MINUTES OF EVIDENCE ON THE PATENT-LAWS. improvements are withheld from being published on account of the difficulty and expense of taking out a new pa tent. Thinks it would be desirable that a patentee should be required to carry his invention into effect, within a limited period, or lose his patent. Is aware that it is a rule of law not to grant patents for abstract principles, but considers it an inconvenient rule; a person may not immediately have a technical mode of applying a principle, and a principle may be applied in half a dozen different ways. Thinks it very bard that from an imperfect plan a good principle should be lost; and believes that the prohibition to inventors to claim a patent on abstract principles often leads to an unnecessary multiplication of details in specifications. by which the public is really left in the dark as to what is the nature of the invention for which the patent is taken out. Is of opinion that the rule that there shall be only five persons named in a patent is an inconvenient one; because in many cases an inventor may not be able to raise a capital sufficient to carry his intention into effect, which might be done if a greater number of persons could be introduced to a share in the invention. Believes, however, that the rule is sometimes evaded by putting in names under licenses, or as trustees for others: as the law now stands, the person applying for a patent must swear either that he is himself the inventor, or that the invention has been communicated to him by a foreigner residing abroad, and no British subject can take out a patent for an invention communicated to him by another British subject; but witness sees no policy at all in this distinction between the communications of foreigners and natives, and has not the least doubt that it is often the cause of patentees perjuring themselves. Considers the expense of a patent a great objection; also the difficulty of maintaining it in courts of law. Does not conceive that the present expense is necessary to check frivolous applications, or that it does serve to check them: the defence of the patent is one of the most expensive kinds of defences, on account of the sort of witnesses that are generally necessary; it has become the fashion of late to subpoena a number of eminent scientific men, some perhaps brought from a great distance. The expense of defending a patent has now become enormously great. Questions on patents are sometimes tried by special juries; do you know VOL. XII. 369 whether any inconvenience arises from that sort of tribunal? It is difficult to get counsel to explain a case properly to the jury, and to get their attention excited to the inquiry; it is very diffi cult to explain even to gentlemen who have more attended to this kind of subject, and requires most expensive models to be made it is very often exceedingly difficult to make even the judges understand. Do you not think it would be better if a commission could be formed of scientific men, who are accustomed to the thing; that it would be a much cheaper and better mode ?-I think it would be a better mode, as it would avoid all that immense train of scientific witnesses often conflicting with each other, which adds so much to the expense. Do you think that a tribunal of scientific persons would be a purer tribunal than that composed of persons in discriminately chosen? I do not think it would be a purer tribunal, but I think it would be as good a tribunal, and might be much cheaper. Do you not think that it would be much purer and more competent?—I think it would be as pure." Do you imagine confidence would be placed in such a tribunal?—I dare say there would be jealousy; I do not mean to say a commission would be quite satisfactory. If a commission were appointed must there be a commission for each case separately?—I should think there must; 8 commission might be something in the way of arbitration. Do you not imagine that in consequence of the expense and difficulty of defending patents there are successful attempts at infringement in many cases; I should think so: the case of the Kaleidoscope, for instance; it would have been quite impossible to have defended that patent; they, must, have brought five hundred achos. Davies Gibert, Esq., a Member of the Committee, examined. What is your opinion of the policy of the present law in granting patents upon abstract principles?-1 conceive that the invention of a principle is a much greater achievement, and much more likely to produce great public benefits than the invention of any mode of applying a principle already known; I therefore think that a fortiori there should be protection given and encouragement held out to the discoverers of new principles, and that they should be 2 B 370 MINUTES OF EVIDENCE ON THE PATENT-LAWS. secured to the inventor for the legal number of years; but always assuming that some practical mode of applying them to useful purposes make a part of his invention, and is included in the specification; and then I think that the inventor should not lose the benefit of his temporary monopoly in consequence of another or even a better mode of ap. plication being discovered. What is your opinion of the expediency of appointing a commission composed of scientific men and lawyers, to examine a specification before it is enrolled to ensure the patentee from having his patent afterwards impugned I think it would be highly expedient that some person or persons more competent to judge of scientific matters and inventions than Attorney-Generals, from the course of their ordinary pursuits are in general to be found, should be called to his assistance; but I would not preclude either party from any subsequent legal remedy he may choose to adopt. You would not have a commission then to inquire whether the specification really agreed with the invention or not? So far as it went to guide the opinion of the Attorney-General as to granting patents at all, and to whom they should be granted, I think it would be highly useful; but I entirely dissent from any opinion which would give authority to such decisions, so as to preclude persons from recovering afterwards in a court of law. What is your opinion of the policy of the law which vitiates a patent, if one feature of the invention, described in the specification, is proved to have been known before the sealing of the patent? I think it is inexpedient, unless fraud can be proved. Do you think a tribunal of scientific men would better decide the validity of a patent than if it was tried by a court of justice?-It must frequently happen in a court of law that neither the counsel nor the jury are qualified, by their previous knowledge, to decide on such cases; and consequently men of general science, acquainted with the subjects in dispute, must be more competent to forming accurate judgments respecting them; but I am not aware how a tribunal of such persons could be formed, unless it was done through the medium of a reference-the definition of a man of science would seem to be a matter of no small difficulty. Do you think it would be convenient to have a commission of scientific men and not a jury?-I think they would be more competent to decide; but public opinion would probably not be so confident of their exemption from bias, from esprit de corps, perhaps from infiuence, as in the case of our ordinary tribunals. Mr. Gilbert further stated it to be his opinion, that it should be lawful for a person to take out a patent for an invention communicated to him by a British subject, provided that it appeared the communication was voluntary, and that it would be advantageous to allow individuals to secure a monopoly of less than fourteen years on paying diminished fees. 11th May, 1829. Mr. John Farey, Engineer, examined. States, that he has had considerable experience in the practice of taking out letters-patent, and assisting inventors to support their patent-rights at law when disputed. That the expense of a patent for England amounts to 120l., for Scotland 100%., for Ireland more than 125!., and that there is a small addition if the patent includes the Colonies; that these sums include an average of engrossing and stamps for the specifications; the charge varying with the length of the specification. That there are further charges depending on the difficulty of preparing the specification, which are not included in the above sums, and which in one case of a very intricate invention, where there were patents for all the three kingdoms, amounted to about 200l. That when it is desired to extend a patent to one of the Colonies, it requires an express act of the colonial legislature, to enable disputes, on the patent-right to be tried in a colonial court of justice, otherwise they would have to be judged here, which would increase the expense of law-proceedings beyond all bounds. That the time required to obtain a patent is said to be six weeks; but whether they have ever been obtained in six weeks or not, witness cannot say; they are certainly now two months upon the average, and that is frequently extended to a much longer period. That during the time between making the application and sealing the patent the applicant has no security whatever for his invention; there is even an increased necessity for secrecy beyond that which existed before his application, because his application has called attention to his procedings, and declared what is the object of his pursuit. A man who has proceeded with some freedom in his experiments, and MINUTES OF EVIDENCE ON THE PATENT-LAWS. in private trials of machinery, be fore he applies for his patent, is always obliged to shut up his models, and desist altogether, until he obtains a patent: for by his application he calls the attention of all rivals to his proceedings; and any disclosure of his invention made before his patent is sealed, (however treacherously obtained), would be fatal to his patent. It is a common practice of manufacturers, if they begin an invention solely for their own use, without any thought of a patent, when they have obtained such a prospect of advantageous result as to see that a patent would be desirable, they destroy all the models, and every vestige of them, and even send away the workmen who made them on some distant embassy, to avoid any chance of the secret being called forth by the competition that exists among rival traders as soon as one makes an application for a patent that this is a very great inconvenience, and the cause of much valuable time being lost to the public as well as to inventors. That it frequently happens that patents are delayed very long in their progress through the offices, so as to occasion a very great grievance. That opposition often grows up in the meantime, which the applicant is obliged to meet at considerable expense, and at the risk of still further delay being occasioned. That titles are often worded obscurely, in order to avoid directing public attention to the subject; but that there is a danger in being too obscure, because then a court of justice may afterwards hold that it is an invalid patent for want of coincidence between the title and the specification. That the remedy for this is obvious; namely, to make the right of the patentee secure from the time he makes his application, on condition of his lodging a paper of the heads of his invention, as is the case in Spain; or that the final specification and description of the means of executing the invention should be engrossed in the pa tent itself, so that the title of the patent instead of being the only means of reference between the two documents, should become a mere indorsement, and a matter of no importance, as is done in France. That as our practice is now, if the judges cannot find in the title of the patent what has been called a general index of the specification, the whole patent is set aside; but that the difficulty of making a correct general index to a work not yet composed is necessarily very great. That it has never been decided with precision 371 what constitutes such a publication as should vitiate a patent; but witness infers from the concurrent opinions of counsel of eminence, that even the divulging of an invention by a person to whom it had been confidentially intrusted, would be held to have such an effect, though of course the inventor would have a remedy against the betrayer of his secret by action for damages. Witness has a confused recollection of a case between Finch and Dickenson, in 1803, when a person who had committed a breach of trust of this kind, and taken out a patent in his own name instead of for the joint benefit of both parties, was cast in 3007. damages, and ordered to resign the patent to the plaintiff. That it has been decided that if a person has made an invention of the same nature as that for which a patent is sought, and has carried it on secretly, this secret exercise of the invention will not preelude the ap plicant from taking out the patent; but then if the person so carrying it on secretly should make it public, in the interim between the application for the patent and the date of the patent, that will render the patent nugatory. That the public have no means of becoming acquainted with the fact, that an application for a patent has been made before the patent is sealed; but that individuals may obtain information of all applications for patents in regard to any particular matter in which they are interested, by lodging a caveat at any of the offices through which patents are expedited. That to a person intending to apply for a patent, a caveat is only of use in the case of his having disclosed his intention to some agent, or associate, or patron; and having reason to suspect that such person may apply for a patent himself before the inventor is ready with his application, by lodging a caveat he will have notice of and detect the treachery before it is too late. That in general, however, the lodging of a caveat by a person intending to take out a patent is a bad measure, from its calling attention to the inventor's proceedings. That in the case of two applications for a similar invention, the rule, according to witness's impression, is to give the first applicant the preference, providing always that each has invented independently of the other; but, in such cases it is usual for the AttorneyGeneral to recommend to the parties to combine their interests, because it is in the power of the latest applicant, by a previous public disclosure of the inven tion, to render nugatory any patent that 372 MINUTES OF EVIDENCE ON THE PATENT-LAWS. may be granted to his rival. That in all such cases of rival applicants, the Attorney-General is the sole judge, nor does he ever call in any assistant by way of assessor. That it is not felt in practice to be an inconvenience that such a power should be lodged with a person not very competent to decide scientific questions, because the Attorney-General almost always sees sufficient ground of new invention to grant both patents. That oppositions are of no effect; and the result is, that a man can get a patent for any thing, unless it be a notoriously old invention, and even then very slight alterations will make it appear new to a person unacquainted with inventions. That an opposition is in truth a mere formality; and that if any of the Attorneys'- General witness has attended (unless the present Lord Chancellor might be excepted) had attempted to exercise a judgment between contending inventors, it would have been very mischievous in many cases, and never productive of any good-patents being at all times subject to be annulled by a court of justice. That the Attorney-General almost uniformly recommends the King to grant a patent; and when there are two applications for similar inventions allows both patents to pass, though there might be a chance on a very close inquiry by competent judges of finding a collision. That it is only in the case of an opposition that an applicant for a patent is obliged to give a general description of the nature of his invention to the Attorney-General; and in witness's opinion, it is a great evil that applicant is not in every case fixed to what he does intend to specify. That there are speculators or patent jobbers who, the instant they find out that a person of talent is occupied with an invention; apply for a patent with a title sufficiently general to cover the invention; and having thus got the start of the inventor, if they can by any means get at the invention before the time of specifying, they have a good chance of making it their own: for even if the real inventor gets notice, and makes opposition, he is the second applicant, and is almost always obliged to make it a joint property; because, unless he can prove the fact of the plagiarism, the Attorney-General can rarely be convinced of the identity of the same invention, when differently explained by two parties, with different models or drawings. That a patent was granted (to Colonel D'Arcy) on the 29th November, 1828, but not yet specified, intituled, "For certain improvements in the construction of steam-engines, and the apparatus connected therewith;" and the patent gives 19 months to prepare the specification: now whatever that patentee can find out by any means in the course of the 18 months he may bring forward in the specification, and nobody can prove that he did not possess the invention at the time of his application. That it would,in the opinion of witness, be advisable that the applicant for a patent should lodge a kind of temporary specification of the principles of his invention, as is done in Spain, and be secured against the effect of treacherous or rival publications of the same invention before the sealing of his patent. That the practice in France and America is to require a complete specification in the first instance, but this witness would not recommend; he would propose that there should be only a temporary specification in the first instance, containing a definition of the principle and object of the invention, leaving the applicant afterwards to prepare a more complete specification when he had organised and proved the means by which the invention is to be carried into effect; and that such final specification should only include such matters as are in the opinion of competent examiners a fair extension of the statement of the original idea, as expressed in the temporary specification first deposited. That as matters now are, a patentee is not obliged in any way to declare what his invention is till he puts his specification to the patent previously granted to him, and in the mean time he may change his plan within all the latitude that the generality of the title will permit. That there is no legal limitation to the time allowed for lodging a specification after the issuing of a patent, and that it is quite discretionary with the Attorney-General how long time shall be allowed; but that the custom is to allow in the case of a patent for England alone two months; in the case of England and Scotland four months; and where the patent is for the three kingdoms six months. That some ten or fifteen years ago there were several patents granted with eighteen months to specify; but that great complaints being made of the practice, it was put a stop to by Lord Eldon, and that there have been none till the recent instance before-mentioned. That though it is essential to allow a long time for getting sufficient specifications made of im portant inventions, yet on the other hand it is an excessive grievance to per MINUTES OF EVIDENCE ON THE PATENT-LAWS. sons engaged in like pursuits when there is no provisionary definition of the legal right conferred by a patent made public. That it is the practice in all other countries to allow patents to be taken out for long or short periods, at the option of the patentee, and to diminish the expense in proportion to the limitation in the time; but that the adoption of such a plan in this country would not in the judgment of witness be advantageous, because patents for profitable objects would always be taken for the longer term, unprofitable ones become extinct of themselves; and were patents made cheaper, it would tend to multiply the number of patents for trivial inventions. That it often happens that after a person has taken out a patent for an invention, and lodged his specification, he makes some material improvement which makes it necessary for him to take out a new patent; but that witness would recommend the adoption of the practice followed in France, where, as improvements arise, successive specifications of these improvements can be added at a small expense. That the French mode enables a patentee to give validity to his patent, even though in the first instance it may have been defective, while with us there is no remedy whatever for a defective specification, excepting taking out a new patent That the English remedy for a bad specification is merely penal-the patent is held to be invalid; but that the public have no advantage from this whatever-they do not get any more complete specification by annulling the patent. If a patentee were compelled to bring a better specification there would be a real advantage; and if he refused to do so, then the present penalty of forfeiture would be very properly applied. Do you think that the public would have any security against such imperfect specifications by the appointment of a commission to examine the specification before it was enrolled?-It would be very easy to have specifications examined and verified either by a competent commission, or by suitable referees. The courts of justice now trust to the examination and opinion of others, but they do it in an improper manner, because it is by parties brought by interested individuals, and when it is too late to amend any defects. I think that the final specification ought not to be enrolled at all till it is made sufficient. A commission well constituted would determine that and many other points very well; but I think it would ་ 373 be very objectionable that any previous examination should take place as to the merit of inventions, because it is impossible to foresee which will by future cultivation grow up to maturity, and which not; every one should be allowed a fair chance. You would propose to secure to the applicant from the time of his application his right to the principle of his invention -Yes, to the invention of which he details the heads; and all such fair developement of these heads as he is prepared to specify completely how to practise them, at the time when his (final) specification is due, or with such extension of that time as is reasonable. So that before his patent is issued he should be required to enrol his specification?-Yes, in order that the speci fication may be transcribed in the patent itself, having been first approved to be sufficient. By a record of the heads of an invention, could you so secure to the applicant his invention as to leave him at sufficient liberty to pursue his invention for the purpose of making a com plete specification?-I think he ought to be bound to be able to define his. principle very accurately at his first application, because he ought not to be allowed even to apply for when his invention is a mere vision; a patent he ought not to come until he has done all that can be done mentally by himself and by projection on paper, so as to be fully prepared to state all the principles or heads of his invention, leaving nothing remaining to be done but what requires to be decided by experiment. Will you instance in the case of Mr. Watt's improvement in the steam-engine the improvement of the process in the proposals which you suggest for obtaining a patent?-I think that the deed which Mr. Watt enrolled for his specification ought to have been lodged at the time of making the first applica tion for his patent, and he should have been allowed at least two years for making engines and the experiments necessary for specifying the means by which those principles should be carried into execution; within that two years he should have made such a specification as would have really instructed competent workmen how to practice the invention, whereas that knowledge never came before the public from Mr. Watt till long after his patent was dated, and then only incidentally, not by the operation of the law. |