Lords Sitting of 3 June 1835

MINUTES.
Petitions presented. By the Duke of GORDON, the Marquess of BUTE, the Earl of RODEN, and the Archbishop of CANTERBURY, from a Number of Places, for a further Grant of Money for Building Churches in Scotland—By the Archbishop of CANTERBURY, from Bolton, for a the Repeal of the Factories' Regulation Act—By the Earl of RODEN, from Chorley, against the Restrictions on Beer Shops.

PATENTS.
Lord Broughamrose to introduce a Bill on the subject of Patent Laws. He said that the defects of the law as it now stood were admitted, and there were two courses to be pursued with regard to its alteration. The first course was to effect an alteration of the whole law of patents; to repeal the law from the Statute of James downwards, and then to re-enact such of the provisions of the present law as it was desirable to retain and to enact other provisions for the greater security of patentees and of the people at large with respect to patent rights, so as to secure the latter from the bad effects of monopolies. There was this objection to that course, that it would be extremely difficult to secure for it the concurrence of all the interests involved in the matter, and there was this further ob-

473
jection, that one of the plans proposed would be likely to entail on the public one of the great evils of monopolies. He should give one instance of this. It was proposed, that in order to avoid the injustice of keeping patentees in courts of justice all the fourteen years of the continuance of their patents, it should be enacted, that when a man had once got a verdict establishing his patent, such a verdict should be conclusive as against all the world. The consequence of such an enactment would be, that any man could establish a patent—he might get a patent, though there was no new invention, consented to by the Attorney-General per incuriam for the brewing of beer, or the making of bread, and he could get a friend to institute a colourable suit in a court of law or equity, which might be kept up collusively during the whole of the fourteen years of the patent, and during that time the public would be deprived of the right to dispute his patent, and must suffer from his monopoly. The objection to this course was admitted, and such a proposal was therefore abandoned. There was another course, namely, to remedy some of the defects of the present law, and that was the course which he now proposed to pursue. There were three or four leading defects in the law as it stood at present. In the first place, it was well known that if a person took out a patent in respect of five or six different things comprised under one general invention, as in the instance of an invention of a new mode of making painters' colours, if five of these modes were completely successful, but the sixth was not so—was not a useful invention within the meaning of the patent laws, the whole patent would be void—void as much for the five successful things, as for the one unsuccessful. In the same manner, if six things were claimed as original, and it should be proved that five out of the six were so, but that the sixth was not—that it was in use at the time the patent was granted—the patent would be void for all, although it might happen that each of these five things was original and highly valuable, and though the sixth might be comparatively unimportant. In the Courts of Law and Equity, such a patent would be void. That was a great hardship, for the inventor might have made a very meritorious invention in respect of these five things that were proved to be original; yet even for them he would be deprived of
474
all reward, notwithstanding all the labour he had bestowed, and all the expense he had incurred, in discovering them and bringing them into use. If he had deceived the Crown in respect of their originality, he would deserve to lose his patent; but he would equally lose it though he had honestly, but mistakenly, claimed all six as original. This had been the case with the man who invented the chain-cable, that most admirable and useful invention. Nobody could touch that; but it so happening that he thought he had invented an anchor with a fixed stock, he included it in his patent, and it afterwards appeared that some other person before that time had used one of a similar kind. The whole patent, as well for the chain-cable as the anchor, was declared void. Such might also have been the case with respect to the wonderful inventions of Watt. The whole of these—the condensing contrivances, the parallel motion, that most scientific application of the nicest and most abstruse principles of mechanics—all would have gone for nothing, new, original, and highly useful as they were, had any little part of the patent been bad. This was an evil that obviously required a remedy. He proposed, as a remedy, that if within two years from the enrolment of the specification the patentee should enter a disclaimer as to these parts of the patent, and should file the same at the patent-office, and should insert it a certain number of times in The London Gazette, and in some of the public newspapers, and if he should also get a fiat from the Attorney-General, who should examine whether his original claim was innocent or fraudulent, so as to be within the general principle applicable to grants by the Crown; upon that being filed and published it should be conclusive evidence of the Attorney-General having given leave to allow the disclaimer, and to file it; and the disclaimer should be confined in its operation to those parts of the patents which he had disclaimed, and should not affect the other parts of it. The next difficulty was this. A patentee now stood in this situation, that if the invention was one which related to a matter that had been but newly introduced, the value of which was but vaguely known, and which required time for the public to become thoroughly acquainted with it, a considerable period must elapse before the inventor could get a market—a demand for his invention that would repay him for

475
the cost and labour he had bestowed on the production; and the fourteen years usually given as the duration of a patent might pass away, and the patent would expire under the Statute of James before the patentee was remunerated. If, on the other hand, there was a new mode of doing something that related to a matter already in general use, and the value of which was well known, as was the case with the invention of his hon. and ingenious friend, Mr. Howard, he certainly would not want the fourteen years to make the market; but what then? why, he would become the prey of every pirate—he would be subjected to perpetual infringements of his patent, for the temptation to infringe it was too strong to those who were already engaged in the trade to which the patent related, and who found out that the patented article enabled others who possessed it to carry on the trade to much greater advantage, and, in fact, to drive them out of the market; he said the temptation to infringe the patent was too strong, and persons engaged in the particulars were anxious to share this new advantage, that it was impossible for the patentee to preserve his invention from piracy. In such a case, all in the trade might pirate the invention and thus rob the inventor of his fair right to remuneration—he would be but one man with one purse against the purses of a hundred others; and it was well known, as his (Lord Brougham's) experience had shown him, that stock-purses were not unfrequently made by those who pirated an invention of this kind to harass the inventor with actions in courts of law and equity, and, driving him to despair, to carry off the fruits of his skill and labour. This, however, did not happen to his hon. Friend Mr. Howard, for that gentleman, by the advice of friends—in fact, he (Lord Brougham) had strongly joined in that advice—got all the sugar refiners, the operations of whose business were effected by the discovery he had made, to join him on the subject of the patent; and assigning to them two-fifths, and reserving to himself three-fifths of the profits, he gave them an interest in the matter, and made them, in fact, patentees, though by the law against a partnership exceeding a certain number of members, he could not do so in form. But his hon. Friend had been enabled to do this chiefly from the circumstance that the sugar-refining business was in a few hands. Mr. Watt, not with-
476
standing his surprising, and to the public most incalculably useful inventions, might have been out of pocket but for a set of circumstances that could not possibly happen in every case. An Act of Parliament had extended the period for the duration of his patent; but if it had ceased in the usual time, he must actually have been a loser by it. It would have been better worth his while to have burned his models and discharged his men (as many sensible and sincere friends—Mr. Smeaton for instance, among others, had advised him) than to have gone on contesting the validity of his patent for his extraordinay inventions. It was after the patent expired that Mr. Watt had really gained his great remuneration for then happening to be a better mechanic than his rivals—happening to have the merit not only of inventing the apparatus, but of constructing it in a better way than others, be obtained, in the midst of competition, the command of the market, and thus realized his fortune. There were however instances, in which persons, to avoid the evils he had mentioned, kept their inventions secret. Such was the case with the medicine long administered by Mrs. Knight's family in scorbutic disorders. They had never reduced the discovery to writing, and they insisted always on preparing the medicine themselves, and this excellent medicine was likely to be lost to the world, because, if it had been made the subject of a patent, and its advantages thus after a time secured to the public, the interest of the patentee would not have been sufficiently protected. The same was the case with what was called Steven's solvent for the stone. To remedy this evil of the patent laws, he proposed that if any person should take out a patent, and should afterwards advertise in the London Gazette and in the newspapers of London, and of the place where he resided, the discovery he had made, and if after that he should bring an action in law for the infringement of his patent, or any suit in equity for an account in consequence of such infringement, or that any scire facias should be issued to repeal the patent and that one verdict should be found for him on any of these proceedings, and that the judge who tried the cause should certify in the usual manner that the validity of the patent had come in question; that then, in such case, such verdict and certificate shold be given in evidence in any other such action or

477
proceeding by scire facias; and if in any such suit or action he obtained judgment, he should be entitled to treble costs; not as treble costs were taxed now, namely, the costs one-half and then one-quarter; but costs to three times the amount incurred in the suit. Another improvement which he should propose was directed to the same point, and was connected with the same statement of the nature of the evil. He proposed that after a certain time had elapsed, and after a certain number of advertisements had been inserted giving the public an account of the specification, and referring to a place in London or in the town at which was the residence of the patentee, where models and drawings should be open to the inspection of the public, for one month, during the time of the advertisements, and for one month afterwards, there should be a limitation of the right of a third party to try the question of the validity of the patent, on the score of its originality; so that after eighteen months for the making of the specification, in no action or suit on the subject of the invention should any evidence of the want of originality in the invention be admissible. The last improvement that he should propose in the present law was, that after certain notices given, it should be in the power of the Privy Council, upon application duly made, after hearing the circumstances in support of, and against the application, to grant an extension of time for not more than seven years after the expiration of the original patent. These were the leading improvements of his Bill. There were others of a minor kind, and there was one, too, which he thought necessary to introduce, to guard against frauds now frequently practised—that was to prevent any person who was not really a patentee from putting over his shop the words "by patent," or "by his Majesty's royal letters patent," or other words of a similar kind, which had the effect of transferring to him custom as the patentee of an article for which he really possessed no patent whatever. He moved that this Bill be read a first time.
Motion agreed to.—Bill read a first time.