principle by a particular machine; but then his patent would have been for a machine; and if I invented a better machine for carrying out the principle, I should not infringe his patent unless my machine was a color. able imitation," The distinction now insisted on is little regarded by many who speak of patenting ideas and principles, and derive an argument from the abuse rather than the use of the system, and assume that to be part of the system, which by law is illegal. But it is said that inventors need no such encouragement; that invention is a real pleasure; that true inventive genius labors on involuntarily ; that the glory of a great name, or the possible reward of a grateful nation, is a sufficient stimulus; that the philosopher, physician, and chemist give their results to the public, who appreciate originality of mind, and do not fail to reward it. All this may be true, but it applies to the labourer in the field of discovery rather than of invention. I remember on one occasion, at a meeting in Manchester, when this doctrine was propounded, that Richard Roberts replied: "The patterns of that particular invention cost me £500; they would have been 'colted' (that is, copied) the next day but for the patent laws." The gratitude of the public is soon exhausted when the benefit is reduced into possession. However great may be the stimulus of the pleasure of invention, the advocates of this view would appear to lose sight of, or disregard, the fact that the invention and the public require adaptation to each other; that the introduction of an invention involving any material change is a constant struggle with the existing state of things, and, in a large class of cases, is as much an education as the training and introduction of a child; that it is a contest with existing practice, in which contest the inventor has to struggle with all the prejudices, capital, and influence of the existing trade and established manufacture. The history of the struggles of the introduction of new inventions, as detailed on the hearings before the Judicial Committee of the Privy Council in cases of application for the extension of the terms of patents, can hardly fail to produce the conviction that these struggles would never have been undergone but for the expectation of the reward. Many inventions are wholly in advance of the age, and would fall still-born, but for the return anticipated on the capital embarked in their introduction. There was, it is said, no patent for paper (A.D. 1200), or for oil (1297), or for glass (1300), or for the mariner's compass (1302), or for printing (1430), or for gunpowder (1450), or for many other useful inventions of world-wide utility, and therefore it is left to be inferred that encouragement to invention, or reward to the inventor, in the nature of the patent system, is unnecessary. Until the wants of mankind, or the isolated efforts of mighty minds, in the progress of civilization, had formed the alphabet, so to speak, or laid the foundation of practical arts, there was nothing out of, or upon which, the superstructure could be raised. Because skins, or the hand-made fabric, once served for clothing, can it be contended that the progress of industry, and of the practical arts, has not been most materially stimulated by the expectation, however delusive, of reward and pecuniary remuneration? Books were compiled and written before, and without any copyright laws; but does any one adduce this as an argument against the justice or expediency of these laws, the analogy of which to the patent laws can hardly be denied, notwithstanding the distinctions which may be drawn between them? It is said that things belonging to the province of copyright are an embodiment of the individual mind, which no other mind would have made; whereas things belonging to the province of patent right are capable of being made by many minds, of being originated in the same identical form by a plurality of persons; that the inventor has, in fact, only forestalled time, and that it may be presumed that the invention would have been made at some time by some other person, and would certainly have been made so soon as the want should arise; that to infringe copyright is slavishly to imitate, whereas patent right may be infringed without such imitation. The subject of copyright is one specific combination of words, letters, and lines, in this respect similar or analogous to the specific combination constituting a machine, or to elements arranged in a certain order; whereas, in many cases, inventions may be exhibited in various material forms, carrying out, or subservient to, one leading idea. Different minds do not hit on the same means for carrying out the same idea, or of attaining the same object. Invention is one continuous process of simplification, as the history of invention clearly shows. In cases of copyright, the identification is easy,-speaking to the eye or the ear; whereas, in cases of patent right, the identification is sometimes difficult, inasmuch as, to the eye, the material forms may be different. These distinctions point only to the difficulties of the subject, and must be dealt with accordingly; but the principle of property in both is the same, namely, a recognition of right in the product of the brain, as embodied in a material form. Invention being one continual progression, each stage in advance of the preceeding cannot fail, in many cases, to provoke the opposition of the capitalist, who may look with little favour on the changes which a great improvement necessitates; his old mill may have to be refilled with new machinery. Again, the capitalist in mind, who can devise an expedient for overcoming any difficulty so soon as it arrives, may not be pleased by finding that he has been forestalled by some other person; that he must respect the property which the law gives to possession, and adopt some other, and perhaps inferior, means of attaining the same end, or come to terms with the owner of that property. Hence patents have been called obstructive, likened to toll-bars on the highway. Authentic instances of such obstruction would be a great boon, and contribute much to the history of the subject; they have been often asked for-very few have ever been even pointed at. If such exist to the extent contended for, or to any extent, the remedy is very simple-make a license under a patent a matter of compulsory purchase, to be settled by arbitration, on a review of all the circumstances of the case. If the owner of land or houses has to restore to the public a portion of the ancestral property acquired from the public in former times, there can be no great injustice in requiring a patentee, on fair and proper terms, to admit others to share in that which he may be regarded as having acquired from the public: in this sense, that some other person, it may be presumed, would have made the invention when the emergency arose. The patent might be granted on this express condition, and the effect of such a system immediately tried. But philanthropic and moral considerations are introduced. The system is denounced as a lottery, and injurious to the personal interests of the inventor, who rarely obtains the reward which he expects, or to which he may be fairly entitled. Is this not part of the lottery of life? The race is not always to the swift, nor the battle to the strong. The very objection assumes an expenditure of time, labour, and money, in producing a result beneficial to the public, though not to the individual author. Let such an individual be rewarded out of the "Inventors' Fee Fund," the surplus fund to which he has contributed. Let this blot be removed. Let it not be said that a great benefactor to the public has been unrewarded, when ample funds exist, of the inventor's own creation, out of which he may be amply compensated. Let it not be said that the name of one of our greatest inventors, just removed from amongst us-Richard Roberts-should be without a national tribute, for the emancipation and development of industry, of which the self-acting mule was the pioneer; or that the family of the man should be permitted to want, in the midst of the untold millions which his inventions have added to individual and national wealth. But the principle of patents is said to be inconsistent with the principles of free trade. Here, again, I cannot but think there is some misconception and confusion in the use of language. The theory of the patent law is the creation of a trade, or, as expressed in one of the earliest reported cases, "when any man, by his own charge and industry, or by his own wit or invention, doth bring any new trade into the realm, or any engine tending to the furtherance of a trade, that never was used before, and that for the good of the realm, the king may grant him a monopoly patent, for some reasonable time, until the subjects may learn the same, in consideration of the good that he doth bring to the commonwealth, otherwise not.”* It has been said that these principles are not now applicable; that all trades are established, and that the reason does not apply, there being no necessity for the instruction; but such an observation is made regardless of the fact that knowledge and invention are progressive; that if there be not the same ignorance as in bye-gone centuries, there is a special opposition, which our very civilization has created, rendering the special property in an invention the best means hitherto desired, if not the only means, for ensuring that progress which all profess to desire. It may then be assumed, that new trades, or improvements in existing trades, which, for the question under consideration, may be regarded as new trades, are still to be created, and that it is the object of the patent laws to foster inventions constituting such new trade. The fostering care of special property in the invention is continued only for a limited and reasonable period, until the trade shall have been established; during that period the particular trade is not to be practised, or special property shared, without its owner participating in the proceeds: when that period has expired, the trade, whether established or not, is open to all, with this further advantage, that a description of the manner of practising the invention is open to all; the requirement of such a description-called the specification-having been substituted in the reign of Queen Anne, in lieu of a proviso, appearing in some private Acts for patents, requiring the patentee, during the latter half of the term granted, to take apprentices, and teach them the knowledge and mystery of the said new invention.t The principles of free trade can have no application to a trade which is * See 1 Webster, "Patent Cases," p. 6. † See Act for Bank's Invention, A.D. 1651, c. 2; 1 Webster, "Patent Cases," p. 35. non-existent, or which has to be created. If, as the theory assumes, special property in an invention be essential or materially conducive to the creation of the trade, to prohibit such property, is to prevent or delay the establishment of the trade. The supporters of this objection would appear to confound patents for inventions with the exclusive privileges declared to be illegal by the Statute of Monopolies (21 Jac. I., c. 3, a.d. 1624). It is contrary to the principles of free trade to restrain any person from, or subject him to a tax for practising, any existing trade, as a baker or brewer, or buying and selling in the cheapest market, but it can hardly be said to be contrary to the principles of free trade, to give exclusive privileges for the creation of that which does not exist, for a trade to become free as soon as established. The real question would appear to be as to the terms or conditions upon which such privileges should be granted, and not to the principle of such privileges. If patents are granted improvidently, there is an abuse of the system: remove the abuse, but do not found on the abuse an argument against the use of a system, unless such abuse is incurable and inevitable. The abolition or diminution of secret practices, with their long train of attendant evils, has frequently been relied on as an argument in support of the patent system; and the freedom with which the knowledge of inventions is now given to the world has been relied upon as one of the great improvements due to the passing of the "Patent Law Amendment Act, 1862." This, however, in thea ble paper of the Chairman of your Council on the economical effect of the patent laws, is objected to as inducing the circulation all over the world of the best possible descriptions of our most recent improvements for the benefit of our rivals. Is this generosity really detrimental to our national interests? Can any well-authenticated instances of that detriment be adduced? Isolated cases may cxist, in which some particular interest may, under special circumstances and for a limited time, be prejudiced. This is a practical test, and capable of proof; and if it should appear that in some few cases the result may be that the foreign manufacturer, by means of such information, may be enabled to compete successfully with the home manufacturer, either at home or in the markets of the world, are not the compensating advantages such as greatly to outweigh or overbalance the supposed detriment? Is such detriment in any respect comparable to the evils of the secret system of the guilds of our forefathers, when art was a mystery, and trade a protected monopoly? Are not the objections, when thoroughly examined, directed to the administration rather than to the principle of the system? Is not the proper course to reform the system--at least, to make the attempt? Time will not permit me to pursue this part of the subject in detail on the present occasion: it may be sufficient to point to the proposals which have been made for removing or mitigating the admitted evils of the present system, and which may be classed as follows: 1. That patents should not be granted as of course, but that some check should be placed on their indiscriminate issue, by a preliminary inquiry and report, by which the applicant would receive the benefit of the accumulated experience of the office of the Commissioners of Patents, in consideration of the fees paid. 2. That the validity and infringement of patents should be tried by a 1st judge, assisted by two or more assessors conversant with the subject, selected by the parties or by the judge from a panel provided for the purpose. 3. That the owner of a patent should be required to grant licenses, or to sell the whole right for the benefit of the public, on adequate consideration. 4. That the fees paid on patents should constitute an "Inventors' Fee Fund," to be applied wholly to inventors' purposes, to the reward of meritorious inventors, to the repurchase of patent rights, and the advance of practical science. Provisional Protections Granted. [Cases in which a Full Specification has been deposited.] 701. John Beale Jude, of Watering- 731. Augustin Morel, of Roubaix, 1864. 30th. 832. Charles Darwin Tisdale, of Massachusetts, U. S. A., an invention having reference to railways and the carriages thereof.-April 2nd. 900. Ernest Dronke, of Liverpool, mode of manufacturing gunpowder suitable for war, mining, and general purposes, -a communication. April 11th. 921. William Newton Wilson, of High Holborn, impts. in machinery for sewing, stitching, and embroidering, -a communication.-April 12th. [Cases in which a Provisional Specification has been deposited.] 1863. 3088. Theophilus Alexander Blakely, of Montpelier-square, impts. in metallic packings.-December 8th. 3307. John Dale and Heinrich Caro, of Manchester, impts. in obtaining colouring matters for dyeing and printing.-December 31st. 1864. 31. John Williams, of Ketley, Salop, and George Bedson, of Manchester, impts. in puddling furnaces.-January 5th. 215. Leonard Lindley and Frederick Taylor, of Nottingham, impts. in machinery for sewing, whipping, embroidering, and fringeing.-January 25th. 253. Robert Burns Thompson, of Glasgow, impts. in brakes applicable to carts, waggons, lorries, vans, and porters' barrows, and in machinery, apparatus, or means for working the same.-January 30th. 286. William Watson and William Henry Watson, of Leeds, impts. in the manufacture of blue color, for dyeing and other purposes. -February 3rd. 292. Henry Edwin Drayson, of South ampton, impt. in the manufacture of gunpowder.-February 4th. 315. William Taylor, of Shiffnal, and William Molineux and Henry Harrison, of Hollinswood, impts. in puddling furnaces for the manufacture of iron. |