a direction to the Judicial Committee to the effect that they should have regard to the nature and merits of the invention in relation to the public, to the profits made by the patentee as such, and not by the ordinary course of his business, and to all the circumstances of the case; and he hoped this would meet the complaints which seemed to him to have some foundation in regard to this matter. He came now to the most important question of all — the question of fees. They had not interfered in this Bill with the amount of the second and third payments now demanded by law; but they had deferred the second payment until the fourth year, giving one year longer. They had extended the term of provisional protection from a nominal six months, though practically only four, to 12, and in some cases to 15 months. They had reduced the fee for provisional protection from £5 to £!, and the first payment for a patent from £20 to £3. The total reduction was from £25 to £4, for which sum an inventor might get a patent good for four years. Adding to that the second and third payments, £154 was the total sum for which an inventor could get a patent for 14 years. Before 1852 the fees were £300. Since then they were reduced to £175. In Lord Cairns's Bill, in 1878, no alteration of fees was proposed; in the Bill of Sir John Holker, in 1877, the first payment was reduced to £12 10s., the second payment was increased to £55, and the third to £110—total of £177 10s. Now, what would be the cost of these proposals to the Exchequer? In 1882 there were 6,241 applications for patents; the total receipts were £202,000, and the expenditure £40,000. In 1884 he estimated that the number of applications would be increased by nearly 50 per cent; on that estimate the number of applications 355 would be 9,000, and the total receipts would be £62,400. The reason why the receipts would fall off so much was that they would get no second payments that year, having postponed them for four years instead of three. There would be an illustrated journal; and as better indexes and other improvements would be made, the expense to the Exchequer was estimated at £60,000, and the present profit to the Exchequer, supposing the applications increased 50 per cent, would be reduced from £160,000 to £2,000, which was really no margin at all. For 1885 the receipts were estimated at £122,000, and the loss of income would be reduced to £80,000. In 1890 the loss of income, he estimated, would be only £40,000—that was to say, the receipts would have increased to £l60,000; but whether they should still be taking the same fees in 1890 was a question on which he offered no confident opinion. The immediate effect of the Bill would be to give a very large boon to the inventor, and practically to make the Patent Office, instead of yielding a large revenue to the State, yield no revenue at all. After consultation with his Colleagues, and especially with the Treasury, lie made these proposals, he must frankly say, as the best it was in his power to make; and he could not undertake to accept, on behalf of the Government, any Amendment which, at the present time, would lay a heavier burden upon the Exchequer. He noticed that the Amendment on the Paper in the name of the hon. Member for Glasgow (Mr. Anderson) had been withdrawn; and he took that as an indication that his hon. Friend would not press it so as to endanger the passing of the Bill. He was quite prepared to admit that there was a great deal to be said against large payments; but the change proposed in the Bill was so great, and the benefits conferred so large, that he thought his hon. Friend had acted wisely, and that the working classes generally would declare that what was offered should be taken without further delay, although without prejudice to future claims. The effect of the large payments at deferred periods had not, he thought, discouraged invention. He had no proof that they had. But he had no doubt that the first payments did discourage invention, and were an insurmountable 356 obstacle in the way of the poorest inventors. But when a poor inventor was able to get protection for £1 for 12 months, and to obtain for £4 a patent good for four years, he was not likely to be discouraged. He did not believe that if there was a useful invention, persons would not be found in the course of four years to advance the necessary money for the other payments. On the other hand, those largo deferred payments would have a useful effect in weeding out useless patents. The second payment killed two-thirds of all the patents, and the third payment killed 19 per cent of those left, leaving only 11 per cent, which went on for 14 years. The fact was that a great number of patents had lived their lives by the end of four and seven years, and it was undesirable that they should continue to stand in the way of other improvements. He had seen the English system contrasted unfavourably with the American; but he doubted whether the comparison was fair or complete. At all events, there was the curious fact that foreigners had recourse to English Patent Law in remarkable preference to that of America. He found that in 1882, in the United States, out of 16,584 patents 995 were foreign, or only 6 per cent; but in the United Kingdom out of 5,751 patents 2,139 were foreign, or 37 per cent. The conclusion he drew from this was, that those foreigners who took advantage of our despised law did not think it worth their while to take advantage of the American Patent Laws.
§ MR. PARNELLasked whether the right hon. Gentleman knew how many of these foreign patents were American?
§ MR. CHAMBERLAINsaid, he could not at that moment answer; but a very large proportion came from the Continent, chiefly from Germany and France. In connection with the question of the cost of patents, it had been pointed out that the charges of the patent agents were often more considerable than the fees; and, accordingly, in the present Bill an attempt had boon made to simplify procedure; and thereby lessen this cost. At present no less than seven personal applications had to be made at the Patent Office to secure a patent; but under the new Bill that number would be reduced to two, and forms would be provided at the post offices by which any inventor who could intelligibly de- 357 scribe his invention would be able to transmit his application for a patent by post, without being compelled to leave his work if he were a working man. There would be a £1 stamp on the application for provisional protection, and a £3 stamp on the application for a patent. These were the arrangements of the Bill with regard to fees; and he had only now to add, in reference to this part of the subject, that provision had been made for altering and reducing the fees with the consent of the Treasury if it should appear advisable. Under the present law the fees were statutory, and could not be altered without fresh legislation. He went on to consider the third object of a good Patent Law—namely, the security which a patent should afford to its owner. In reference to this, he had considered, in framing the Bill, how far it would be possible to institute an examination into the novelty of the alleged invention before the patent was granted. There were, however, many difficulties in the way of such an examination. If it was to be effective it must be an examination in every case, and it must be conducted by the most experienced persons, because it frequently happened that valuable patents had been partly anticipated, and nobody but the most practised experts could decide on their validity. He might instance the cases of "Bessemer's furnace" and "Betts's capsules"—cases in which the differences between those and previous patents appeared to be slight, but where the patents were, after litigation, properly upheld. The expense of such an examination would be enormous, for it would be necessary to supply the investigators with the evidence of the most skilled persons, and in this fact was to be found the explanation of the costliness of patent litigation. The interests involved were often vast, and the subject-matter of a highly complicated character. The examination, therefore, for novelty, if it was to be adequate, would practically involve a costly litigation in every case, instead of in the few cases in which it now happened. If they gave up the idea of a thorough investigation they must necessarily have a perfunctory one, with all its unsatisfactory results. This was the experience of the American system, to which he had already referred. They had in the United States more 358 than 100 Examiners; and yet it was stated in The Engineer, in an article on this question, that—
Not a week passes in which the Examiners do not pass old inventions as if they were new. A very clever American writer, some time since, devoted a paper to a single subject— namely, the incompetence of the Examiners in one department alone—clock and watch-making; and he published a stupendous list of American patents, every one of which had been anticipated.But this was not the worst result to be anticipated. If the examinations were lax, and allowed inventions to pass which had been anticipated, the harm done would not be very great; but what was to be feared was that the Examiners would reject inventions which ought to be the subject of a patent. They might stifle the inventive genius of the country in accordance with the crotchets of a few permanent officials, or they might even, as he understood had actually been the case in the United States, make the grant of a patent dependent on the voice of persons who might be accessible to interested motives. He was convinced that the inventors of the country would never accept any system which left them absolutely at the mercy of a select class of official Examiners. But it had been suggested that the result of such an examination should be endorsed upon the patent, but should not prevent the patentee from proceeding at his own risk. This would practically come to the same thing as the rejection of the patent, as no manufacturer would deal with a patent so endorsed. Again, it had been suggested that such result of the examination should not be endorsed on the patent, but should be privately communicated to the inventor. That was a proposal of a very specious character; but there were serious objections to it. In the first place, the examinations must necessarily be confined to previous specifications, and would not include the cases in which the invention had been anticipated, though it had not hen previously patented. Then it must not be forgotten that the examination suggested could be far better made by the inventor himself, who could tell much better where to put his finger on previous specifications affecting his own than any other person. Lastly, he did not see why the Government should make an exception in favour of the inventor, as compared with every other per- 359 son, and exercise a paternal care for him, and assist him in his own business, taking upon themselves, in fact, the duties of a patent agent. Sir James Stephen suggested that to do so would he very much the same as for a Court of Justice to advise a suitor whether or not he had a good cause of action. But the Government would give the inventor every faculty in prosecuting his search, although they could, not take upon themselves to make it for him. The examination under the Bill would be confined to seeing that the invention was a proper subject for a patent, and that the description was sufficient and accurate, and that the complete and provisional specification substantially agreed. The last object they had in view was to cheapen and render more satisfactory the process of litigation where it had to be resorted to. Proposals had been made at different times that a special Judge should be appointed for the administration of the Patent Law; but he thought the whole tendency of public opinion was against the appointment of special Judges, and, under those circumstances, no proposal of that sort was made in the Bill. He believed, however, it was almost certain that patent cases would be put into a separate list, and that the Judges who felt themselves best qualified to deal with them would probably select that list and hear the cases. A complaint was made of the present system that under it a case had to be brought before a Judge who had to be taught in open Court by counsel, often as ignorant as himself, the technical merits of the subject. To meet this objection he proposed that either the Court itself or either of the parties without the Court should have the right of claiming that an Assessor should be appointed to assist the Judge. The Assessor so appointed would be paid by the Government just as a Judge was paid. There was also a new provision as to disclaimer. Where no action was pending, and the patentee desired either to amend his specification or disclaim any part of it, he could do so by leave of the Law Officer. Where, however—and this was the new portion to which he called attention—an action was pending, they provided that the patentee could by leave of the Court disclaim, and that the action might still be continued; but it was provided, in 360 that case, that no damages should be obtained for any previous infringement of the patent, unless the inventor showed his original claim was made in good faith and with reasonable skill and knowledge. The principle of this provision was that the inventor who knowingly or carelessly claimed bad matter was not an object of sympathy. On the other hand, an infringer who knowingly infringed the good and valid part of a patent because he had discovered some portion, perhaps unimportant, which was bad or invalid, was not entitled to sympathy or protection; and, accordingly, he had provided that while, in the first case, the inventor would lose the advantage of his patent until he had amended his claim, in the second case the infringer might be made to suffer and pay damages for his infringement without benefiting by the technical defects or misdescription of the patentee. The next point was the question of licensing. Their position was that, while the inventor was entitled to a reward, he was not entitled to anything in the nature of unreasonable monopoly; and it had been pointed out, especially in an interesting Memorial presented on behalf of the chemical industry, that under the present law it would have been possible, for instance, for the Gorman inventor of the hot-blast furnace, if he had chosen to refuse a licence in England, to have destroyed almost the whole iron industry in this country, and to have carried the business bodily over to Germany. Although that did not happen in the case of the hot-blast industry, it had actually happened in the manufacture of artificial colours connected with the coal products, and the whole of that had gone to Germany, because the patentees would not grant a licence in this country. In this and similar matters the patentee was only the first discoverer. Others were working on the same lines, and it was only a question of time which would arrive first at a satisfactory result. It was all very well to reward the first inventor; but it was not necessary nor just to give to the first inventor an absolute right of monopoly, which might be used for purposes of extortion, or to the injury of the country which granted these rewards for invention. Accordingly they had put in the Bill—Clause 22 —that where the patentee had been shown to have refused to grant a licence 361 on reasonable terms, and that, as a consequence of such refusal, the patent was not being worked in the United Kingdom, or the reasonable requirements of the public in regard to the invention could not be supplied, or that any persons were prevented from working other inventions to the best advantage—The Board of Trade may order the patentee to grant a licence on such terms as, having regard to the nature of the invention and the circumstances of the case, the Board of Trade may deem to be just.Besides these, there were a number of minor provisions in the Bill. As regarded the Patent Museum, they proposed that it should be transferred to the Science and Art Department, with a power to demand from any inventor a model of his invention, paying a fair sum as the cost of such model. They proposed that an illustrated journal of inventions should be published by the Patent Office, containing not only a drawing of the chief inventions, but also a report of patent actions, and other matters specially interesting to patentees. They proposed a penalty for the use of the Royal Arms without a licence, because of the abuse of the Royal Arms in the case of certain patent agents, owing to which, in a great number of cases, inventors had been deceived by thinking they had been attending a Public Office, while all the time they had been incurring heavy charges in the private office of a professional person. He would only say, in conclusion, that the Bill proceeded upon the assumption that an inventor was a person to be encouraged, and not repressed, for he was a creator of trade; and, accordingly, they desired in every way in their power to stimulate his inventive capacity and the capacity of others similarly situated. The object was one in which he took a deep interest, having had some experience of patents, and knowing the obstacles in the way of inventors. He had observed that his own borough, in proportion to population, was the most inventive place in the United Kingdom. But the matter was not of interest to himself alone, or the borough which he represented; it was a matter of general interest and importance. There was no article which we used, there was nothing connected with the necessities of our life, or that contributed to the health or happiness, or security of the population, which had 362 not, at some time or other, been the subject of a patentable invention; and, accordingly, he would be very glad indeed if, with the assistance of the House, he was able to do anything to stimulate the inventive capacity of the people, and to add in that way to the resources and the prosperity of the country. He begged to move that the Bill be read a second time.
§ Motion made, and Question proposed, "That the Bill be now read a second time."—(Mr. Chamberlain.)
§ MR. ANDERSONsaid, the right hon. Gentleman had correctly described his motive in withdrawing the Amendment which he had on the Paper up to the last day or two. He felt that to press that Amendment to its just conclusion would be to imperil the Bill; and as he recognized much that was good in the measure he was very unwilling to move its rejection on the second reading. Still, he was not without hope of getting some amendment in the Grand Committee, notwithstanding what the right hon. Gentleman said about the determination of the Government. He congratulated the right hon. Gentleman upon the advance he had made in this matter, which, he dared say, was the result of the communications he had alluded to with Sir George Jessel, because both the Bill and the speech they had just heard were far more liberal than he (Mr. Anderson) had been led to expect from the speech of two years ago. He thought some of the changes proposed were excellent. He did not know that, to a large extent, it would be possible for inventors to do without the patent agent; but it was, at least, a very considerable thing that applications might be made by post, and on a very small number of forms. The extension of provisional protection, he thought, was also an exceedingly good provision. It had long been asked for, and they were glad to see it. As regarded the obligation to licence, there was a good deal to be said on both sides of that question. It might be said that the capitalist would not be likely to buy an invention, or to assist a poor man in taking out a patent, if he were not afterwards to be allowed to do what he pleased with it. The other side said that when the public gave a monopoly it should not be an exclusive monopoly, 363 but one held with fair consideration towards the public, and therefore giving the public a reasonable use of it. The right hon. Gentleman referred to one important case, and he could mention another, which was well known to the hon. Member for Dumbarton (Mr. Orr Ewing) —namely, the manufacture of alizarine, a licence for which the Germans refused to grant to this country, in order that they might keep the monopoly in their own hands. He said that, upon the whole, the balance of opinion was in favour of compulsory licences. There was one very great change in the Bill which the right hon. Gentleman gave now, but which he had spoken against two years ago; and that was, taking away the management of the Office from the Law Officers. He (Mr. Anderson) had proposed at that time that it should be in the hands of three Commissioners.
§ MR. CHAMBERLAINsaid, he had never defended the management of the Office by the Law Officers, because the Law Officers never had managed it.
§ MR. ANDERSONsaid, everything was appealed to them. They were the Commissioners under the Act. Whether the Law Officers managed or mismanaged the Office, the light hon. Gentleman now proposed not to adopt his suggestion that there should be three Commissioners, but to put it into the hands of one Controller. That was meeting them half-way. He himself thought the three Commissioners would be better, because he looked forward to three Commissioners sitting on an appeal against the decision of one; but he was quite ready to accept the Controller. As regarded the duration of 14 years, he was not at all satisfied with the absence of any extension. He thought an extension to 21 years would be a suitable thing. That there ought to be extension was conceded by the late Government, because by the Bill of 1879, introduced by Sir John Holker, and which the right hon. Gentleman had not alluded to, it was proposed to extend the time to 21 years, and make a considerable reduction in the initial fees. But he would be quite ready to accept, as a compromise, an extension to 17 years, which was the period in force in America, and which had been proposed by the hon. Baronet (Sir John Lubbock) and by the Society of Arts. He should certainly endeavour to get the limit ex- 364 tended in the Grand Committee from 14 to 17 years. The right hon. Gentleman dwelt a good deal upon the facility of extension through the Privy Council. He (Mr. Anderson) thought it would be far better to give the power of extension either to the Controller, the Board of Trade, or the Law Officers, rather than perpetuate the present clumsy mode of appealing to the Judicial Committee of the Privy Council. That continuation he considered thoroughly bad; its characteristics were circumlocution and costs. Tie knew of a case where even a claim for extension, that was not opposed, cost £800. In America the Commissioners could extend; he would propose to give that power to the Board of Trade. As to what was said with respect to inquiries for novelty by the Examiners he did not altogether agree; but he would have opposed any such system as that of giving the Examiners the power of veto on the question of novelty. He was also opposed to the American system of endorsing on the patent any objections which the Examiners found. He thought the duty of Examiners ought to be to aid and assist the inventors by pointing out to them previous patents that might prejudice the patent, but without any power of veto. He objected to the provision in Clause 5, that an inventor must state his whole claim at the very first, instead of being allowed to correct it in the final specification. Another thing that would be objected to was public inspection of the final specification before the patent was granted, as that was to invite opposition. He now came to the principal part of the Bill—namely, the fees. The right hon. Gentleman had admitted that the payment of £50 in the third, or, as was now proposed, the fourth year of the invention, would kill off 70 per cent, or, in other words, a poor man was robbed of his invention if not able to perfect it within a period of four years. The same might be said of the payment of £100 after seven years, which killed off other 20 per cent; and why, he asked, should so many be killed off? The fact that only 10 per cent of the patents lived for half the time for which the patents were granted was a proof that the system was bad. Killing off at seven years was simply robbing inventors, and, even for the country, was a short-sighted policy. The charges were too high, and they were faced by this fact, which the 365 right hon. Gentleman could not get over in any way—that America granted for I £7 a patent for 17 years complete; and the Government were proposing, even now, to charge £154 for a patent for 14 years, which appeared to be extortionate. So far as the changes in fees went, they were extremely good, being on the initial stages, and would be an enormous boon to the inventor, whose patents were only to last a year or two; but they would be little boon to inventors who looked forward to their inventions lasting for more than four years, or which failed to be brought to a profitable use within that period. He quite admitted this question had hitherto been a matter of revenue, and, to a certain extent, it must be so considered still; but he was glad to hear the right hon. Gentleman state that if they paid the costs of the Office, that should be enough; but he could not follow the right hon. Gentleman's figures when he said that, by his proposed reduction from £175 to £154, the surplus of £163,000 would be brought down to only £2,000. He had tested the figures in every way he knew how, and could not make anything like that result out of them. It appeared to him that even if there was not a single patent added to the many applications under this Bill as it stood, there would be in the first year a surplus of £14,000, and in the second year of £70,000—that was supposing that the costs did not increase. The right hon. Gentleman, however, said the costs were to increase, and that, of course, would take something off; but not so much as the right hon. Gentleman said. The right hon. Gentleman said he estimated an increase to 9,000 applications, and increase of costs to £60,000; but when he came to test the right hon. Gentleman's figures he could make nothing of them, because in the first year it appeared to him there would be a surplus of £57,000, and in the second and subsequent years a surplus of £113,000. These figures, however, could not very easily be dealt with in the House, and must be left for the Grand Committee; and he should like to see the figures on which the right hon. Gentleman based his calculations before dealing with them. The right hon. Gentleman told them that the Board of Trade might reduce the fees with the consent of the Treasury; but he should like to see some guiding prin- 366 ciple stated in the Statute showing on what grounds they might in future ask for such reductions, otherwise he feared the Board of Trade would never be able to get the consent of the Treasury, because the Treasury was never very anxious to give up anything in the shape of Revenue. The only defence that was ever made for the high charges in England was made by the right hon. Gentleman two years ago, when he stated that the English patent covered as much as three or four American patents. Probably there was some truth in that under the old system; but by this proposal it was not so, because the 31st clause stipulated that the patent should not cover more than one invention, and therefore, in future, it might take several new patents to cover as much ground as one old one; and, if that were so, where was the reduction of fees? That was why the Government should adopt the same fees as were in force in America. Then, again, if there was any surplus from the fees, he thought it should not go into the Revenue, but should go to provide for the erection of the new Patent Office and Museum which the Bill proposed to give power to build. Then, with regard to the subsidiary fees, which were left entirely in the hands of the Board of Trade, he thought it would be well to have some stipulation that they should not be higher than at present, and the same observations applied to fees for trade marks and designs. But he would not now go further into that question, as he thought it would be better that the whole subject should be dealt with by the Grand Committee when the Bill was committed to them.
§ MR. GREGORYsaid, he regretted that the Bill did not go further than it did in the direction of the recommendations contained in the Report of the Committee which inquired into the subject of the Patent Laws, and of which he had the honour to be a Member. The President of the Board of Trade had expressed his regret that he had been unable to go further, and he had pointed out the difficulties which stood in the way of doing so. He (Mr. Gregory) fully admitted the difficulties of the case. But when monopolies were granted to individuals by the State it was bound to see that they were not needlessly extended, and were only granted under proper conditions. The Committee desired, as 367 far as they could, to limit the creation of these monopolies; hut, to his mind, the Bill failed somewhat in that direction. The only matter to be inquired into on the grant of a patent was to be whether the invention was a subject-matter for a patent. He did not know what was meant by that. It might be something, or it might be nothing. In his opinion, it was very desirable that, at all events, the Examiner, acting upon his own knowledge and experience, should point out to an applicant any deficiencies that occurred to him in the utility and novelty of such invention, and the patentee would then proceed with it at his peril. They had it upon the evidence of Mr. Justice Grove that the multiplicity of small patents that were of no general utility had been a serious impediment to scientific discovery and experiment. They wanted, as far as possible, to discourage frivolous patents and experiments which only wasted the time of men who would have been bettor employed in their legitimate business; but he feared that the Bill would rather tend to encourage them by giving a reduction of fees and an extension of time. He did not say that he objected altogether to this; but they ought, at the same time, to see that these facilities did not enable a man to waste his own time and injure the public. He felt that stringent provisions should be laid down by the Examiner or the Controller for the consideration and prevention of frivolous inventions and schemes, which in themselves were of no public utility. He did not think the Government could have gone any further than they had done in the way of reducing fees. They gave absolute protection for £4 for a period of four years; and he thought that period would be ample, in the great majority of cases, to decide the utility of the patent. With reference to the question of licences, which was a very important one, he hoped that would have very careful consideration, because he felt that when they were granting patents that was the time when they should make terms with the patentee, and compel him, on reasonable terms, to grant licences. That was a point which he hoped at the proper time would be closely considered.
§ MR. BROADHURSTsaid, that one remarkable feature in attempted Patent Law legislation was the extraordinary progress made in it by every Minister 368 year after year. Since the introduction by the Attorney General of the late Government of his first Bill on the subject there had been a definite progress in every measure; and, as far as he had followed the subject, that now before the House showed a marked advance on any which had preceded it. He much preferred the proposal of a Controller than a Board of Commissioners, as had been suggested in some quarters of the House. The part of the Bill which interested him most was that which dealt with charges on patents; and he must say that he would have been much more satisfied with the Bill if it had given 14 years' protection for £4 instead, of only four years. He did not think they should seek to make a profit out of the men who, by their genius, were increasing the wealth of the country ten-fold. Indeed, he was not sure that the granting of pensions of £2,000 a-year would not be very much better bestowed upon many of their inventors than in certain other directions. The reduction in cost proposed, however, would meet with general approval. He sincerely believed the proposal of the Bill to give opportunities to inventors to obtain patents without going through the Patent Office was an honest attempt to assist the working inventor. While he heartily supported the second reading, he reserved to himself the right to propose Amendments in Committee, especially with regard to the financial portion of the Bill.
§ MR. JACKSONconsidered that some definition of the subject of a patent ought to have been inserted in the Bill. The right hon. Gentleman pointed out that the number of foreign applications in this country was very much larger than in America. But the fact was that foreigners who were not the original inventors might obtain patents in this country; but in America it was absolutely necessary that the applicants should be the inventors. The proposal in the Bill that the applicant must be the first inventor was an improvement. In America the examination that was held resulted in the rejection of more than 30 per cent of the applications, and that was a conclusive proof that where there was a cheap system it was essential to have as complete an examination as possible. Another very important question was that of compul- 369 sory licences. The right hon. Gentleman had pointed out two cases—those of the German hot-blast and of artificial colours—in both of which patents had been granted to foreigners; but licences were refused by them to have the patents worked in this country. It was quite right that power should be taken that the patents granted should be worked in this country. He did not think, however, that whore a man had made some small improvement he should have power to call upon the inventor to grant him a licence. He approved the proposed alteration of the law, by which in future the applicant for a patent would be required to make a declaration that he was the first inventor. With regard to the question of fees, he thought nothing could be more satisfactory than the fee for the first year; but when the Bill got into Committee he hoped it would be possible to get the fee for the second and third year reduced one-half at least. In America the amount received from fees was about £170,000 a-year, which left a profit on the working of the Office of £50,000 a-year. He thought, therefore, that the figures given by the President of the Board of Trade as to the probable working of the fees would be found to be inaccurate. He commended the Bill, on the whole, as a good one, and as likely to give great satisfaction throughout the country. But there were points of importance which would require modification before the measure could be entirely satisfactory.
§ MR. B. SAMUELSONcongratulated the right hon. Gentleman, not only upon the very lucid exposition he had given, but upon the great improvement which the Bill would effect in the law. He said this with some degree of pride, because he had the honour of presiding over the Committee to which the hon. Member for East Sussex (Mr. Gregory) had alluded, and the recommendations of that Committee were in reality the substance of the Bill. The Committee were unanimous, except so far as those were concerned who were opposed to patents altogether; but that school was now defunct, and all acknowledged that there should be a Patent Law. He believed that the Bill would require amendment in the direction of giving early publicity to the claims of patentees. He did not think a system could be said 370 to be sound which enabled anyone who believed—or, perhaps, it should be said, who did not believe—that he had an invention, to go to the Patent Office and claim a monopoly. That was a point which would require careful examination in Committee. His right hon. Friend the President of the Board of Trade had referred to the numerous improvements which were being made in regard to electric lighting. That matter now occupied many minds; and it was, therefore, of the utmost importance that each inventor should know as soon as possible what the others claimed. The recommendation of the Committee of 1871–2 had been adopted in the Bill in respect to the power of granting licences. The instances in which the absence of such a power had proved mischievous might be multiplied to a great extent. One of the most important provisions in the Bill related to the appointment of Assessors to assist the Judges. The present Lord Chancellor had declared that the expert witnesses who appeared in patent trials were absolutely the masters of the Court, the suitors, and the jury. A suitor would sometimes give au expert a retainer, in order that he might not appear as a witness against him; and there were even some witnesses of this class who would give an opinion precisely in accordance with the views of those who subpœned them. The appointment of skilled Assessors would, however, provide a check to these lamentable abuses. The Board of Trade reserved to itself the power to vary the form contained in the Schedule. That, he thought, should not be left to the discretion of the Board of Trade, but should be dealt with by legislation. It might be worth while to consider whether the period of 15 years, which was adopted in nearly all Continental countries, might not be adopted in this country also; but this was one of those matters of detail which, he thought, might be safely left for the consideration of the Committee. The main principles of the Bill were excellent. It appeared that the entire management of patents was to be in the hands of a Controller, and he supposed that this officer would be subject to the Board of Trade. He hoped that the power conferred on the Board of Trade would be actively exercised. He thought the greatest possible facility should be given to workmen to inspect patents in an Office which was at least as accessible 371 as the present one; therefore, he hoped whatever might be done with regard to models, that the Patent Office would not be transferred to South Kensington. He did not attach much importance to the exhibition of models in museums, for if a man could not understand drawing he would not understand models.
§ MR. STUART-WORTLEYsaid, he congratulated the right hon. Gentleman the President of the Board of Trade on the approximation he had made towards satisfying the public demand for alterations in the Patent Law, so as to give greater facilities to working men by lowering the cost of patents. The right hon. Gentleman had made certain calculations of the effect which these changes would have on the Exchequer. The President of the Board of Trade had access to information on which to base his calculations which others not in his position could not command, and therefore, no doubt, his calculations were well founded; but he (Mr. Stuart-Wortley) thought it ought now to be recognized that the unappropriated surplus in the hands of the Commissioners of Patents was not a surplus upon which the taxpayers had a right to come. The patent fees did not constitute a source to which they should look for an increase of the Consolidated Fund. He hoped that, whether by appropriating the surplus in the hands of the Commissioners or otherwise, they would see in future years another reduction of the charges for patents. Nothing would satisfy the working classes, as all his communications from them showed, but a reduction of the later as well as of the initial fees. It was said that the applications by foreigners for patents were fewer in America than in England. If in England the applications were more numerous, though the fees were higher, the reason must be that there was a better market for inventions, counteracting the deterrent effect of the higher fees. He noted with satisfaction that part of the Bill which dealt with trade marks, and also that the Bill made, so far as his present instructions went, a fairly satisfactory recognition of the claims of the Sheffield Cutlers' Company, and of the public services by which that distinguished Corporation had justified its ancient privileges.
§ MR. HORACE DAVEYbelieved that the majority of the country was in favour 372 of the maintenance of the Patent Law?, though there were, no doubt, many persons whose opinions were entitled to respect who thought that a system of monopoly tended to check invention rather than to promote it, and that it was not the meritorious inventor who made the profits from an invention, but the fortunate person who bought it from the meritorious inventor. But there was a good deal more to be said upon the other side of the question than was supposed. He agreed that the general question as to the expediency of granting patents was not, at the present moment, a practical question; in the present state of opinion it was a question more fit for a debating society than for the House of Commons. But, assuming that Patent Laws ought to exist at all, he thought that the right hon. Gentleman the President of the Board of Trade had, on the whole, taken a right view of those laws, though he differed as to the expediency of those parts of the Bill which ad received commendation from previous speakers. The principles of the Bill were, he thought, in the right direction, for they were the simplification of the procedure in obtaining patents, the diminution in the expense of obtaining them, and the providing greater security for, and giving greater validity to, patents when granted. He thought the right hon. Gentleman had taken a sound view in not directing an examination into the novelty of a proposal for which a patent was asked, for he thought it would be calculated to work a great deal of injustice, besides being illusory and impracticable. He did not understand that the right hon. Gentleman intended by his Bill to make the examination conclusive, but that the only object was to assist the parties to put their patents into a proper form. Another point upon which, he wished to say a few words was one in which he had had some experience, and that was as to the compulsory assistance of an Assessor, which he thought was unnecessary and mischievous. The Judge already had power to call in the assistance of experts; but he had never known a single case in which either party or the Judge himself desired to avail himself of such assistance. It had been said that the Judge and counsel were pretty much at the mercy of an expert witness; but, in his opinion, the allegation was altogether unfounded. 373 He believed, from conversations he had had with various gentlemen, that he knew the source from which that allegation had come, and he believed that Sir Frederick Bramwell had said something of that kind; but he thought, if he might say so, that Sir Frederick Bramwell a little overrated the influence he possessed; for if one side had export witnesses, the other side had them too. So far as his experience went, this proposal was the result of a fear and an apprehension which had no sufficient basis whatever, and the best proof of this was that the Judge had for a great number of years had the power of calling in expert assistants; and yet, as far as he knew, there had not been a single case in which that power had been exercised. As regarded trade marks, the present Bill appeared to him to consolidate the existing law on that subject, while, at the same time, it introduced some novelties about which he wished to make a few observations. It perpetuated the blot of the Act of 1874, which attempted to define what a trade mark was; but that measure was so framed that it was impossible to bring them within the meaning of the law. He wished, therefore, to see some words of a negative character introduced into the Bill which would enact that no person should be allowed to use a trade mark which did not come within the meaning of the Act. He was glad that cognate subjects of this kind were to be grouped together in one Act. He did not think that the patent fees now exacted were too high.
§ MR. WILLSsaid, the Bill, which the right hon. Gentleman the President of the Board of Trade (Mr. Chamberlain) had so fully and clearly explained to the House, was likely to have a very beneficial effect upon future grants of patents, and was also calculated to exercise considerable influence upon the trade and manufactures of the country, and its commercial arrangements generally. In the few remarks he purposed to address to the House, he desired to confine himself to that section of the Bill which had reference to trade marks. The interest of that part of the Bill was, of course, not so great as that of the clauses which related to patents; but it was a part of the Bill which in itself was very useful and important. By trade marks protection 374 was not only given to our manufactures at home, hut also, to a much larger extent, abroad, especially where the English language was not understood, because it afforded a guarantee to the public of the genuine character of the articles they desired to have. The present Bill repealed the short Act of 1875, and the still shorter one of 1876, and also the Rules which had been laid down under them; and it enacted the provisions of those Acts, with some additions and alterations. The present practice of the law was, undoubtedly, unsatisfactory; but there were several defects in the proposal now made by the right hon. Gentleman, and there was also a total omission to deal with some questions of very great importance. He believed the Bill did not go far enough in embodying what were called "decided cases." It did not give a definition of what was known as an open or common trade mark, which he believed to be a great omission in the Bill. Hitherto the Registrar had acted on the principle that where three persons had substantially the same mark for the same class of goods, that mark should be regarded as an open or common one, and could not be claimed by any one trader alone. That was a simple principle, and he (Mr. Wills) thought it might be adopted in the Bill, with certain limitations as to publicity in regard to user. Then the Bill did not go far enough in regard to statutory declarations; and he hoped that, as the Bill would in all probability go before the Standing Committee on Trade, &c, it would be thoroughly discussed and threshed out before that Committee, and that this question, as far as possible, would not be left to be dealt with by Rules of Court. Before last year the Rule was that these statutory declarations were required to be made by all the applicants for the registration of old marks. The new Rules preserved the statutory declaration in the case of transmittory marks; but he did not see why it should be required in that case more than in the case of the original applicant. He had a knowledge of several instances in which the statutory declaration had prevented application for marks that were colourable imitations of other marks; and it formed the only possible check against the registration of another man's trade mark, except that of 375 opposition. Many men who would have made an application if they had dared had been deterred by the fact that a statutory declaration was required. There was another class of registration, which the Bill did not profess to deal with, and that was representative registration. Many traders had a series of labels for their goods. For instance, a distiller had a series of labels, upon which the name of the particular article was loft in blank, so that the same label might be used for gin, rum, whisky, and other articles; but the design was the same for each article, the name of the article itself only being different. If traders were compelled, under the new Bill, to register each label separately, it would be a very costly process; and he might say that for a long time the Registrar only allowed one general registration, with a blank for the name of the goods. He now wanted a separate registration for each article. The question was a very important one, and he thought it ought to be definitely settled by the Bill, and that one general registration should cover each separate article of the series, and certificates be given accordingly. There was one point to which the right hon. Gentleman had very briefly alluded in his speech in moving the second reading of the Bill, and that was the definition of what were called "fancy words." He (Mr. Wills) had looked through the Bill carefully, and he failed to find any definition of "fancy words" as trade marks; and he thought that was a matter which ought to be carefully considered by the Standing-Committee. The last point to which he desired to draw the attention of the House was that he did not find in the Bill anything as to the extension of the system of registration either to the Channel Islands or to the Isle of Man. He hoped, when the Bill got into Committee, a clause would be introduced extending the provisions of the measure to those localities. Altogether, with the exception of the few points to which he had drawn the attention of the House, he was of opinion that the Bill was likely to be a very useful one, and that it would work well for the commerce of the country.
§ SIR JOHN LUBBOCKcongratulated his right hon. Friend (Mr. Chamberlain) on the favourable reception the Bill had met with on both sides of the House. He 376 approved of the simplification of process, and the abolition of the necessity for personal attendance would be a great Boon to many persons resident in distant parts of the United Kingdom. The extension of the term of provisional protection from six to twelve months, and various other portions of the Bill, would also be advantageous. At the same time, other portions of the Bill were open to grave objections. In the first place, he scarcely thought that his right hon. Friend had formed an adequate idea of the very great importance of the Office of Controller of Patents. Considering the great number of patents, and the complexity of the questions raised, he confessed that he was doubtful whether one person would be sufficient to fulfil the duties of the Office satisfactorily. He concurred in the tribute paid by his right hon. Friend to the remarkable ability displayed by the late Master of the Rolls in dealing with patent cases. He had no doubt that Sir George Jessel's action in the matter had been eminently successful; but Sir George Jessel was a very exceptional man, and he believed, with the hon. Member for Glasgow (Mr. Anderson), that there was a great deal to be said in favour of the proposal that there should be three Controllers, one of whom might be learned in the law, another well versed in chemistry, and a third in mechanics. He regretted that the Bill did not contain provisions to that effect; and, seeing that the Controller was to be a subordinate officer of the Board of Trade, he could not help fearing that it was not intended to appoint a person of sufficiently high standing. It seemed to him that they ought to have someone possessing a similar qualification to the Commissioners of Patents in the United States. It would be good economy, in the long run, to get the very best man for such an important work they could possibly find anywhere. Then, as to the question of examination, he did not wonder, seeing how much his right hon. Friend had had to do in the last few days, that he was not accurate in the statements he had made. The right hon. Gentleman said that the Society of Arts proposed in this Bill to have an examination for novelty; but that was a mistake; their Bill contained no such proposal. What was suggested was, that there should 377 be an examination with reference to subject-matter of patents; and that proposal was also contained in the Bill now submitted to the House by his right hon. Friend. But, as he (Sir John Lubbock) understood the measure, it was not proposed that there should be a final examination. He could not help thinking that, as far as the subject-matter was concerned, it might well be asked that the examination on that point should be final. Surely, it was somewhat inconsistent to take foes from poor persons for patents, and then afterwards tell them that they could not have a patent at all, not because their invention was not useful, but because it was not subject-matter for a patent. He thought that was - a question which ought to be decided in the first instance. Then, under Clause 11 of the Bill, any person might give notice of opposition to the grant of a patent. But the clause went on to say—
The Law Officer shall, if required, hear the applicant and any person so giving notice, and being in the opinion of the Law Officer, entitled to he heard in opposition to the grant, and shall determine whether the grant ought or ought not to he made.He wished to know from his right hon. Friend what was meant by a person being entitled to be heard, because the words did not seem to him to be very clear. The Bill provided that the opposition was to be on open documents. He could not help thinking that, in many cases, this opposition would inflict hardship upon the inventor. The opposition generally rested upon the assertion that the invention had already been made, or that it was in use by the person opposing the granting of the patent. Under the existing system, the determination of that point was comparatively easy; because it required the person opposing to show that he knew what the proposal of the patent really was. That was a matter which, under the present system, could be disposed of in a tolerably easy manner. He was afraid, however, that if the Bill passed in its present shape, it would be very difficult in future to get rid of opposition, because it would be a very simple and easy matter for any person to claim a previous discovery of the process for which the patent was claimed; and, in point of fact, the Bill would lead to lawsuits in a great many cases, and place 378 the inventors at great disadvantage. In point of fact, an inventor would find, in many cases, that when he took out a patent he took out a lawsuit also. It was further proposed in the Bill that a patent could only be taken out for one specific invention. As his hon. Friend the Member for Glasgow (Mr. Anderson) had pointed out, that very considerably diminished the boon conferred upon the inventor by the reduction of fees. He should like to know from the right hon. Gentleman, seeing that there was some difference of opinion as to the exact meaning of Clause 31, whether it was proposed to allow more than one claim? If that were so, he hoped his right hon. Friend would not object to insert into the Bill the words "from time to time," which would make the matter perfectly clear. It would be very different if it was intended that there should be only one claim on the part of the patentee; and he trusted that, if that were so, the right hon. Gentleman would reconsider the matter. The invention might consist partly of new machinery, partly of a rearrangement or new adaptation of old machinery, or it might be entirely new machinery. It would seem almost impossible for the inventor of a new and complicated piece of machinery to state, in a single sentence, what it was for which he claimed protection. Suppose, for instance, a person invented a new process and a new machine for making a new product, and He desired to take out a patent. It might turn out that the product was not new, yet the new process and the new machinery could constitute a good ground for a patent. Or neither the product nor the process might be new, and yet, if the machinery were so, the patent would be good. The Americans had a formula that the claim was "for the whole invention substantially as described;" but that would scarcely be permitted here. Again, it was proposed in the Bill that the claim should be made at once; but he (Sir John Lubbock) thought that would be hardly found practicable when they came to put it in operation. A man knew what he had invented, and could put it in a particular specification; but he might be quite ignorant as to what he could claim as his own. To determine this would require special knowledge and an intimate acquaintance with all patents that had gone before. It would be very hard to de- 379 prive him of the advantage of a valuable invention, because some small part, which he supposed to be new, had, in fact, been previously discovered. It was only fair and reasonable, when a man brought forward an invention, that he should have protection, and be allowed a certain amount of time in order to ascertain how far the invention was novel, and what he had realty a right to claim. To some extent, this difficulty was met by the power of disclaiming; but it would be better, however, somewhat to defer the presentation of the claim itself. He was not quite sure whether his right hon. Friend the President of the Board of Trade intended to permit, as at present, more than one disclaimer. If so, it would be well to insert in Clause 18 the words— "From time to time." If not, this seemed a great mistake. Disclaimers were, practically, omissions. It was found, for instance, that some part of a patent was not new; and it was only reasonable, in that case, that the inventor should be allowed to omit it. Surety, it would be very hard to deprive him of what he had been the first to invent or discover; because, in some detail, which he had, so far as he was concerned, discovered, he turned out to have been anticipated. Take, for instance, the case of the telephone and phonograph. It was considered by Mr. Justice Fry that some points of the latter were not sufficiently described; and Mr. Edison was, therefore, allowed to disclaim them. It would have been very hard if he had lost his claim to the telephone; because, as regards the phonograph, his description was misunderstood. The Bill left the state of the law with reference to the Crown unaffected. The present system was, however, very unjust. As regarded the Naval and Military Services, indeed, they stood by themselves; but it seemed very hard that the Post Office, the Telegraph Service, and other Departments should be allowed to benefit by inventions, without rewarding the inventor. Such injustice must necessarily tend to check progress, and, in the long run, defeat its own object. In conclusion, he could only express a hope that the right hon. Gentleman would give the points to which he (Sir John Lubbock) had referred his favourable consideration. There were other parts of the Bill to which attention would, no 380 doubt, be called when they came to discuss the details of the measure in Committee; but, at that late hour of the night, and considering that other hon. Members were anxious to speak, he would content himself with thanking the House for the kindness with which it had listened to him, and with commending the remarks he had made to the consideration of Her Majesty's Government.
§ MR. ECROYDsaid, he would also join in congratulating the right hon. Gentleman the President of the Board of Trade (Mr. Chamberlain) on the Bill, which seemed to him (Mr. Ecroyd) to be a valuable contribution towards the settlement of what were, undoubtedly, very complicated and difficult questions. He thought they would all agree that the Patent Law, in past times, had acted satisfactorily, as far as concerned great inventors, who were able to defend their inventions; but, as regarded those ingenious workmen who were continually developing small improvements, he could not at all doubt that the law had tended rather to repress than to encourage invention. The question of expense was one which pressed most heavily on this class of inventors. He entirely approved of the concessions which Her Majesty's Government made in that respect; but he hoped they might be induced to take a still broader view of this great question, and rather to regard the importance of developing the inventive talent of the working classes, than the more narrow and immediate question of the saving of a few thousands a-year by the Treasury. In the next place, the small inventor had had before him the almost insuperable difficulty of defending his invention in a Court of Law against persons who were possessed of ample means, and who had had experience in litigation of that kind; and it was impossible that he could hope successfully to compete with them. He was disposed to fear that the provisions of the Bill now before the House would not be sufficient to secure the thorough sifting of new inventions for which patents were asked. It must be borne in mind that not only the public and the users of inventions wore harassed by the existence of a multiplicity of unreal patents, but the inventor of small means found this one of the most discouraging circumstances he had to face. 381 He had often been appealed to by workmen who had succeeded in hitting upon some meritorious invention, and who innocently imagined they would have no difficulty in establishing their claims; but he must confess that very few of these men had ever succeeded in reaping the reward that justly belonged to them. They had been discouraged at the outset by threats of litigation. They were further discouraged by the existence of numbers of patents, loosely drawn, and capable of being used to the hindrance of the development of their own inventions; and they feared that, if they once went into litigation, they might very easily dissipate their savings without securing that for which they contended. He hoped, therefore, that, in the future progress of this Bill, the right hon. Gentleman might be able to give some more thorough means of sifting patents in the beginning; and he agreed in the opinions expressed by one or two hon. Members who had already addressed the House, that one Controller would by no means be sufficient to enable such questions to be satisfactorily disposed of. He trusted that the payments required to be made at the end of four years, and at a later period, would be reduced by at least one-half, although there might be some trifling loss thereby entailed upon the Exchequer. He would not, at that hour of the night, detain the House further, having regard to the fact that the Bill was to go before the Standing Committee on Trade.
§ MR. CARBUTTsaid, he was afraid that, at that late hour of the night, it was rather too much to ask the House to listen to him; but he had had some experience of the Patent Question, and, having been a patentee himself, he desired to say a few words. He could not help congratulating his right hon. Friend the President of the Board of Trade upon the measure he had introduced, and upon the great advance he had made in his ideas during the last two years. The right hon. Gentleman showed that he was ready and willing to accept the suggestions which had been made by persons outside. The right hon. Gentleman had seen several Gentlemen whom he (Mr. Carbutt) had requested him to see, and he had availed himself of the information he had received from them. Several Bills upon the subject of patents had been brought in within the last five 382 or six years. One was brought in by Lord Cairns, and two or three by the late Sir John Holker; and he (Mr. Car-butt) thought it would be a great honour to the right hon. Gentleman the President of the Board of Trade if he found, after the attempts at legislation which had taken place, that he was able to settle the question for some years to come. He congratulated the right hon. Gentleman on the provisions of the Bill for simplifying the mode of procedure. He did not think that many people could avail themselves of the arrangement for sending patents through the Post Office; but he thought the right hon. Gentleman had been rather too timid in regard to the reduction of fees. So far as the third payment was concerned, the right hon. Gentleman would have to reduce it very considerably, if he wished to meet the views of the general public. He (Mr. Carbutt) had had a great deal more to do with patents than probably the right hon. Gentleman had; and he believed that if the right hon. Gentleman had been bold in this matter, and had taken the bull fairly by the horns, he would have increased the number of patents very much more than he imagined. He also believed that if the right hon. Gentleman had met the question boldly, he would have found that there would not be a very large falling-off in the Revenue. He had not been altogether able to follow the calculations of the right hon. Gentleman; but he understood the right hon. Gentleman to say that, in 1884, he would only have £2,400 towards his expenses. He wished to point out that the Chancellor of the Exchequer, in making his Financial Statement the other night, stated that he had a large sum at his disposal, of which he intended to appropriate £120,000.
MR, CHAMBERLAINwished to remind the hon. Gentleman that, if the present Bill passed, it would only be three months in operation during the first financial year.
§ MR. CARBUTTsaid, that what he wished to point out was, that the £120,000 which the Chancellor of the Exchequer wished to dispose of might be utilized in cheapening patents, and he did not think the money could be better spent. He was glad the right hon. Gentleman proposed to appoint a Controller; but he was sorry that the Controller was not to be made a suffi- 383 ciently important personage to do away with the Law Officers to the Crown. He entertained very great respect for those Officers; but, at the same time, he thought they had more work to perform than they could possibly get through, and it was most undesirable for them to be continually appealed to in the matter of patents. One clause which he looked upon as a great blot in the Bill was Clause 11. If that clause were allowed to remain in the measure, he believed the new Patent Law would work very badly indeed. No poor man could afford to fight a patent case, because he would have against him a combination of rich manufacturers, who would keep someone watching all patents; and whenever they saw anything calculated to interfere with their trade, as soon as the patent was deposited the invention would be opposed, and if nothing else would carry on the opposition money would. The result would be that, in many cases, the poor inventor would find himself unable to get his patent. The same difficulty existed in the law a few years ago, and people took their inventions to Germany, because the manufacturers hero were on the look-out to fight any new invention. In Germany, a man who deposited a patent was encouraged to go on with it; and, if he was without the money himself, other persons would provide the means for bringing the patent into the market. If this Bill passed with Clause 11 as it stood, he feared that it would make the measure perfectly inoperative by greatly reducing the number of applications for patents; because if a poor patentee was required to fight the question before a Court of Law, they might depend upon it he would never be able to carry out his invention. He was told that the object of the clause was to prevent litigation. Upon the question of litigation he had no means of obtaining information, except from the Paper on the Inspection of Patents read before the Society of Arts by Sir Frederick Bramwell. In that Paper it was stated that, out of a total of 5,000 actions tried in the Law Courts, only about eight were ever brought to an issue upon appeal. The number, therefore, was so inconsiderable, that it was not worth while to endanger the success of the Bill in order to obtain this object. He trusted, when the Bill went into Committee, that the 384 President of the Board of Trade would carefully consider the evil effect of this clause. His own opinion was that, if the clause were left in the Bill, the measure itself would be a total failure, and that, in three or four years' time, no patent would ever be taken out in this country. He should now like to say a word or two in support of the statement made by the hon. Baronet the Member for the University of London (Sir John Lubbock) in reference to the rights of the Crown. Under the provisions of the Bill, no patentee was to have a claim against the Crown. Now, at the present time, both the Army and Navy were constantly engaged in providing new machinery for the purposes of war, and he thought it would be bad policy to restrain inventions. "We were the richest nation in the world, and were quite as well able to pay as any private manufacturer. He, therefore, hoped that some clause would be inserted in the Bill allowing a patentee to have a claim against the Crown, or by means of which some arrangement might be carried out for the granting of licences. He thought it would be most unfair and unjust not to allow a claim against the Crown. At present, in granting a patent, a provision was generally laid down requiring the patentee to forego a part of his fees in such a case as the use of his patent by contractors who were supplying ships of war for the Government. The contractor was compelled to use the patent; and he did not think that compulsion should be exercised, pure and simple, without allowing the patentee the right of receiving payment for his invention. There was another matter to which he wished to call attention, and that was the objectionable character of the provisions in regard to the publication of provisional specifications. He believed that the publication of provisional specifications would prevent improvements from being carried out. An invention would never be brought to a successful issue; and, if it was not brought to a successful issue, they were only breaking the way for someone else; and unless the publication of provisional specifications was entirely prevented, they would very much hamper the manufacturer in his future transactions. He was glad to find that the hon. Gentleman dealt with the question of the publication of foreign patents. There 385 was another matter which had already been referred to by the hon. Member for the University of London—namely, the question of claims. He (Mr. Carbutt) agreed with the hon. Baronet, that it would be utterly impossible for an inventor to state, in the first instance, what it was that he claimed. He knew very well what his invention was; but it was impossible for him to state what it would do, and it would have a discouraging effect to require him to state his claim upon taking out a provisional specification. He thought they might well put away that provisional specification altogether, and enable a man to take out a patent at once, and pay for it at once. Having made these criticisms upon the provisions of the Bill, he was still prepared to admit that the measure, with all its defects, would effect several useful reforms.
§ MR. ILLINGWORTHsaid, he thought the Bill was a very satisfactory one, and he would also congratulate his right hon. Friend (Mr. Chamberlain) both upon the measure and the very able speech he had made in moving the second reading. There were, however, connected with the Bill, one or two points which deserved the consideration of his right hon. Friend. He (Mr. Illingworth) thought the right hon. Gentleman met the inventors—who were comparatively poor men—very fairly in the initial stages of their inventions, by reducing the fees to be paid in the first four years to £4. On the other hand, he thought more forcible arguments against the serious reduction of fees in the later stages of a patent should be adduced than those which had been advanced in the course of the debate. He was of opinion that when four years had elapsed, and the value of the invention had been established, it was not a very great hardship upon the inventor to call upon him to consider whether he was willing to pay a further fee of £50, and ultimately of £100, for the purpose of securing protection. The public were greatly interested in the successful working of the measure now before the House, and nothing was more important, under the Patent Law, than that the registry should be cleared of worthless inventions within a reasonable period, or many inventions of no particular value whatever would remain upon the registry, in the hope that some subsequent 386 invention might render them of value. He thought it was unjust to the second inventor, that he should be hampered by the existence of a useless invention, which was simply hung up in the hope that the inventor might be able to make use of it in connection with some subsequent discovery. In regard to the extension of the patent beyond the period of 14 years, which had been advocated by the hon. Member for the University of London (Sir John Lubbock) and other hon. Members, he thought the period of 14 years was, on the whole, very satisfactory; and the reasons which had been given to the House were not sufficient to justify Parliament in extending the term beyond 14 years. When the information and knowledge of working men were far less than they were at present, they had to be contented with the period of 14 years. He wished, further, to point out one or two of the general advantages which would be derived from not having in this country a period quite as long as that which was provided in other countries; because, if patents in this country expired a year or two before they expired mother countries, it would give the manufacturers in this country an immense advantage in preparing for the start in open competition as against other countries which would be anxious to compete with them in the open market, owing to their being more free than other inventors would be abroad. He did not think the case with regard to the assistance of experts had been left by the hon. and learned Member for Christchurch (Mr. Horace Davey) in a satisfactory position. There was such a thing as the Judge being sometimes at fault in giving judgment upon claims as to which only an expert could assist him in arriving at a decision. There was one other point he would refer to—namely, that relating to foreign patents which had expired. He would ask his right hon. Friend whether patents which had become void abroad, could be taken out anew in this country?
§ SIR EDWARD J. REEDsaid, an inventor ought to learn, from the preliminary examination, whether he was proposing to patent an old invention. He remembered that when he had the honour of serving at the Admiralty, the same inventions used to be submitted over and over again; and of these, it 387 would be no exaggeration to say that the more useless they were, the more often they presented themselves. He objected to the practice by which, when once a patent had been granted, its use was— as in many cases it certainly was— denied to everyone else. It was an acknowledged fact, in the mechanical profession, that the same invention was produced by many persons about the same time. The obvious cause of that was that a large number of inventions grew out of the necessities of the times, and it should not be forgotten that, in granting a monopoly to one person, they thereby probably interfered with the improvements of other people. A case in point came before him a few days ago, of a gentleman in a large way of business, who informed him that he had succeeded in making certain improvements, and had setup machinery to carry it into operation at a cost of £3,000; he had, however, been served with a notice that his improvement was covered by another person's patent, under which he was refused a licence, and the consequences were that he was not allowed to use his own invention at all, the costly machinery which he had erected being thrown upon his hands, and remaining perfectly useless. He would like to see Clause 22 of the Bill carried a little further—namely, to the extent that no person should be allowed to obtain, under the Patent Law, the absolute monopoly of a patent to the exclusion of other people. He would suggest that every person obtaining a patent ought to be obliged to grant licences to any other person, the amount of royalty in case of dispute being decided by the authorities. It was said the Bill contained a novel provision, under which an inventor would not be able to claim for something which was not in the provisional specification. But lie would point out that this was the law at present, and, therefore, no substantial change was introduced by the Bill in that respect. The same might be said of that portion of the Bill which related to the patent only covering one invention; he did not think there was anything in the Bill to prevent any number of claims being put forward, which could be legitimately covered by a patent. As to the question of opposition, the Bill wrought an improvement, by reducing to one, the two hearings 388 before the Law Officers, that were now open to persons who opposed the granting of a patent. He hoped that in Committee, the Compulsory Licensing Clause would be so extended as to entitle every one, on proper payment, to practise any invention.
§ Question put, and agreed to.
§ Bill read a second time.
§ Motion made, and Question proposed, "That the Bill be committed to the Standing Committee on Trade, Shipping, and Manufactures."—(Mr. Chamberlain.)
§ LORD RANDOLPH CHURCHILLsaid, he hoped he should not be thought too pertinacious, if he ventured to bring before the House the question which, had been somewhat discussed before the dinner hour—namely, the extent to which the principle of the Bill might be involved in the Motion to refer it to a Standing Committee. If he might be allowed to do so, he would venture to press Mr. Speaker on this point for some ruling, or, at any rate, indication of his opinion as to what the procedure of the House ought to be in this matter. It was quite clear that, in reference to the Bankruptcy Bill, the Court of Criminal Appeal Bill, and the Criminal Code (Indictable Offences Procedure) Bill, it was in the mind of the House before they were read a second time, that it was the intention of the House to refer them to the Standing Committees. That being so, he (Lord Randolph Churchill) understood that the discussion of those Bills, on the Motion to refer them to the Standing Committees, would have been a breach of the Rules of the House. But the House might have no knowledge beforehand— that was, before the second reading—of the intention of the Government to refer a Bill to a Standing Committee. In that case, it would be a great hardship on the minority to be precluded, by the ruling which Mr. Speaker had given that evening, and which would undoubtedly have great authority with the House in future, from discussing the principle of the Bill proposed to be referred to a Standing Committee, which Bill had not been proposed to be so referred before the second reading. He was not in the least supposing that the present Government would, in any way, 389 take advantage of the House in this matter; but it was impossible to foresee I what might be done by future Governments; and, therefore, it was of the highest importance that a Rule with regard to it should be laid down now. He would put a case to the Prime Minister. Supposing that Her Majesty's Government had proposed last year to refer the Prevention of Crime Bill to a Standing Committee, and the ruling referred to had been in force, it was perfectly obvious that it would have been in the highest degree intolerable to Irish Members to be prevented from discussing the principle of that Bill on the Motion to refer it to a Standing Committee, if they had no previous Notice that such Motion would be made. Therefore he asked whether it would not be convenient and regular that, whenever a Motion was made by the Promoter of a Bill that it be referred to a Standing Committee, unless Notice of that Motion were given before the Bill was read a second time, the principle of the Bill might be discussed on the Motion to refer the Bill to a Standing Committee? In the absence of any declaration from the Chair upon this point, he certainly anticipated the greatest possible inconvenience in connection with Motions to refer Bills to the Standing Committees.
§ MR. SPEAKERSince the Standing Order relating to Standing Committees has been in operation, four Bills have been referred to the-Standing Committees. In each of those cases, Notice has been given by the Member in charge of the Bill, before the second reading, of his intention after the second reading to move that it be referred to a Standing Committee. It appears to me that that course is proper and convenient; and, if the House think fit, I will, so far as my influence goes, endeavour to see that it is carried out.
MR. GLADSTONESir, I rise, not only in deference to your authority, but because I think the demand of the noble Lord is perfectly fair and reasonable, to say that, on the part of Her Majesty's Government, I will engage, without introducing fresh Rules on the subject, that Notice shall be given, before the second reading of any measure, of the intention to move that it be referred to a Standing Com- 390 mittee, in order that hon. Members may have a perfect knowledge of the course to be pursued.
§ MR. GIBSONsaid, it was regarded as a matter of course that the Prime Minister would at once assent to the very reasonable suggestion, that Notice of the intention to move that a Bill be referred to a Standing Committee should be given before the second reading. The present proposal was so reasonable that it had only to be stated to be accepted. He had no objection to refer this Bill to the Standing Committees, and he ventured to say that, as there had been no surprise, there was no objection to this being done in any part of the House; but he would like to reserve distinctly the point, as a Member of the House, that even after the Notice was given that a Bill was to be referred to a Standing Committee, such Notice did not of itself, being put down by a Member in charge of a Bill, give the right of carrying the Bill to a Standing Committee. It was competent for the House, on a Motion to refer a Bill to the Standing Committees, to indicate, without going unduly into the Bill, or discussing the principle upon which the Bill was founded, to indicate that there were objections to its being referred, and that having regard to the principle itself, and to the many important clauses in the Bill, the House was bound to keep them within its own cognizance, and not hand the consideration of them over to any other body whatever. It would otherwise be impossible to discuss the Motion. The Motion was made by the Minister in charge of the Bill, of course, with Notice, to refer it to a Standing Committee, and anything like a surprise or trick was out of the question; but, putting that aside, his point was, that the Minister in charge having moved that the Bill be referred to a Standing Committee, that was a Motion which those who objected to it should have the right to contest by substantial argument. The only way to do that was to point out that the Bill itself, its principles, and its clauses were of such a character that, without again disputing what the House had just affirmed on the second reading, the House must keep the principle and the clauses within its own dominion and not hand them over to anybody whatever. He (Mr. Gibson) thought it 391 essential to guard the rights of the House in this respect, and there were many hon. Members who felt exactly as he did.
§ MR. DODSONsaid, he thought it undesirable, at that hour of the night, to open a debate upon Procedure. The right hon. and learned Gentleman (Mr. Gibson) seemed to be of a different opinion; but he (Mr. Dodson) could not agree? with the right hon. and learned Gentleman, and he hoped the House would not In answer to the right hon. and learned Gentleman, he wished to point out that it had been distinctly intimated from the Chair, and, as he believed, distinctly understood by the House, that exactly the same opportunity would be given for questioning whether the Bill should be referred to a Standing Committee on the Motion of the Member in charge to so refer it, as was now afforded for discussing a Motion that a Bill should be referred to a Select Committee.
§ MR. GIBSONsaid, he thought there was no analogy between the two cases referred to by the right hon. Gentleman.
§ MR. DODSONsaid, he ventured to agree with what had been stated by several hon. Members earlier in the evening—that the analogy was an exceedingly good one. The discussion would proceed, subject to the ruling of the Chair, in the same manner as on a Motion of reference to a Select Committee. Moreover, in both cases, when the Bill was reported from the Committee, there would be an opportunity of fully discussing it on its consideration as amended, an opportunity which was no longer given in the case of a Bill reported from a Committee of the Whole House. Then the right hon. and learned Gentleman seemed to think that there ought to be some power in the House to reserve some of the clauses. [Mr. GIBSON: No!] Then he had not correctly understood the right hon. and learned Gentleman; but he wished to remind him of this—that, by what had fallen from the Prime Minister and from the Speaker, the House had received an assurance that Notice would always be given of an intention to move the reference of a Bill after its second reading, to a Standing Committee. Therefore, the House would debate the Bill on the second reading with a full knowledge of what was to follow.
§ MR. SCLATER-BOOTHsaid, he perfectly agreed that that was not a very convenient time to discuss Procedure; but the House was now at the beginning of a period when these experiments were being tried, and it was important that hon. Members should understand what they were about. He must point out that no Bill was over referred to a Select Committee, except by previous agreement on both sides. He thought the present stage of the Bill was a reasonable stage upon which to allow the consideration of what was a serious dispute on a question of propriety.
MR. GORSTsaid, it appeared to him that, after the explanation of the Prime Minister, and the ruling from the Chair, the House had every reason to be satisfied with the present safeguards in regard to this matter. He understood that the practice observed in regard to all the four Bills referred to Standing Committees would be maintained, and that the House had every assurance they had a right to require, and that no injustice or inconvenience would arise because they would be able to discuss the principle of a Bill upon its second reading with the full knowledge that it was intended to propose to refer it to a Standing Committee. If there was any serious objection to so referring it, that narrow question could be discussed.
§ MR. WARTONsaid, it would be within the recollection of the House that, during the Autumn Session, he had asked the Prime Minister to state what were the Bills which he intended to refer to the Standing Committees in order to try the new experiment. The right hon. Gentleman had mentioned exactly those Bills which had been already referred to Grand Committees; so that, so far as this Session was concerned, the Prime Minister's statement would not be of practical use, because they had now got to the end of the list of Bills which he had pledged himself should alone be referred to Grand Committees. With regard to future Sessions, the right hon. Gentleman the President of the Board of Trade seemed to wish to silence discussion on important points; and he (Mr. Warton) felt that evening that one of the privileges of the House had somehow slipped a way—namely, the privilege of discussing a Bill on what was called the 393 principle. He did not much complain of any of the Bills being referred to Grand Committees, except, perhaps, one, of which he defied anyone to name the principle. That was the Criminal Code (Indictable Offences Procedure) Bill, through which there ran nothing that could be called the principle of the Bill. That Bill contained one provision which he (Mr. Warton) thought worthy of a long debate — namely, the provision under which a man could be called upon to defend himself upon examination. That might be right, or wrong; but, in future, the House must be on their guard, because they would know that even on a long Bill containing a great number of clauses, and with a novel procedure introduced, they would be powerless to discuss it.
§ MR. J. G. TALBOTsaid, that, like his right hon. Friend (Mr. Sclater-Booth), he also agreed that that was not a convenient moment for a discussion on Procedure; but he also thought it desirable, if they were to enter, as they seemed about to do, on this new plan of referring Bills to Standing Committees they should know exactly what that meant in the way of shortening the stages of Bills. He could not help thinking that the right hon. Gentleman the Chancellor of the Duchy of Lancaster (Mr. Dodson), in the analogy he drew between referring Bills to Select Committees and to Standing Committees, had fallen into this error—he treated the matter as if the House had the same opportunities, in the case of Standing Committees, as in the case of Select Committees. Surely, that was not so. When a Bill was referred to a Select Committee, it came down again and was referred to the Committee of the Whole House, and upon that being proposed any hon. Member could move that the House should go into Committee "that day six months." Therefore, the whole principle of the Bill could be discussed afresh on the Motion to go into Committee; but, as to Standing Committees, that opportunity was entirely lost. He did not say the House was not prepared to abandon that stage, but there was a distinct diminution of the stages of a a Bill in the case of its being referred to a Standing Committee. That seemed to him to be a proposition which was beyond dispute.
§ SIR H. DRUMMOND WOLFFsaid, he believed it would be perfectly competent, when a Motion was made to refer a Bill to a Standing Committee, for any hon. Member to move that it be referred to such Committee "that day six months." He did not see that there was any difference between that and the case of referring a Bill to the Committee of the Whole House; but he wished to ask for the Speaker's ruling upon that point.
§ MR. SPEAKERThat would not be a regular Parliamentary method, and such an Amendment could not be moved on the Motion to refer a Bill to a Standing Committee.
§ Question put, and agreed to.
§ Bill committed to the Standing Committee on Trade, Shipping, and Manufactures.