CHAPTER III.

OF PATENTS AS A MODE OF REMUNERATING INVENTORS.

THE propositions admitted, that it is both politic and just-having regard to the progress of the useful arts—to provide some mode in which inventors may derive personal profit from their contributions to that progress, the next point to be ascertained is the best mode.

That which is the most obvious, is the payment by the state of a stated price or premium, but there are many and obvious objections to this mode. It could not be practically carried out with even justice to the public and to inventors, and it would entail a cumbrous and arbitrary system peculiarly open to abuse. It would be necessary either that the law itself should ascertain and fix valuations for inventions generally-manifestly an absurd and impractical thing, and one which, if attempted, would work injustice, sometimes to the public, and sometimes to inventors,—or the fixing of values must be left to tribunals, whose decisions would, of necessity, be arbitrary and unsatisfactory, since they could not apply to the determination of the question the only reasonable and just test, that of experience.

These, and other objections equally obvious, but to which it is not to our purpose here to allude, make it plain that a system of this kind would not well answer the end

of promoting the progress of the useful arts.

The objections which we have cited, going to show what is not a good and efficient mode, point to the principles necessarily governing a mode which is so

It is just and proper that a new and useful invention should be paid for by the public, in proportion to its proven value to the public, and that the mode of valuation should be the same as in the case of other products of individual skill and labor.

The public verdict, as evidenced in demand, is the best general test of the value of an article, and the profit derived from manufacture and sale, if these be carried on with proper enterprise and discretion, will be in proportion to the value.

This is the philosophy of that mode of paying inventors which is known as the patent system; a mode the most just and reasonable that could be devised.

Letters-patent grant to the inventor of a new and useful improvement the exclusive right, for a stated period, of making, using, and selling such improvement

If an invention thus secured for a time by patent be really valuable and important, it is of course desirable that it should be brought into public use as speedily and widely as possible, and here the interests of the public, and those of the inventor are alike, for the advantage which the latter can derive from

his patent, must altogether depend upon his diligence and discretion in availing himself of the exclusive right which it gives him. If, on the other hand, the invention be of no value and importance, the exclusive right of the inventor is altogether harmless; it will be practically no restraint upon the public, and will bring the inventor no more than he is entitled to.

Patents-in so far as they operate as a restraint upon the public-are yet decidedly beneficial restraints, for during the term of the inventor's exclusive right, the public are benefited in the open practice by the inventor himself, or those acquiring the right from him, of an invention, which, but for the prospect of that right, might not have been made, or having been made, might not have been disclosed. So far as the exclusive right operates as a tax upon the public, it is a tax justly proportionate to the ascertained value of the consideration given by the inventor; and after the exclusive right has expired, the public freely use the invention themselves, being enabled to do so by the knowledge which the inventor has imparted to them. These then are the principle and the object of a patent system: to promote the progress of the useful arts by extending to inventors that encouragement to exert their ingenuity, and disclose their inventions, which can be given with most advantage, both to the inventor and the community, in the shape of a

temporary exclusive right to the former to make, use, and vend his invention.

Thus viewed, the patent laws assume the aspect of a compact bef tween inventors and the public, by which the public in consideration of the disclosure by the inventor of an original thought which it is not compulsory upon him to disclose, yet of which, without such disclosure, neither he nor they can have the use and enjoyment, undertake to secure to him for a limited period, by positive grant, that exclusive right in his invention, which without such positive grant, it would be impossible for him to maintain.

The policy of patents as a means of promoting the progress of the useful arts, has been disputed, never seriously, however, in this country. In England the proposition has been made, and urged more loudly than forcibly, to abolish patents; but there the would-be abolitionists are a very small minority, and their views have been vigorously and successfully combated by some of the leading intellects of the country.

Holland stands alone as the country which has abolished patents. The abolition occurred in 1869, the royal proclamation stating that "the grants of exclusive rights for inventions and improvements or importations of objects of art and industry promote neither industry nor public interest."

In its experience on this subject, Holland seems to be as exceptional

a country as it is in everything else. "Such a land as Holland," says a recent American writer, "exists nowhere else. It is not merely the most singular of kingdoms, it is the only one of its kind. You may travel the world over and yet be unable to form any conception of the Netherlands. You may live there your life long, and form no adequate idea of the remainder of the globe."

It is not at all unlikely that among a people so conservative and selfsatisfied as the Hollanders, patent laws did not promote industry. The people, though robust, brave, and industrious, appear to have a horror of innovation, as is attested by their obstinate adherence to sleighs in place of wheeled vehicles, for drawing heavy loads over rough pavements. Little progress in the useful arts is to be expected in a country where men and horses continue to be shod with wood, and where men, women, and children are still to be found yoked to the same tow ropes with dogs and donkeys on the banks of the interminable canals.

It may be very true that the Dutch patent law did not promote the progress of the useful arts in Holland; great progress would scarcely be expected among a people so obstinately conservative, no matter what incentives were offered; but the Dutch law was so intensely selfish in its character that it would scarcely be expected to promote any public advancement in the arts, one of its prominent clauses being to the effect

that a native forfeited his patent if he secured his invention in any other country.*

The patent abolitionists were unfortunate in pointing to the example of Holland, a country where the limited manufacturing interests are at a standstill, if not retrograding, and where the prominent products are gin, tulips, and cheese.

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Switzerland, a country which never possessed any patent laws, is also pointed to by the advocates for the abolishment of patents. In respect to Switzerland, Mr. Day, in his able papers read before the Philosophical Society of Glasgow, papers from which we shall have to quote hereafter, says: When do we hear of an important invention coming to maturity in this country? There is plenty of inventive talent in Switzerland, but Swiss inventors lack the stimulus of a patent law, and, therefore, have to come here or go elsewhere where an invention can be patented, and is recognized by the state as bonâ fide property."

To again quote from Mr. Day's book: "The patent system is the only one by which a nation can secure the maximum advantage from the invention, the only one by which invention is properly encouraged, the only one by which the real value of

*A Dutch legislator, in advocating the abolition of patents, declared that it was useless to point to the United States and England in support of Patent laws, because those countries were in a degenerate condition, not better than that of Holland at the close of the sixteenth century.

an invention can be ascertained, and, therefore, the only one which can secure not merely reward, but a due reward, precisely its exact worth to the inventor."

CHAPTER IV.

ESSENTIAL FEATURES OF A GOOD

PATENT SYSTEM.

ASSUMING it to be politic and just to provide some mode in which the public shall pay inventors for their contributions to the progress of the useful arts, and that the best mode is by a properly devised patent system, we come next to consider what should be the characteristics of such a system. Undoubtedly the soundest patent law is that which treats inventors with the most liberality, on the plain grounds that the more liberal the law, the more it is likely to answer its public purpose of promoting the progress of the useful arts, by inducing the production and disclosure of new inventions.

But this idea of liberality to in ventors is not to be carried so far as to lose sight of the public object of the law, and of the fact, that having a reference to that object, inventors are simply the instruments and means. In other words,, it is not to be forgotten that the utility of inventors to society is the consideration upon which the legal rights peculiar to them as inventors are based; that they occupy pre

cisely the same footing as other producers to the public stock, and that society, in contracting to pay them, has the right to establish such provisions and conditions, as are necessary to assure that in each case the effect of the contract shall accord with its object and with the general welfare.

If these principles were continually and clearly borne in mind, we should have less of that criticism of the patent laws, based upon the false assumption, often expressed, that their one object is to “protect inventors." That is their end so far as concerns the particular interests of inventors, but they have a superior and public object, that of promoting the progress of the useful arts; with reference to this object, the "protection of inventors" is simply the means.

The proper liberality of the law to inventors is based not upon poetic sentimentality but upon perfectly utilitarian grounds and principles of practical justice.

Of the patent laws, therefore, as of any other contract, the justice is to be measured by the degree to which they appear to consult and reconcile the interests of all parties concerned, and to proceed upon the truth that the intended beneficial operation of the bargain must be destroyed by any provisions tending to antagonize the interests of the respective parties.

If this test be applied to our own patent system, we believe it will be

found that the provisions and conditions which seem to be in the interests of the public, are also really to the advantage of inventors; that the same precautionary measures work to the profit of both parties to the contract.

But before proceeding to apply the test, let us see what are the leading principles which, having due reference to the object to be attained, may be considered as essential to be recognized and followed by any sound patent law.

It is evident, to begin with, that hew and useful inventions only, can be the subject of valid patents; for if an inventor produce and disclose something which is not new, or something which cannot be used, or which it is against the interest of society to allow to be used, he simply gives society that which it had before, or that from which it can derive no benefit: which is to give nothing; so that society owes him nothing. A patent, therefore, granted for such an invention, would be invalid for want of consideration.

Presuming the invention to be new and useful, it is no less essential to the validity of the patent that it shall have been fully and fairly disclosed by the inventor; otherwise his part of the compact has not been carried out in good faith. There must be no concealment, no deception, but the information given must be sufficient to guide those skilled in the art to a beneficial use of the invention, so that the public may

fully and freely advantage by it after the expiration of the patent.

In addition to this it is essential that the inventor shall have clearly pointed out and particularized what he claims to be original with him, that the public, during the existence of the patent, may be fully advised as to the nature and extent of the exclusive right which it confers, and as to what it is they are restrained from making, using, or selling, save with the permission of the patentee. As to this there should be no dissimulation, duplicity, or dubiousness, but a clear and candid statement of claim.

Now it is manifestly just both to the public and inventors to insure as far as possible that none but valid patents shall be granted; that is to say, such as do in truth bestow that exclusive right which they purport to bestow.

This is just to inventors, because the value of patent property, as of any other, is in proportion to its ascertained degree of certainty and security; and just to the public, because the issue of valid patents only is plainly an important element in the efficiency and public advantage of a patent system.

It would seem then to be the important end to which the provisions of a patent law should primarily be directed, to confine the issue of patents as far as possible to inventions new and useful, clearly disclosed, and distinctly claimed. A second object to be realized to