Lords Sitting of 26 February 1875

MINUTES.
PUBLIC BILL—Second Reading—Patents for Inventions (15).
PATENTS FOR INVENTIONS BILL.
(The Lord Chancellor.)
PATENTS FOR INVENTIONS BILL.

  (NO. 15.) SECOND READING.
  Order of the Day for the Second Reading, read.
  Moved, "That the Bill be now read 2a."—(The Lord Chancellor.)
  EARL GRANVILLE: My Lords, this is a question in the discussion of which, I believe, no party feeling can enter. I may at once announce that it is not my intention to vote against the second reading of the Bill; but on several grounds I would venture to follow up the suggestion I made when the noble and learned Lord laid the Bill upon the Table, and ask him to consent to its being sent to a Select Committee upstairs. I feel that I can make this request with the less difficulty, because the same appeal was made to myself when, as Vice President of the Board of Trade, some 24 years ago, I introduced a Bill on the subject of the Patent Laws. In bringing the measure now before the House under our Lordships' notice, on occasion of the first reading of the Bill now before your Lordships, the noble and learned Lord on the Woolsack treated the subject in an exhaustive manner. He gave your Lordships the entire history of the Patent Laws, and in doing so pointed out that those laws originated in no enactment of the Legislature, but had their origin in a monopoly which was excepted from the general repeal of monopolies effected by the statute passed in the reign of James I. I think, my Lords, it is clear that when patents were first granted they were granted not so much in the interest of inventors as a revenue to persons favoured by the Sovereign, who were the sole possessors of patents at that time. I think it further appears that the Patent Laws in continental countries were not of that restrictive character which they are now; because in those times the exercise of trades in the ordinary way was not permitted to any persons but the members of guilds; but patents gave persons not in guilds the right of manufacturing articles to which the patents applied. My Lords, we have heard much about the property a man has in his invention. I think the noble and learned Lord on the Woolsack fully disposed of that. As the noble and

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  learned Lord showed, it is impossible to limit a man's right in property. If it is property in the usual sense, it ought not to be limited—a man has a right to use his own invention; but it is a different thing to assume that he may pre-vent anyone else using it. The fallacy about an invention being also property was also clearly demonstrated by my noble and learned Friend behind me (Lord Selborne), in a speech made by him in the House of Commons some seven years ago. It has been given in evidence that this is the principle which has been laid down in decisions of the Courts, and I observe that Mr. Bramwell, the ablest defender of patent rights, although he does not distinctly abandon the ground of property, entirely lays it aside as the basis of his argument. Now, my Lords, the evidence taken on the subject of the Patent Laws and a careful consideration of the whole question have led me to the conclusion that Patent Laws are a mistake, and that their entire abolition would be not only for the benefit of the public at large, but for that of the class in whose interests they are usually advocated—I mean the inventors themselves. Before proceeding to state some of the reasons which have influenced me in coming to this conclusion, perhaps your Lordships will allow me to refer to another mistake made by some of those who are in favour of patents. They ask, what is the difference between authorship and invention, and what is the difference between allowing a patent for an invention and allowing copyright for a book? Well, my Lords, there is an obvious answer to this—indeed, all the arguments that can be put forward in favour of a patent for an invention may be urged with at least equal force in favour of copyright for authorship; while the latter is open to none of the objections which toll forcibly against the former. A man—let me say my noble Friend (Lord Stanhope), who is not now in the House—writes a book. The authorship cannot be contested, and it is admitted to be impossible to allege that anyone else is the author of the book. Well, it is true that no one else may publish that book; but there is not an idea nor an argument in it that any other writer may not adopt and make use of in his own writings. My attention was first drawn to this subject in a conversation with one of the ablest, most fertile, and
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  boldest inventors I ever know—the late Mr. Brunei. He told me what he afterwards stated before a Committee of your Lordships' House, how much he had been connected with patents. How he had for a long time resolved to have nothing to do with them. How they interfered daily with improvements which he saw might be advantageously adopted in the plant and machinery of a railway; how injurious they were to workmen as well as to their employers. I subsequently had an opportunity of learning the opinions of the late Sir William Cubitt, who had been a working man himself, and who was one of the most prudent and cautious persons I ever met. Well, Mr. Brunei agreed with Sir William Cubitt in the opinion that the Patent Laws were not to the advantage of either inventors or the community. I am aware that opinion is much divided on this subject; that it has been much discussed; and that, by high authorities who differ on the point, much argument has been brought forward on both sides. I can assure your Lordships that in anything I may say on the subject I am in no way influenced by hostility to inventors. Half the arguments of those who uphold patent rights are simply in favour of inventions, and they treat the opponents of patent rights as if they were all of the same opinion as an old official at the Admiralty, who said to Mr. Sydney Herbert soon after his entrance into the office—"Sir, I was sorry to see you speak to that man, he is an inventor, and it is not for the first time, he invented something last year." Now, no one honours them more than I do, I do not believe that any others—whether statesmen, warriors, or poets, or artists—have done so much to benefit the human race as inventors, and therefore I, for one, should not be disposed to deprive them of any share of the advantage which they ought to derive from their inventions; but the question is whether the present system—I speak of the Patent Laws—is of any real advantage to them. I do not believe it is; nor do I think it is of any benefit to the community. There are, of course, some persons to whom it is of advantage. It is of advantage to lawyers whose practice is connected with patents; to scientific men who advise patentees, and who give evidence on Patent trials; to patent agents and patent-mongers; and also to

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  some largo and respectable firms, who buy up patents, some for use, and some for obstruction, and who find them profitable as advertisements and puff: of course, those numerous persons who purchase up patents for the purpose of securing their own monopolies profit by them; but I am convinced that, as a class, inventors suffer by it. Another evil which I would point out in connection with the system is, that by a patent an artificial merit is often given to an invention which has no real merit. Your Lordships know that a patent is no evidence of merit in the invention; but among a large section of the public a contrary impression prevails, and thus a person who is able to purchase a patent for an inferior contrivance often stands in the way of meritorious inventors. The great argument put forward in favour of patents is that they stimulate inventors and induce persons to invent. Now, in the first place, I would remark that some of the authorities who are most strongly in favour of patents complain that under the existing system patents are in many instances unremunerative—that they do not compensate the inventor for his loss of time and money. I believe this is true. It is said, however, that there are exceptions, and that some few patentees make great fortunes. I must express my belief that the making of great fortunes by patents is a thing quite distinct from the inventions. By some inventions of little or no merit great fortunes are made; while some inventions of very great merit are not so rewarded. But as to this argument about stimulating inventors, I should say in reply to it, that' of all persons who could be named inventors require stimulation the least. You do not stimulate inventors of real talent by your Patent Laws—the inventors you do stimulate are those of whose inventions not one in a hundred has the least chance of success. Remember, my Lords, that nearly all inventions of real value proceed step by step. One improvement—and perhaps it is only a very slight one—is followed by another, till the contrivance is made perfect, or as far as may be so. This being so, the result o: the Patent Laws is, that the inventor if often retarded, if not stopped in his pro-gross, because his next step may be regarded as an infringement of a patent No doubt, the prospect of obtaining a
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  patent has a certain amount of attraction for working men. They regard an invention as property, and look forward to securing a great stroke of fortune; but, my Lords, I doubt whether this is a wholesome stimulation. There is much of the gambling spirit so common to the human race in this endeavour to make a fortune by means of a patent. We know how strong a passion the gambling spirit is in the human race—so strong that in some countries whore the Government is averse from a continuance of the State lotteries, they dare not do away with that species of gambling. I have not the slightest doubt that this gambling spirit induces a number of poor men to abandon a practical use of their ability and to fix their mind exclusively on one intellectual venture with the idea that they will make their fortune by it. Take some of the inventions which are most valuable to the human race, and take one of the most distinguished of the professions—I mean the medical profession. Does a physician or a surgeon take out a patent for any invention to alleviate the sufferings of mankind? Why, if he did, the members of his profession would refuse to meet him; they would exclude him from their professional society, and I believe they would expel him from the College of Surgeons or the College of Physicians, as the case might be. Now, as to the supposed benefit of patents to poor men. Mr. Mundella, in his evidence before the Committee of the House of Commons on Patent Laws, gave several instances of the marvellous tenacity with which poor workmen pursued the carrying out of their designs under circumstances of the greatest difficulty. One of those instances was a narrative full of pathos. Your Lordships know that Mr. Mundella has achieved a well-earned reputation as an excellent and benevolent employer. He found a poor man in a wretched garret in a starving condition working at the development of an invention in which his mind was wholly absorbed. Mr. Mundella took the man from the garret, paid him 30 s. a-week, and put him under a skilled mechanic. The invention was worked out and a patent taken for it by Mr. Mundella, who gave the man one-third of the profits of the invention. This is the way in which Mr. Mundella acts with poor inventors, and would he not

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  have behaved in a similar way if there had been no Patent Law? Would he not have given the same assistance to an ingenious and inventive workman, and have, at an earlier period, prevented the destruction of the man's health, caused by his desire to let no one know his secret. But take the reverse case. Suppose Mr. Mundella was a hard-hearted man, and that he had found this poor inventor starving in his wretched garret—he would have allowed him to starve for a few days longer, and then have bought the invention for a few shillings and have worked it for his own profit, the unfortunate inventor having nothing more to do with it. Again, look at the jealousies to which the system gives rise as between the manufacturers and the operatives. When any of the latter are inventors, and are endeavouring to work out their inventions in the factory, the manufacturer is jealous lest his own premises and his own machinery may serve for the development of something which will be used against him. On the other hand, there is on the part of the inventive workman the fear that his employer may deprive him of the profit of his own ideas. Another argument put forward in favour of the Patent Laws is that this country would labour under a disadvantage if we had no Patent Laws, seeing that other countries have them. I believe this to be an entire mistake. It is to be remembered that there are no Patent Laws in Holland or in Switzerland, and in Germany the Patent Law is a nullity. I doubt if there is any nation more shrewd than Holland; and as to Switzerland, I think I can show that my noble Friend (Lord Houghton) must have been labouring under a mistake a few years ago when he said, "I never heard of any manufactures in Switzerland except alpenstocks and long hotel bills." Mr. Samuelson, in his evidence stated—
  "In the year 1867 I visited Switzerland, and I was surprised to find how successfully our inventions in spinning machinery are immediately copied there, the result being that our trade in spinning machinery, so far as neutral countries are concerned, more especially the South of Germany and the North of Italy, has been transferred almost entirely to the Swiss; and they have this advantage—that they are able to avail themselves of a combination of English patented inventions, each of which is a monopoly in this country, and they are thus able to produce occasionally a better spinning machine
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  than any single manufacturer can do in this country."
  Now, as to foreign inventors in their relations with this country. It is said that foreign inventors would not come to this country with their inventions if we had not Patent Laws. I believe that men of great technical knowledge and of inventive intellect would always come to this country, even without Patent Laws, rather than go to a country inferior in wealth and natural resources with Patent Laws. But suppose they would not. In that case we could send to other countries for the inventions of those foreigners, getting them for nothing. Much has been said about the extensive patent system of the United States; but I think the noble and learned Lord on the Woolsack showed your Lordships the other night that it was not desirable we should follow that example. There appear to be too many patents in that country. My Lords, I cannot help being much struck with those observations of my noble Friend (the Earl of Derby), in reference to our Patent Laws—
  "It was impossible to carry on an inquiry into the Patent Laws without a doubt being forced on one's mind whether any Patent Law could be framed in such a manner as not upon the whole, on a balance of good and evil, to do more harm than good. This conclusion, he was bound to say, was totally opposed to his earliest impressions upon the subject. He resisted it for some time, but the more he had to look into the matter the more clearly it appeared to him that the evil was really irremediable, being inherent in the principle itself. The objections to the principal of a Patent Law was three-fold—first, you could never secure the reward going to the right man; secondly, you could not establish any proportion between the public service rendered and the value of the reward received nominally for the service; and, thirdly, you could not by any arrangement, he could discover, prevent very great inconvenience and injury being inflicted upon third parties."
  My Lords, I know what Lord Derby describes as having occurred to him did occur to several Members of the Royal Commission. They entered on the Commission with views entirely in favour of the Patent Laws; but their minds were completely changed. This cannot be said of Mr. Hindmarsh, as in the separate report he put in, he gave no opinion on this point; but, without any disrespect, it may be said of him that he was not entirely unbiassed. I do not speak of an unworthy prejudice; but as a distinguished lawyer, having so much to do

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  with patents, he must have been somewhat biased in their favour. My Lords, in confirmation of what I have said as to the change which came over the minds of the Commissioners, I will quote one passage from the Report—
  "The changes suggested will do something to mitigate the inconvenience now generally complained of by the public as incident to the working of a Patent Law. It is their opinion that these inconveniences cannot he wholly removed. They are, in their belief, inherent in the nature of a Patent Law, and must be considered as the price which the public consents to pay for the existence of such a law."
  My Lords, I am of opinion that there are evils "inherent in the nature of the Patent Law" which no legislation but legislation to abolish patents will succeed in removing; but having said that, I must not be understood as complaining of the noble and learned Lord on the Woolsack for having introduced this Bill. I do not complain that the noble and learned Lord does not propose the total abolition of the Patent Laws—because I am ready to admit that I do believe public opinion is not yet ripe for such a measure. At the same time, I think public opinion has been a little manufactured on this subject by able men—men very popular and of great attainments—who have got hold of the mind of the public. At all events, I do not think the public mind is ripe for the total abolition of the Patent Laws, and it would not be right of the Government to run counter to that opinion. Well, then, not being in a position for that reason to propose the total abolition of patents, the noble and learned Lord is quite right to introduce some amendment; but it gave me some satisfaction to hear the noble and learned Lord say on a former occasion that, in his opinion, those laws must come to an end; and that satisfaction has been considerably increased by the opinion expressed to me to-day by a gentleman much in favour of patent rights, who said that if the Lord Chancellor's Bill was passed, the whole thing would be smashed in two years. I am glad, my Lords, that public opinion is coming. I think it desirable that this Bill should go to a Committee—either a Select Committee or a Committee of the Whole House. A great many objections have been taken to its provisions. In some
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  of those I agree, from others I entirely differ; but, having regard to the questions involved in the measure being questions on which there is so much difference of opinion, nothing could be worse than to pass the measure without a full consideration of all the objections that are urged against it. Both those who oppose the Patent Laws, and those who are in their favour, should endeavour to make this Bill as perfect as possible. I am rather in favour of the preliminary examination of patents proposed by the noble and learned Lord, and I think the Royal Commission was in favour of such an examination; but even after the lucid explanation of the noble and learned Lord on the occasion of the introduction of the Bill, I am not quite clear as to what is to be done. I understood the noble and learned Lord, in answer to the noble Duke (the Duke of Somerset), to say that the Examiners will not have the power to report against an invention on the question of utility. I think that is quite right; because, after all, experience is the only test of utility, and we know how mistaken some of the most scientific men have been as to what was practical in mechanical construction. The noble Lord on the Woolsack said that Sir Humphrey Davy would have reported against lighting our streets with gas. We know that Dr. Lardner proved it was impossible that any steamship could cross the Atlantic Ocean. When on the Commission for the Exhibition of 1851, and when we had got over our great difficulty by the suggestion of Sir Joseph Paxton for the building, for which, by-the-bye, he never took out a patent, I remember reading a letter from Professor Airey, in The Times. In that letter, that distinguished man proved that the exhibition building could not stand against the several gales which might be expected during the year. He gave his calculations as to the average force of these gales, and as to the power of the building to resist such a force, and he proved mathematically that the latter was insufficient. I dressed as quick as I could, and jumped into a Hansom. I found Mr. Brunei. "Have you read Professor Airey's letter?"—"Yes." "Have you gone through his calculations?"—"Yes." "They are all wrong?"—"No, they are all right; but he proves too much. If he is right, your house, my house, and all the houses in

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  London must come down four times a-year." Then, if the granting of a patent depended on the inventor being able to convince the Examiners of the utility of his invention, what would the inventor of the electric telegraph have to say? Why, I should say, that by means of a wire, he proposed to make messages travel at a rate faster than the wind. The Examiners might be incredulous, and report against his invention, if they were allowed to go into the question of utility. There is some ambiguity in the provision relating to frivolous inventions, and I have some doubt as to the propriety of enlarging the Patent Commission by the addition of five unpaid Commissioners. The experience we have had of the working of permanent unpaid Commissioners is not encouraging. I think the three or four Examiners will be the wheels on which the coach will run; and I am afraid that there is danger in the unlimited panel of Referees by whom the Examiners are to be assisted. Those Referees are to be gentlemen of scientific and technical knowledge, and, however honourable they may be, it will be difficult to make certain that they are unprejudiced in their views, and not interested in trades or manufactures to which patents coming before them are proposed to be applied. I think that, in order to render the inherent vice in the Patent Laws as innocuous as possible, it is quite right that there should be a system of licences. It is monstrous that a man with a patent should be allowed a monopoly of it for 14 years, no one else being permitted to use it even on payment to the patentee. I also entirely approve of the prevention of a person getting a patent for an invention which is not his, but which, in these times of easy communication, he has brought from some foreign country. My Lords, there are several matters in this Bill which can be more properly dealt with in Committee, and which, I think, could be dealt with best by a Select Committee. I regret to think this cannot be a final settlement of this great question; but as I have admitted that the noble and learned Lord would scarcely be supported by public opinion if he were now to propose the total abolition of the Patent Laws, I trust I shall not be deemed inconsistent if, having made a speech against those laws, I announce
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  my intention of voting for the second reading of this Bill.
  LORD BELPERsaid, much as he admired the ability with which the noble Earl had explained his views, he hoped that they would not be adopted by their Lordships. He entirely agreed with the noble Earl that an inventor possessed no natural or original right to a monopoly of his invention, and that the existence of patents could be defended only on the ground of public utility. Patents were the creation of the law, and the question to be decided was, whether they should secure to an inventor for a limited period the property in his own invention. He thought it was scarcely possible for anyone to read through the lives of the eminent inventors of this country without perceiving the great encouragement which the Patent Laws had given to those men, and how much those laws contributed to the success of their inventions. He would take only two instances—those of Watt, the inventor of the steam-engine, and Arkwright, the inventor of the spinning machinery. Both these illustrious men were at one period of their lives in a state of poverty; but they were men of great perseverance and genius, and they struggled on through their difficulties. But what had given them encouragement? The object they had in view was to obtain a patent; they knew that if they could effect that they were sure of assistance from capitalists to enable them to carry out their inventions. It must be remembered that if there were no patents, capitalists would be very reluctant to invest money in inventions, however good; but when the working of an invention was secured for a limited time, that was something to induce men of money to come forward and assist poor inventors. Therefore, a patent was a thing of great value in itself—it was something tangible in reference to which patentees could ask for the assistance of capitalists, and the question was, whether inventors would care to perfect their inventions, and bring them before the public, if they were not thus to have the benefit of their discoveries. He did not think the enormous number of useless patents taken out had any real bearing on the question of the utility of patents when he could point to such remarkable instances of their public utility

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  as those which he had cited. No doubt, under the patent system, monopolies were granted for a certain time; but generally the monopoly was not an absolute one, because, in almost all cases, it would be for the benefit of the inventor to allow licences for a term to other persons to carry on the trade under the patent. In that way the public were not prohibited from having the benefit of the patent. Their Lordships would also remember that it was a condition to the granting of a patent that the invention should be made clear, and the description be such as that any one could work it from the description—so that, at the proper time, all other persons might avail themselves of the invention. Suppose there was no Patent Law, and that some ingenious man invented an improvement—say in some machinery. His great object would be to conceal it from the world; and, in practice, it might be concealed, in some cases, for even a longer period than the duration of a patent. It would be very injurious to the community to have a man endeavouring to secure an advantage to himself by keeping an invention from all other persons engaged in the same trade. On the other hand, several of those persons would be endeavouring, by bribing workmen in his employment and other such means, to discover his secret. I put it to your Lordships whether, under these circumstances, it is not more for the public advantage that inventors should enjoy the protection of patents. There was another point—the question whether patents should be extended beyond the period for which they were granted. As he understood, at present, if the invention was one of great importance, and if in the opinion of the Judicial Committee of the Privy Council the inventor had not been sufficiently rewarded in the 14 years, the Committee could extend the patent; but by the Bill the period of 14 years was not to be ex-tended; and he must express his opinion that the arguments of the noble and learned Lord on the Woolsack were so cogent against those extensions, that though they might be desirable in some cases, he coucurred with the noble and learned Lord that they should be put an end to. He spoke with great diffidence on the subject of the Patent Laws, because he was aware of the difficulties attending
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  it, but he hoped the present measure would meet with the approbation of their Lordships.
  LORD HATHERLEYsaid, that perhaps he ought to apologize for trespassing on the attention of the House in that discussion, and might be asked what he had to do with patents? But so long ago as 1851 he had, with his lamented Friend (Lord Romilly), and afterwards with the present Lord Chief Justice, to assist in the preparation, and in the passing, of a Bill through the House of Commons for the amendment of the Patent Law. The Bill of that year came up to their Lordships' House too late, but next year became, with few exceptions, the law now in force. He had since that time served on the Patent Law Commission, and he had also been for a period of 15 years a Judge of First Instance in Chancery, and he thought that he had had a full share of patent cases brought before him. Therefore, it might not be amiss if he offered a few observations on the subject. Concurring in the speech of the noble Earl (Earl Granville), he would content himself with mentioning a few of the difficulties of the present law, and why he thought patents worked injuriously to the public. At the present time inventions so rapidly succeeded one another, and advanced so entirely step by step, that it often happened there was no high degree of merit to be ascribed to the inventor, who, perhaps, by one small step had succeeded in completing the invention of a machine. Many men's minds were directed to the same subject, and it sometimes happened that two men invented the same thing almost at the same time; and in such cases the man who was really the later inventor of the two might chance to be the better acquainted with the mode of obtaining a patent, and might thus be able to shut out the other from the benefit of his invention. Take, for instance, the case of the invention of achromatic glasses as applied to lenses, for which a patent was taken out by a Mr. Dollond. Well, it was found on inquiry that a quiet country clergyman—a Mr. Hall—had invented it a year or two before the patentee, and had satisfied himself with the amusement it afforded him, without making it public in any way. By the Patent Laws, Mr. Hall would be shut out for 14 years from using his own glass, There was a case

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  of patent wheels for carts. A firm exported largely to the Continent only a cart-wheel of peculiar construction without having a patent for it; and on another inventor subsequently patenting it, a Court of Law decided that the patent was valid, and the firm in question was greatly prejudiced in its natural rights by that fact. Those cases showed one form of inconvenience which resulted from the present system of granting patents. Another evil of the system was that patents were sometimes taken out or bought up with the simple object of preventing the use of the inventions. Persons said—"It will pay us to buy up this invention, and so keep others from using it, merely that we may be able ourselves to go on in the old jog-trot way." That had been done with regard to an invention connected with the manufacture of carpets, and with another of candles—he would not mention the names, but the case came under his cognizance in his own Court. The interference of the Patent Laws with the interests of the country had been experienced in a singular degree by the Admiralty when a ship was about to be built. In a case which had come before the Patent Laws Commissioners, a gentleman from the Admiralty said, if he remembered right, that, in connection with the construction of a certain man-of-war, as many as 17 distinct intimations were received that the plans involved infringements of patents. This case induced the Government to bring the question before the Law Courts, and it was held that the Crown was not bound by the grant of patents. The multiplicity of very small inventions, all of them patented, was the cause of a great deal of inconvenience to the public, and the risks a manufacturer had to run in using a new machine were very serious; for unless he was prepared to run the gauntlet of actions by patentees, with all their counsel at their backs, he must suffer great inconvenience. A little joint here, a little fastening there, might involve an infringement of a patent. This state of things tended greatly to discourage invention. When a man really invented something of great utility, from which he might fairly expect to derive a considerable profit, it usualwoly happened that from the moment he made it public he was resisted to the utmost, and had to fight his way
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  from Court to Court—from the Court of Law to the Court of Chancery, and perhaps from the Court of Chancery back to the Court of Law and a jury—and then, perhaps, a new trial was ordered, and so on through a whole series of vexations. The following was a very remarkable instance of the injustice that might be done to an inventor under our present system of Patent Laws. A very ingenious gentleman, who possessed considerable inventive talent, discovered an invention by which mills might be worked so as to avoid the inconvenience occasioned by the floating dust—an invention which was, of course, of great advantage to the health of the factory hands. The invention was fonnd to be so useful that every mill-owner wished to employ it in his mill. But what did the mill-owners do? They held meetings among themselves, and they formed themselves into two unions, one in London and the other in Manchester, for the purpose of resisting the rights of the patentee, and then of sharing the profits so obtained between them. They all by one consent infringed the patent, and the patentee was compelled to file 50 Bills against different members of those associations. The result was, that the unhappy inventor became bankrupt, and died before he realized a single penny from his invention. There was another curious case in which a patentee was eventually successful, but not until after long years of litigation. The inventor was a Mr. Betts, and his patent was for making metallic capsules from tin and lead rolled together for bottles containing effervescing liquids. The patent was found to be a very useful one; whereupon a largo manufactory for making the capsules was established in Belgium, and numbers of casks of the article were sent over to this country. Mr. Betts having taken proceedings against the persons who were thus infringing his patent, the case went into every conceivable Court, and ultimately it found its way into the House of Lords. When the case was tried at the Assizes everything was going in favour of the patentee, when a very dramatic incident occurred. An attempt had been made to set up an old patent taken out some 40 or 50 years previously against the new patent; but it was on the point of failing for want of proof that anything had ever been made under the former patent,

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  when a man who was in the gallery of the Court asked what the matter was, and on being told, exclaimed that he had been in the service of the original patentee, and that he was in a condition to prove that the patent had been actually worked. Upon this he was handed down the stairs and into the Court, where, having had some conference with the counsel for the defendants, he was put into the box, and gave such evidence as induced the jury to return their verdict against Mr. Betts, on the ground that his patent was not new. The case coming before him (Lord Hatherley) subsequently, he entertained some suspicion of the bonâ fides of the evidence which had come to light in this singular way, and consequently he directed that the case should be sent down for trial again. The result was that on the occasion of the second trial this man was not to be found, and it turned out that his statement was a pure fiction invented for the occasion; and eventually the validity of the patent was finally established by their Lordships' House. Some time afterwards, Mr. Betts not having taken a patent out for Scotland, it was found that a Scotch brewer, who was using capsules not made by Mr. Betts, was sending his beer in bottles secured by such capsules to one of our seaports for shipment abroad; and application being made to him, he (Lord Hatherley) was compelled to grant an injunction to prevent the beer being shipped—and thus it remained for a considerable time in this country, being preserved by the very patent which the Scotch brewer sought to evade. He was sorry that he had detained their Lordships at such great length upon this subject; but his excuse must be that he felt the almost insuperable difficulty there was in the way of making these Patent Laws work for the real benefit of the public. The present Bill was undoubtedly a very good attempt to make the best of the matter; but while he should throw no obstacle in the way of the second reading of the Bill, he hoped that the noble and learned Lord would consent to its being referred to a Select Committee.
  THE DUKE OF SOMERSETsaid, he strongly objected to the proposal in the Bill for placing such great power in the hands of Referees and Examiners. It was almost impossible that they could determine in a manner satisfactory to
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  the public whether an invention was novel or frivolous or not. The Bill then went on to propose that when the inventions had passed the scrutiny of the Referees and Examiners, they should go before the Law Officers of the Crown. But what was the use of sending them before the Law Officers, who would have no time to examine the inventions, while the merely passing them would necessarily be regarded by the public as an incontestable certificate of the great value of the inventions? Now, he believed that 90 patents out of every 100 would be found worthless if they were attacked, and therefore it would be deluding the public to send them all forth as bearing the stamp of having received the approval of the Law Officers of the Crown. He was most anxious that this subject should be referred to a Select Committee. There was one point of particular importance to which no reference had as yet been made, and that was with regard to inventions made in the War Departments. It very often happened that an officer in the Department at Woolwich made an invention, and then the question arose with regard to the course that the War Office should take. If the inventor did not patent the invention, somebody else would do so, and then a difficulty might arise as to the right to use it; while, on the other hand, it was very objectionable to allow an officer to take out a patent for a discovery which he had made with the moans and the assistance of the Government. It would be very objectionable to allow these public officers to take out patents; but in such cases, no other persons ought to be allowed to do so. He trusted that before this Bill was passed it would be referred to a Select Committee, so that it might be ascertained whether it was really an improvement upon the existing law.
  LORD SELBORNEsaid, that having fully expressed his opinions upon this subject in his evidence given before a Select Committee of the House of Commons, and also in his speech addressed to the House of Commons on a former occasion, he would not trouble their Lordships at the present moment with more than a very few observations. The opinions he then expressed still remained unaltered. From his own experience he feared that the obstructive operation of the Patent Laws in respect

  933
  of the arts, trade, and commerce would not be sensibly lessened by the improved machinery or investigation proposed by the present Bill. He would ask his noble Friend (Lord Belper) who had spoken in favour of the Patent Laws, to consider the nature of the bargain which the public made, and the price which they had to pay by reason of the Laws. He concurred with what his noble Friend had said as to the great number of patents which were granted and the small number of valuable inventions they included. But it must not be supposed that the patents, which were not valuable, were therefore unimportant. Bad patents presented many obstructions to the avenues and approaches to new points of departure and improvements in the arts of manufactures and commerce, and operated as most serious difficulties and discouragements in the way of persons who were inclined, and had the ability, to make really valuable improvements. That fact was forcibly pointed out in the Report of 1864, from which his noble and learned Friend on the Woolsack had read extracts, which he could not but think was deserving of the utmost consideration—particularly when it was remembered that the Commissioners included his noble and learned Friend on the Woolsack, his noble and learned Friend behind him (Lord Hatherley), Lord Chief Justice Erle, Mr. Justice Grove—who of all lawyers and scientific men living had the most complete knowledge of the subject—the present Secretary of State for Foreign Affairs, Lord Over-stone, and Mr. Forster. They spoke in their Report of those obstructions as being most serious in their operation. There was one passage in the evidence of Sir Spencer Robinson to which he could not help alluding. The inconvenience, he said, was so great that it was scarcely possible to build a ship of wood and iron without treading upon somebody's patent. He was entirely, he added, of opinion that many patents were drawn up for the special purpose not of being worked for the benefit of the public, but in order that the patentees might lie in wait until they could enforce claims against some public Department. The evidence from the War Office was very much to the same effect; and it could not be doubted if the truth were known, that the experience of private traders
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  and manufacturers, in their own branches of the arts, must very frequently be the same. The price, therefore, which the public really had to pay for the few valuable inventions, was the whole amount of the obstruction and inconvenience and expense occasioned by the aggregate of the entire number of patents granted under the Patent Law system. He wished also to point out this which often occurred—that if an invention were useful, during the 14 years, and sometimes in the latter part of that period, the patentee invented some further improvement upon it; and then before the expiring of the original patent took out a patent for a fresh period of 14 years for that improvement; and in that way they, in effect, prevented the use of the original patent and thus prolonged their enjoyment of their original monopoly ad infinitum. The price which the public paid for valuable inventions was indefinitely increased by the obstructive operation of worthless patents.
  VISCOUNT CARDWELLsaid, he was one of those who asked for further inquiry before they passed this Bill into law. He understood that within the last two months a decision had been pronounced which would have a material effect upon the War and Admiralty Departments. It was established in the case which had been so often referred to, that the Crown was not bound to pay for the use of patented inventions. But by the recent, case while the Crown was not so liable in respect of manufactures it directly carried on, it had been held to be bound to pay in respect of manufactures which it conducted through the medium of contractors. Now, in his opinion, it was most important, as a question of public policy, that the Crown should not manufacture everything for itself, but that it should have recourse to some extent to the great manufacturing establishments of the country for its supplies. If they did not, in time of war they would have their own establishments only to depend upon, and they might prove wholly inadequate to the strain upon them. It was necessary, therefore, that the great manufacturing houses of the country should be in a position promptly to supply what the Government might require. Now, these private manufacturing establishments would not be in that position if, in ordinary times, they were liable to payments from which the Government

  935
  establishments were exempt; and the Government would be unwilling to ask the House of Commons to purchase, say, Henri-Martini rifles for a higher price than they could manufacture them at Enfield. That was a subject well worthy of consideration during the progress of the Bill. But he was very well satisfied with the Bill. He liked it for what it undid, as well as for what it did. What it undid was to put an end to the present system of patents, injurious as it had proved itself to be to the inventor, to the public, and to the manufacturing interests of the country; and what it did was to establish in its place a system which he ventured to say would soon perish, and they would then arrive, through the instrumentality of the Bill, at the object he desired to see attained—the abolition of the system altogether. He ventured to say that the system proposed to be established by this Bill was one that could not last. They were to have under the Bill a system of examinations. Such a system was provided in a former Bill in 1852; but ever since it had been a dead letter. He saw by a Report on the Table that in France, and the other countries of Europe generally, the system of examination did not exist. In America it did exist, and there they had innumerable patents—patents for things so frivolous and contemptible, that it was a matter of surprise that the idea of such inventions should have entered into any man's head. An American gentleman was examined before the Committee of the House of Commons. He was examined upon some of the patents which had been recently granted in America. One was a spittoon, and this, he said, was considered a subject of considerable importance in the United States. A patent was granted also for a bit of sandpaper placed in a hat for the purpose of striking a light for a cigar. Another patent was taken out for a piece of india-rubber placed at the end of a pencil, to enable a person to rub out what he had just written. The American gentleman was asked whether he did not consider that to be a frivolous invention?—and he replied that it was no more frivolous than were the inventions of Sir Isaac Newton. In Germany, on the other hand, scarcely any patents were granted. In one year the number amounted to only 31, and
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  two of these were for machines for making sticking-plaster; while a patent was refused to Mr. Bessemer. Such had been the result of examination in this and other countries. He feared that the system of examination provided under the Bill would not in practice be found to work satisfactorily. Many years ago monopoly used to be given in another form: there existed a system of what was called "charters of limited liability." The President of the Board of Trade used them to endeavour to institute some sort of examination before giving a charter; but he had no means of making that examination an effective one. The system gave dissatisfaction, except to the few persons who obtained them, and he was happily the means of putting an end to it. He cordially approved the suggestion that this Bill should be referred to a Select Committee. Public opinion on this subject had not yet arrived at the point which had been attained by many of their Lordships—the total abolition of patents, and the present Bill did not propose to do away with them; but their Lordships would, he hoped, go as far as they could towards remedying the abuses connected with the present system.
  THE LORD CHANCELLOR: Although the debate has not turned much on the provisions of the measure before your Lordships, yet I cannot regret that it has occurred, because it is of the greatest importance that a subject which interests so many people, and which so nearly concerns the progress of the country in its trade, arts, and manufactures, should be fully and amply discussed, and I own that I look with great satisfaction to the ripening of public opinion upon the subject—whether that opinion when fully matured shall take the direction of amending the existing system of patents or of abolishing them altogether. I cannot concur in all that has been said by the noble Earl (Earl Granville) in his valuable contribution towards the debate, although with much that he has stated I entirely agree. The noble Earl referred to the opinions of the Secretary of State for Foreign Affairs, and expressed some surprise that my noble Friend (the Earl of Derby) was not present to vindicate the opinions he formerly expressed. My noble Friend has been prevented by a slight indisposition from being present; but if he had

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  been in his place I do not believe that my noble Friend would have receded in the least degree from the opinions he has uttered. I have never been a strong-advocate for patents, as I told your Lordships on a former occasion; but, although I recognize many of the objections which have been made to them, I hope that the noble and learned Lord (Lord Hatherley) will forgive me for demurring to one of the objections which he made. He described in graphic terms the misfortunes which sometimes befall a patentee—the combinations which might be formed against him, the infringements of his patent rights, and his liability to be engaged in costly litigation. A number of law suits might be brought against him, and in such a case no doubt he might, as the noble and learned Lord stated, eventually succumb. But what objection is that, my Lords, to a system of Patents? It may be a very strong argument for altering the proceedings in the Courts of Law and Equity and making litigation loss costly; but what argument can it be against the Patent Laws that a patent now costs the inventor a great deal of money? The hypothesis is that invention is beneficial and that the inventor ought to be protected as much as possible, and if he is put to great expense the mode of proceeding should be altered so that the expense may be lessened. I think it desirable that the public should discriminate between the principles of a Patent Law and those inconveniences and anomalies which exist in the working of it. These, in place of going to the abolition of our Patent Laws, are rather to be treated as arguments for the modification and amendment. I will not speculate as to what may happen in the course of 100 years. The country may come round to the opinion that it could do without a Patent Law, and I should look forward to such a state of things with considerable complacency. But what we have to do in the present day is to see what we can do to improve the system which exists, and which by this Bill we are not going to overthrow. There have been two points raised in this debate on which I wish to say a few words. The noble Earl (Earl Granville) said it was very important to look at the machinery by which the now system was to be worked. He said that we have already several unpaid Commissioners
  938
  at the head of the Patent Department, and that now five more are to be added to the number. I can only say there has been a very general demand in the country that there should be associated with the present Patent Commissioners, who are all legal officials, some persons who are connected with the trade manufactures and arts of the country. As to their being unpaid, if these gentlemen were to have thrown upon them the responsibility of working out the details and giving opinions on patents, it would be absurd to expect them to give up their time to such a work and rightly to perform such duties. What we want from unpaid Commissioners is that the office shall be esteemed by them as one of honour and dignity, and that they will take part in setting forth and regulating a general system, which will work so as to be acceptable to the trade who are interested in it. I agree that the Examiners who are to be appointed and who will examine the patents in detail will bear the principal burden of the working of this Bill. The noble Earl says that I put an unlimited number of people on the panels and that they will be under the influence of trade sympathies and antipathies. We propose to place a panel upon each particular patent, composed of those who are not connected with the particular trade and not associated in any way with the patentee. There is to be an unlimited panel of experts, who are to be on the rota, and those who are selected will make a declaration that they have no interest in the particular patent. I will not dwell on that; but it should be borne in mind that the Experts and the Examiners are not to decide whether the patent is to be granted. They are to make a report under their hand, and on their responsibility they are to give answers to specific questions, and their report is to be sent to the Commissioners; who will then transmit it to the Law Officers; who having considered it will report to the Commissioners their opinion whether a patent may be granted or not, and if granted for what term. Here their functions end. The noble Duke (the Duke of Somerset) asked why these reports should go before the Law Officers at all, seeing that hitherto they have given no attention to the merits of patents? But that is exactly the reason why they are now to approve

  939
  the report before the Patent is issued. Hitherto they have acted without having before them the materials on which to act; but we are now going to supply them with the materials they require for forming a judgment. They are the Officers of the Crown, and they are responsible for every patent that is granted. I am not going to change the constitution of the country in regard to the Letters Patent of the Crown; but if any persons challenge the opinion of the Law Officers of the Crown—if any patentee thinks that he is aggrieved by the refusal of a patent—he may appeal to the Judge of the Superior Court. My belief is that this system will work. The noble Viscount (Viscount Cardwell) has made an objection which is not, I think, very logical. He says you have a system of preliminary examination in the United States which, in the opinion of good judges, does not work well, and therefore it is probable that a system of preliminary examination will not work well here. But because it does not work well in one country is that any reason why it should not work well in another? Another objection of the noble Earl (Earl Granville) refers to the system of granting compulsory licences. If we proposed by this Bill to throw upon any body of Commissioners the duty of deciding the reasonable term for which licences should be granted, that duty could not, I think, be performed. But it is quite a different thing to say, as we do by this Bill, that after a patent has been in operation for two years the patentee may be called upon to answer the charge that he has refused to grant licences on reasonable terms. In answer to the question how we should accomplish the refusal of patents for frivolous inventions, I refer by way of illustration to the instance just named of attaching sand-paper to a hat for the purpose of lighting a match—it might be said that such a manufacture would be new in this country, but this is a frivolous thing for which no patent ought to be granted. We cannot have a proper system unless we repose confidence somewhere to secure the rejection of applications for patents on the ground that the invention is frivolous. I do not say the power should be reposed in the Referees or Examiners without there being the opportunity of appeal to a proper tribunal, if any applicant chooses to carry the matter there. It is
  940
  quite true that in the present position of the Patent Law, it does happen that, towards the termination of the period for which a patent has been granted, the patentee frequently seeks to make a minute addition with the object of prolonging the original grant. It is this practice which one clause is designed to meet; but it may be that the words of that clause are open to consideration in Committee. Reference has been made to the effect of the Bill on the War Department and other Departments of the State. The noble Duke (the Duke of Somerset) has said that the officers of these Departments will be enabled to avail themselves of the Government plant and expenditure in perfecting their inventions, and that nevertheless the Government will have to pay for the use of their inventions. This is entirely a matter of internal administration. A Railway Company is just in the same position. The London and North-Western Company, for instance, has a large establishment with workmen who are every day finding inventions by the aid of the expenditure of the Company of which they are the servants. But the Company stipulates that its officers shall take out patents only with the Company's leave or hold them for the benefit of the Company. It is competent for the War Department to make any regulation of the kind. The question raised in the case of the Small Arms Company was whether it might disregard a private patent covering a particular arm, as the Government might have done, simply because the Company had entered into a contract with the Government for the supply of a certain number of small arms; and the contractor was rightly defeated in the Courts of Law, as there was no question of public interest involved, and the War Office had made the contract without exempting the contractor from liability to pay for any patents he might use. All that is required is that the Government should not be checked in the use of any patent article by the demand of an exorbitant price for the use of it; and this Bill provides the means by which a patent can be used without stopping the course of manufacture. That will apply as much to cases in which the Government themselves manufacture as to cases in which they enter into contracts. The idea of referring this Bill to a Select Committee, which is

  941
  to hear witnesses, appears to me to be one that can hardly be entertained, for if, after the full inquiries of the Royal Commission and of the Select Committee of the House of Commons, further evidence is still required, we are wrong in introducing this Bill and we ought to have issued a fresh Commission. We have got all the evidence we can receive; and the arguable points—preliminary examination, compulsory licences, and the position of the War Department—are matters of public interest which your Lordships are quite competent to discuss; while, if any improvements in the drawing of the Bill can be suggested, it will be my duty to have them made. I cannot see what advantage will be gained by having the points I have named discussed in a Committee upstairs instead of in this House. I hope your Lordships will not think I have any desire to proceed with undue haste; but, at the same time, I put it to your Lordships whether there is any necessity for further inquiry.
  EARL GRANVILLEsaid, that if a Select Committee was not to receive further evidence upon certain points involved in the measure there would be no advantage in referring the Bill to such a Committee; and there was no reason why the points that had been raised should not be discussed in the full House.
  Motion agreed to: Bill read 2a accordingly, and committed to a Committee of the Whole House on Thursday the 11th of March next.
  House adjourned at half past Seven o'clock, to Monday next, Eleven o'clock.