NOTES OF SPEECH OF MR. MACFIE, M.P. (continued 2)

How emphatic was Mr. I. Kingdom Brunel:—

“Do you think that there would be an equal inducement for a man to turn his attention to improvements if there were no Patent-Laws, as compared with the present state of things, which lead him to the expectation and hope that he will obtain some exclusive advantage from the discovery of some new improvement?

“I feel certain of it; I have felt it very strongly, and it always struck me as surprising that it was not seen by everybody else; but we have so long been in the habit of considering that the granting of an exclusive privilege to a man who invents a thing is just and fair, that I do not think the public have ever considered whether it was, after all, advantageous to him. My feeling is, that it is very injurious to him.

“My impression is, that in every class of inventions you would practically in the end have a more rapid supply and increase of inventions than you have now; I believe that men of science, and all those who do it for pleasure as well as for profit, would produce more, they would be less interfered with by existing Patents, and they would really produce more; I believe that the working class, the smaller class of inventors, would introduce very much more. With respect to that class of inventions, which I believe to be very few in number, though they are talked of very much, which really involve long-continued expenses, I believe they would probably be brought about in a different manner. I wish, however, to have it understood that I limit my observations to the present state of things. I do not wish to express any opinion as to what might have been formerly the effects of Patents, or whether they did originally encourage inventions or not. I believe that in the first place they are very prejudicial, on the whole, to a large class supposed to exist of inventors, and principally from these circumstances: the present state of things is this, that in all branches, whether in manufactures or arts of any sort, we are in such an advanced state, and every process in every production consists of such a combination of the results of the improvements which have been effected within the last twenty or thirty years, that a good invention now is rarely a new idea.”

So likewise Mr. James Spence:—

“The evils of the present system are serious. There is a charm in the name of a Patent which entices large numbers of men to neglect their own affairs in pursuit of some phantom. Where intellectual power exists of an inventive character, it will develop itself without any spur; it is, indeed, irrepressible in its nature. To such minds the stimulus of a Patent is superfluous.

“Besides the progress of the arts, another change has occurred which affects this question. Formerly improvements made slow progress, and unless an inventor were protected for many years he had little chance of recompense. Now the power of advertising is so great and intelligence is so diffused, that any really useful invention can be brought immediately into operation and profit. Were Patents abolished, any one with an invention of value could find a manufacturer to take it up. It is true it would be open to the rest of the world as soon as found out, but the manufacturer would obtain the first start of all others, in itself a profit. Under the present system the legal protection breaks down in practice. The moment a specification is published, competing manufacturers strain their wits to contrive how to reach the same result through other means or modifications; in other words, how to infringe. Against this the patentee has no remedy, except proceedings at law of the most costly nature.

“No change can be proposed in Patent-Law that will not be open to objections based on individual cases of hardship; but, on a comprehensive view of the subject in all its bearings, I hold that it would benefit the country to abolish the system in toto. Manufacturers would be relieved from present perplexity, delusions would no longer be kept up by excitement, an enormous waste of money would be stayed; and whilst the mass of worthless Patents would disappear, any of real value would be taken up on its merits and produce sufficient remuneration to the inventor.”

The Report of the Commission, founded on the evidence of which I have shown the general character, contains the following just observations:—

“The majority of witnesses, however, decidedly affirm the existence of practical inconvenience from the multiplicity of Patents. It is clear that Patents are granted for matters which can hardly be considered as coming within the definition, in the Statute of Monopolies, of ‘a new manufacture.’ It is in evidence that the existence of these monopolies embarrasses the trade of a considerable class of persons, artisans, small tradesmen, and others, who cannot afford to face the expense of litigation, however weak the case against them may seem to be; and a still stronger case is made out as to the existence of what may be called obstructive Patents, and as to the inconvenience caused thereby to manufacturers directly, and through them to the public.

“Other instances will be found in the evidence of particular manufactures and branches of invention which are so blocked up by Patents, that not only are inventors deterred from taking them up with a view to improvement, but the manufacturer, in carrying on his regular course of trade, is hampered by owners of worthless Patents, whom it is generally more convenient to buy off than to resist. The evil also results in another practice, having the same obstructive tendency—namely, that of combination amongst a number of persons of the same trade to buy up all the Patents relating to it, and to pay the expense of attacking subsequent improvers out of a common fund. From a comparison of evidence, it cannot be doubted that this practice prevails to a considerable extent. We must also conclude that when the obstruction is not to be got rid of without the expense and annoyance of litigation, in a large majority of cases the manufacturer submits to an exaction, rather than incur the alternative.

“We desire to call special attention to the evidence given by the First Lord of the Admiralty, and by various witnesses on behalf of the War Department, showing the embarrassment which has been caused to the naval and military services by the multitude of Patents taken out for inventions in use in those departments.

“It has long been the practice, founded on judicial decision, to consider that the use or publication of an invention abroad did not deprive that invention of the character of ‘a new manufacture within this realm.’ It appears to us, and is generally admitted in the evidence, that the present facilities of communication subsisting between all parts of the world have done away with the only valid reason for such a construction of the words of the Statute of Monopolies. The object of allowing such Patents might fairly be, in an age of slow international communication, to encourage enterprising persons to go in search of, and to introduce to this country, useful processes employed abroad, but not otherwise likely to be adopted here, for the want of which we should long have been behind other nations. It does not, however, seem worth while to continue the same facilities now, when foreign inventions are most frequently patented in this country and in their native land simultaneously; especially, as we are well informed, that one result of the practice is to encourage unscrupulous persons to steal the inventions of foreigners and to run a race with the legitimate owner to get them patented here.”

The extracts which I have culled sufficiently prove that, in the opinion of men selected because they were competent to speak with authority on account of their character, ability, and experience, our Patent system is “generally inconvenient” and is “hurtful to trade.” Being so, it is inconsistent with the conditions on faith of which, while other monopolies were prohibited by the Act, it was spared. But I rest my case on absolute evils, without regard to that inconsistency. I am sure nobody can go over the evidence as a whole, or even those scraps of evidence which I have presented—I am well aware in a very promiscuous and ineffective manner—without becoming convinced that the trade and manufactures of this country are seriously obstructed, fettered, retarded, harassed, and burdened, sometimes demoralised, often wronged, or even robbed, by the multitude and vexatious character of Patents, and by the claims and conduct of patentees;—that these Patents, though very numerous, in general possess little merit, yet often produce large revenues, the result of exactions from persons who use them, to the assignees, rather than to the original grantees,—that the uncertainty of receiving a good return (in place of which experience shows there is, in most cases, disappointment or even positive loss), and the utter incongruity existing between the earnings, where there are any, and the merits of inventions, render the system of Patents an exceedingly unsatisfactory way of stimulating invention or rewarding inventors;—and that there is wide-spread dissatisfaction with things as they are, yet despair of amendment, among the most intelligent of those portions of the community for whose benefit the system is plausibly represented to exist.

The evidence goes to show that the poor man and the working man suffer in two ways. Such cannot bring their inventions into play for want of capital, and they could not, even if it were in that respect different, make head against rich infringers who are able by the costliness of law proceedings to set them at defiance. I might allege, also, that while the expenses of patenting are clearly too heavy to suit the circumstances of the poor, there is little or no favour shown by any influential witnesses to propositions for reducing them, because of the tendency that a suitable reduction would have to still further multiply Patents. Surely this indicates sufficiently that there is something radically wrong in the principle on which we proceed.

Allow me, while adverting to the case of the poor, to express my belief that the Patent system has an effect on wages which demands the serious consideration of the friends of working men. I believe it helps to keep wages low. The abolition would work in this manner: whenever, in any establishment, an improvement is introduced, the fact of its use becomes, of course, speedily known throughout the establishment and in other establishments. The employés who in their ordinary occupations must come to know what the improvement is and how to work according to it—for this is a matter of necessity, especially now that operations are conducted on a large scale, with the indispensable aid of men intelligent and independent—very soon find they are in request. To prevent their leaving, they are offered an advance, which itself in its turn may be outbid. The rise which indisputably would result in the case of individuals will, in my opinion, tend towards a general rise. If I am correct in my anticipations, operatives and artisans are much injured by Patent-Laws. But independently of this hypothetical advantage, a good system of dealing with inventors will be beneficial directly to operatives, by removing from trade the present hindrances.

Having seen how little store there is set on Patents by eminent engineers, by manufacturers, and by the public services, let me appeal to eminent statesmen. Among these I name foremost the apostle of free-trade. Mr. Cobden told me, many years ago, that he was opposed to Patents; and at a later period, Oct., 1862, he wrote:—

“I have a growing doubt of the value and justice of the system, whether as regards the interests of the public or the inventors.”

Lord Granville, then Vice-President of the Board of Trade, the Chairman of the Committee on the Patent Bills, told the House of Lords, on July 1, 1851—

“The last witness was the Master of the Rolls, who, notwithstanding the experience he had had as one of the law officers of the Crown in administering the Patent-Laws, and although he took charge of the first Bill which the Government proposed on the subject, was decidedly of opinion that Patent-Laws were bad in principle, and were of no advantage either to the public or inventors.... All the evidence that had been brought before the Committee, both of the gentlemen who were opposed to the system of Patents and those who were most strongly in favour of it, had only tended to confirm his previous opinion that the whole system is unadvisable for the public, disadvantageous to inventors, and wrong in principle. The result of the experience acquired by the present Vice-Chancellor and Lord Chief Justice of the Queen’s Bench had raised great doubts in their minds as to whether a law of Patents was advantageous. The Chief Justice of the Common Pleas likewise had written him a letter, which he authorised him to make what public use of he pleased, declaring his concurrence in his opinion that a law of Patents was neither advantageous to the public nor useful to inventors.... The only persons, he believed, who derived any advantage from the Patent-Laws were members of the legal profession. Except perhaps warranty of horses, there was no subject which offered so many opportunities for sharp practice as the law of Patents. As regards scientific men, too, the practice of summoning them as witnesses on trials respecting Patents had an injurious, if not a demoralising, effect.... They sometimes allowed themselves to be betrayed into giving a more favourable opinion of the merits of an invention than was strictly accurate.”

Lord Harrowby judiciously said, in reference to the proposition then for the first time made to exempt the Colonies from the incidence of British Patents—

“The colonial refiner would be enabled to avail himself of every new invention in the manufacture of sugar, to the prejudice of the home refiner, who would have to pay for the Patent-right.”

Lord Campbell—

“Having been some years a law officer of the Crown, had some experience as regarded the question at issue, and he begged to say that he entirely approved of the view of his noble friend, Earl Granville.”

Sir James Graham, on Aug. 5 of the same year, observed—

“There was also evidently great division of opinion among Her Majesty’s Ministers upon this subject. The Vice-President of the Board of Trade, in the House of Lords, when introducing this Bill, expressed a decided opinion adverse to the principle of Patents altogether. The noble Secretary for the Colonies (Earl Grey) agreed with the Vice-President of the Board of Trade, and now it was found that the advisers of the Crown had put an end altogether to Patents in the colonies. Was it right, then, to continue a system in England which had been condemned in principle by the advisers of the Crown? And were they to legislate upon a question which the divisions in Her Majesty’s Council rendered still more doubtful?”

Mr. Cardwell, sensibly and patriotically,

“Would remind the House of the case of the sugar-refiners of Liverpool, who complained of this part of the Bill.”

I need not quote Mr. Ricardo, whose lamented death prevented him from urging the present subject as he intended. Allow only the following observations of Mr. Roche, who on the same occasion—

“Entirely agreed that the Patent-Laws should be abolished altogether. They might depend on it that nine-tenths of the Patent inventions, under any law that could be passed, would be nothing less than so many stumbling-blocks in the way of improvement.”

Here is an extract from the proceedings of the British Association at Glasgow:—

“Mr. Archibald Smith was convinced that a majority of scientific men and the public were in favour of a repeal of the Patent-Law, and he believed its days were numbered. He held it was the interest of the public, and not the patentees, that should be consulted in the matter. This was a growing opinion amongst lawyers and young men of his acquaintance.”

I revert to the injurious influence of Patents in incapacitating manufacturers to compete with their foreign rivals, and am able to submit Continental testimony that such is the inevitable effect. The following lengthy quotation will suffice from M. Legrand, Auditor of the Council of State of France:—

“There is in this institution not only an obstacle to the development of home trade, but also a shackle on foreign commerce.

“The doors which we open by our Treaties of Commerce may by means of Patents be closed.

“Let an invention be freely worked in Belgium; if in France it be patented, Belgian produce cannot enter there. Let the contrary be the case; we cannot export to Belgium the production which is free with us, but patented at Brussels.

“Let us suppose, for example, that a new colour is patented alone in France, and that the patentee only permits the manufacture of the colour on payment of a high royalty: this colour will become dear, to the profit of the patentee alone, and the detriment of all; its exportation, or the exportation of articles dyed with this colour, into a country where the manufacture is free, will become impossible, because in that country they will begin to fabricate it, and its price will be diminished to the extent of the royalty exacted for it by the patentee.

“The French producer will necessarily be placed in such a situation that he will be unable to sustain any foreign competition.

“It is of consequence, so far as it depends on legislators, to place those countries on the same footing who unite in the peaceful, beneficent struggle of competition.

“But with the sound notions which prevail amongst persons of intelligence, it is evident that the uniform solution to which every one would adhere cannot be one which would recognise Patents.

“The making all discoveries free is the system which alone would have the chance of being adopted by all nations.

“It would certainly put an end to more injustice than it would originate.”

I had the pleasure of being present at a numerously-attended meeting of the Economists of Germany held at Dresden in 1863, which almost unanimously adopted a resolution against all Patents; quite in harmony, I may say, with formal resolutions of commercial and industrial associations in that country and France.

The House must long ago have been prepared for the following conclusions, which close the Royal Commission’s Report on the Law relating to Letters Patent for Inventions:—

“That in all Patents hereafter to be granted a proviso shall be inserted to the effect that the Crown shall have the power to use any invention therein patented without previous licence or consent of the patentee, subject to payment of a sum to be fixed by the Treasury.

“While, in the judgment of the Commissioners, the changes above suggested will do something to mitigate the inconveniences now generally complained of by the public as incident to the working of the Patent-Law, it is their opinion that these inconveniences cannot be 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.”

This is signed by Lord Stanley, Lord Overstone, Sir W. Erle, Lord Hatherley, Lord Cairns, H. Waddington, W. R. Grove, W. E. Forster, Wm. Fairbairn.

The public understood this to mean that the Commission were by no means satisfied that there should be any longer any Patent-Law at all. The Journal of Jurisprudence gives it this interpretation.

But I can adduce a higher and more authoritative exposition with regard to the views of at least the noble Lord the Chairman of the Commission. When the question was put as to legislation in conformity with the Report, Lord Stanley told this House on June 10, 1865:—

“The House ought first to have an opportunity fairly and deliberately of deciding upon that larger question which had not been submitted to the Patent-Law Commission—viz., whether it was expedient that Patents for invention should continue to be a part of the law.”

We all know there is in general society, and even among politicians and men in business, an acquiescence almost amounting to approval of Patents in the abstract. Its existence I attribute to unacquaintance with actualities. I acknowledge that when the more able advocates of the system state their reasons, these look conclusive enough, and would be so if there were but one side of the case. What we, their opponents, claim is that our objections be met. This, I apprehend, cannot be done without, at least, leaving so much inevitable evil confessed as must turn the scale. Some of these arguments that we hear are futile and far-fetched enough to deserve to be repeated. Admitting obstructiveness, a Chancery-lane writer pleads thus:—

“This very prohibition causes others to exert themselves to invent different means by which the same or a better result may be obtained than by the invention which they are prevented from using, except by payment, and the result is competition, in the highest degree beneficial to trade, and an unceasing advancement and striving.”

Really no better is the reasoning of an official witness, who told the Commission:—

“Three-fourths of the Patents, Inventions of Englishmen.—Three-fourths of the applications for Patents, or thereabouts, are for the inventions of Englishmen; the remaining one-fourth are for the inventions of foreigners, for the most part Frenchmen and Americans. The country in which inventions are of the highest value will draw inventions to it from all others, and so long as any one country protects inventions by Patent, so long must all countries protect. Were England to abolish protection of inventions, inventors would carry their inventions to other countries. Switzerland does not protect, and consequently the Swiss take their inventions to other countries.”

Why? What harm though the British inventor should go abroad to patent or even to work his invention? He must specify it in the country he goes to; and cannot, will not, our artisans at once avail themselves, and revel in the free use, of what he there records? Call our nation’s not rewarding him a piece of doubtful policy, or want of generosity; but banish the notion that our trade will suffer. It will gain.

But there are defenders of very different calibre: Mr. MacCulloch,[3] Sir David Brewster, Mr. John Stuart Mill. It is meet I should inform the House what are their arguments. I find them succinctly stated and well put in Mr. Mill’s “Political Economy.” I will read the whole of that gentleman’s observations, interlacing, for brevity’s sake, very short and unargumentative dissents, if not replies:—

“The condemnation of monopolies ought not to extend to Patents, by which the originator—”

Does Mr. Mill know that many an invention is patented by some person who is not the originator, but only the first promulgator in Britain; still more often, who is not the only originator?

“of an improved process—”

I have already shown that the law, rightly read, can hardly be said to sanction the patenting of a “process.”

“is allowed to enjoy, for a limited period, the exclusive privilege of using his own improvement.”

Which means, the privilege of debarring all other people—some of whom may, after him, or at the same time as he, or even before him, have invented it—from doing what he is, and they also should be, allowed to do.

“This is not making the commodity dear for his benefit, but merely postponing—”

For his benefit, and still more frequently and surely for the benefit of a multitude of other individuals, who have less claim, or no claim at all.

“a part of the increased cheapness, which the public owe to the inventor—”

But not to him only, for he invents often along with others, and always in consequence of knowledge which he derives from the common store, and which he ought, as its participant, to let others share, if doing so does himself no harm.

“in order to compensate and reward him for the service.”

The real service, if it be “service,” is the communicating his knowledge.

“That he ought to be both compensated and rewarded for it, will not be denied;”

But it does not follow, surely, even in Mr. Mill’s logic, that he should be invested with monopoly powers, which “raise prices” and “hurt trade,” and cause “general inconvenience.”

“and also, that if all were at once allowed to avail themselves of his ingenuity, without having shared the labours or the expenses which he had to incur in bringing his idea into a practical shape—”

But which, very likely, were trifling, and if heavy, were incurred for his own sake, and may have produced benefits to himself that sufficiently compensated all.

“either such expenses and labours would be undergone by nobody—”

Which is a wild assumption.

“except very opulent and very public-spirited persons.”

The former are numerous; the latter ought to be; and the service is one the nation may well expect of them. Why should not there be innumerable Lord Rosses, Sir Francis Crossleys, Sir David Baxters, and Sir William Browns, promoting beneficent commerce by their generosity; and why should not manufacturers systematically combine as an association to procure through science and experiment every possible improvement?

“Or the State must put a value on the service rendered by an inventor, and make him a pecuniary reward.”

And why should we not prefer this alternative?

“This has been done in some instances, and may be done without inconvenience in cases of very conspicuous public benefit.”

Well: that is a great deal; but why not in cases that are not conspicuous?

“But in general an exclusive privilege of temporary duration is preferable—”

Now, mark the only reasons adduced:—

“because it leaves nothing to any one’s discretion—”

That is, I suppose, Mr. Mill, to avoid trusting anybody—the danger from doing which is imaginary, or at least avoidable—would let the nation remain subject to proved frightful inconvenience and loss.

“and the greater the usefulness, the greater the reward—”

Which, Mr. Mill rightly thinks, is what ought to be, but it is not and cannot be what happens under Patents; for, on the contrary, rewards depend mainly on the extent of use and the facility of levying royalties.

“and because it is paid by the very persons to whom the service is rendered, the consumers of the commodity.”

Here Mr. Mill appears to regard, and it is right he should, manufacturers as mere intermediates. Well: can they shift the burden which they, in the first instance exclusively bear, from their own shoulders to those of the consumer? Perhaps they could have done so before the inauguration of Free Trade; but since that time, the thing is impossible, and so will it ever be until the day arrive when either Patents shall apply to all countries, and in all countries exactly the same royalties shall be charged for their use, or else they are abolished.

“So decisive, indeed, are these considerations, that if the system of Patents were abandoned for that of rewards by the State, the best shape which these could assume would be that of a small temporary tax imposed for the inventor’s benefit—”

Would he in general get it? And, let me ask, how collected—how distributed?

“on all persons making use of the invention.”

A thing impossible, however, even for conspicuous inventions; and to which there is the further fatal objection that there must be none but such recognised, which might be unfairness, as it certainly would be partiality. If, as indicated, a tax on all users and consumers, will not grants from the Exchequer be in the main fair enough as to incidence?

“To this, however, or to any other system which would vest in the State—”

Why the State? Why not let inventors decide?

“the power of deciding whether an inventor should derive any pecuniary advantage for the public benefit which he confers, the objections are evidently [!] stronger and more fundamental than the strongest which can possibly be urged against Patents. It is generally admitted that the present Patent-Laws need much improvement.”

It is not admitted that they can be made satisfactory, do what we will; and I contend that no extent of mere improvement can overcome the objectionableness of the restraints and burdens inseparable from the system.

“But in this case, as well as in the closely analogous one of Copyright, it would be a gross immorality in the law to set everybody free”—

Why, everybody is naturally free, and would continue free if the law did not step in and cruelly take their freedom away, doing which is the real immorality.

“to use a person’s work”—

A fallacy—to use, it may be, his thoughts, which, as soon as they are communicated, are no longer his only—and not at all to use his “work” in any proper sense.

“without his consent, and without giving him an equivalent.”

As if consent were needed to use one’s knowledge, and as if there could or should be any equivalent.

“I have seen with real alarm several recent attempts, in quarters carrying some authority, to impugn the principle of Patents altogether; attempts which, if practically successful, would enthrone free stealing under the prostituted name of free trade, and make the men of brains, still more than at present, the needy retainers and dependents of the men of money-bags.”

As to “free stealing,” hear what the greatest political economist of France thinks—

“C’est dans une mesure la même question que le free trade.”

As to the “money-bags,” Mr. Mill plainly is not aware that the dependence he deprecates is the invariable, almost the inevitable, consequence of a Patent system.

I am extremely sorry to differ on a question of political economy from Mr. Mill. But with all due respect I submit that he has not, when writing the passage which has now been given in extenso, realised what a Patent is in practice. It is the price at which the State buys a specification. The purchase is a compulsory one, with this peculiarity, that whereas the inventor may or may not offer to sell—for he is left at perfect liberty, as in a free country he ought to be, whether to patent and reveal (sell) or not—yet if he do offer, it is the State, the maker of the law, which, through the Sovereign, voluntarily puts itself under compulsion to accept the offer, and—with a defiant violation which the frequency of the deed in my view makes flagrant of sound principle—pays not out of public revenues or any funds over which it has legitimate control, but out of the means of private individuals, reached and extracted either in the form of exceptional profits on goods the monopolist makes, or by his levying of a tax called royalties on any of his fellow-subjects whom he may of grace, if they comply with his demands, associate with himself as sharers of the monopoly.

Such opponents’ impulses are excellent, but their plan is incompatible with actual pre-existent interests. They omit to take into full account the conditions of the everyday world which the statesman has to do with, and might not unprofitably call to mind a story or parable of juvenile days wherein certain wise men were represented as, after due counsel, placing a favourite bird within high and close hedges in order to gratify their tastes and enjoy melodious notes all the year round. The conditions of winged existence had not been taken into account; theory and sentiment could not be reduced to practice. Favouritism, constraint, and isolation, being contrary to nature, failed. The nightingale loved, needed, sought, and found freedom. To recall another book of youthful days. Think of Robinson Crusoe, and the many new inventions his peculiar position required and elicited. Let me suppose the neighbouring islanders saw for the first time in his hands a cocoa-nut turned into a cup, in his hut potatoes roasting in the fire, in his garden guano used as manure. What would they have thought of Christianity and civilization, if he, anticipating the pretensions of modern inventors, had alleged, on the ground of first use, exclusive property in these manufactures, processes, and applications, and had debarred the imitation for fourteen years? The unsophisticated savages would have said, “We understand and allow your claims to possess what you yourself make, but we do not understand, and we dare not allow, your claim to possess what we make ourselves. You are welcome to learn what we shall learn, and to do whatever you see us do. We cannot sell for money the odours that rise from the fruits that sustain our life; should we forbid to pick up and plant their seeds that we throw away? Should we grudge the runnings over from the brimming cup of knowledge which heaven puts into the hand, and the froth at the top which the wind blows away?” Heathens are pleased to even work at what is good for all according to opportunity. The fact is, the right of inventors is too shadowy to have any recognisable existence where there is not a submissive society to vend to or trample on, and a complaisant state to compel their submission.

If he were a member this night present with us, I would appeal to Mr. Mill as a philosopher. Seeing that the world is so framed that whereas acquisitions of material property or things cannot be possessed in common without the share or enjoyment of each person being lessened or lost, it is universally possible that any number of persons, however many, can possess and use, without any diminution of individual enjoyment, knowledge or ideas in common, do not wisdom and humanity justly interpret this as an indication that to interfere is to oppose the order of nature?

Let me appeal to him as a moralist. Seeing that to so interfere with the communication and enjoyment of knowledge or ideas by limiting the power and right to apply inventions to use is to withhold that whereby one man, without loss to himself, may benefit his fellows, do not ethics favour the philanthropic course which accords with the course that Nature indicates?

I appeal to Mr. Mill as a political economist. Seeing that the order of nature and the promptings of philanthropy are favourable to the communication of inventions and their free use, is it the part of a State to provide for the gratification of the selfish principle in man by legislation framed to endorse, and facilitate, and almost to necessitate it?

I appeal to Mr. Mill as a statesman, and ask, Is it consistent with enlightened policy to place manufacturers in such a position, that they are constantly tempted to conceal improvements they are using, from fear to discover that they are infringing? Does he know so little of mankind, that he expects them, the poorest as well as the richest, to employ (and this would be requisite) suitable agents to search whether any improvement they mean to adopt is already the subject of a Patent that renders its adoption illegal, and also to institute inquiries as to who, and where, in the wide world, is the holder of the Patent or Patents, whom in that case he must first negotiate with and sue for a licence? Does Mr. Mill think a manufacturer’s time is so free from absorbing occupations that he can attend to the daily transactions of the Patent-office, so as to inquire whether such and such a mysterious application is an unintended, it may be, but in result an effectual, ousting him from use of a process that he is about to introduce or has already in operation? Yet these are the superhuman efforts and gifts which compliance with, and subjection to, any Patent system presupposes and requires.

Is it nothing in the eyes of this legislator, whose absence from this House is so generally regretted, that by means of the Patent-Laws there are thrown loose on men in trade thousands of individuals whose interests run counter to those of society, men trusted with letters of marque to prey, not on foreign commerce, but on British? Is it a small matter, that, having surrendered the principle of discriminating duties leviable by the State for national purposes, we continue to expose those from whom this protection is withdrawn to an ever-increasing burden of taxes, in favour of individuals, levied without State control or any regard to equality? Does Mr. Mill conceive it is short of recklessness to continue to stimulate invention by rewards which often turn out ruinous to those whom they are meant to favour, and which bear not the smallest proportion to the cleverness, the beneficial results, the cost of elaborating, the merits or the wants of the inventor, and scarcely to the originality and legitimacy of the claim of whoever is the applicant? Is he aware that the advantage reaped by inventors, sometimes very large, is obtained at so frightful a cost that, as some persons believe, for every pound which actually reaches him the country loses to the extent of one hundred pounds? Surely we are asked to obtain our stimulus by a folly (only his was voluntary, and not habitual) like that of the fabulous sailor who, for the sake of a tumbler of rum, swallowed the bucketful of salt water amid which the dangerous stimulant had by accident fallen. I honour the candour of Mr. Mill, and I hope yet to have his concurrence in my views. He cannot have reflected on and realised actual facts. One illustration more, and this of another difficulty which I commend to his attention and that of any honourable gentlemen who have been carried away along with him, I give by narrating an incident in my late canvass.

A deputation of the trades of Scotland did the candidates the honour of submitting to us a very judicious list of questions. One of these concerned the Patent-Law. They asked, would I support a motion for reducing the cost of Patents? I answered I would, because I think the cost too high for the working man; but I added that I would rather see Patents swept away. One of the deputation properly animadverted on the hardship this might inflict, and he instanced the case of his brother, who had invented an improved apparatus for use on board ship. I rejoined that I accepted the case as sufficient to confirm the conviction that Patents are on the whole not good, but bad, for working men or any men. My reasoning was substantially this: In order to reap his reward, the inventor is required or expected to visit every ship or shipowner at the port, and endeavour to get the apparatus understood, believed in, and adopted; and not at Leith only—at every Scotch port, every English port, and every Irish port. But not to let British shipowners suffer by the inequality of paying, while rivals use without paying, and at the same time to promote his own interests, the inventor must take out Patents in France, Belgium, Holland, and all maritime countries and their colonies. After he obtains these many Patents he has to sell his apparatus at all the ports of those countries. The first thing obvious is, that to do a tithe of that work the inventor must relinquish his own business, which is the solid beef in the mouth of the dog in the fable, for the delusive shadow in the water. But never mind that in the meantime: after the business is relinquished, there remains the insuperable difficulty of conducting a business so much beyond the power of man as that I have sketched. He might of course attempt to overcome that by appointing agents to manufacture abroad or act abroad for him; but where is the capital to hazard on so great an enterprise? If he were as rich as a Rothschild, has he the gift of tongues to enable him to correspond in all languages? And if he had, how can all this work, requiring simultaneity, be done at once? The end, of course, must be, at the very best—the Patents, if, indeed, actually taken, are sold for a trifle, and the persons who secure them, which they only do if valuable, in their turn sell, for a trifle too; so that the lucky inventor gets but little out of the tens of thousands or hundreds of thousands of pounds which the public are made to bear the burden of. Ex uno disce omnes.

I am unwilling to leave this part of my theme without adverting to a point which deserves some attention—I mean the tendency the Patent system has to lower the tone of men of science. In a quotation from Lord Granville it is seen to be more than insinuated that the sacred claims of truth are in danger of being compromised by the evidence men of science are asked and tempted to give in courts of law. But the evil of Patents begins in the laboratory and the closet; for there is felt the impulse to conceal anything new and likely to be useful, in order to patent; so that a conflict is generated between, on the one hand, the theory of the academic chair which supposes in the very name “university” universalism, community of knowledge, and on the other, law-created personal interests, whose nature it is to stifle the man of science’s inherent desire to spread knowledge and exchange thoughts in order to benefit mankind.

But Mr. Mill presents an alternative. I, for one, have no objection to see it considered. I have long advocated State rewards; they cannot be condemned on principle; they are sanctioned by another philosopher. When I say that I had the honour long ago to receive the following from M. Chevalier, I am sure of this House’s attention.

Extract of a Letter from M. Michel Chevalier to Mr. Macfie.

“The Patent system, as constituted in all countries where it is established, is a monopoly that outrages liberty and industry. It has consequences that are disastrous, seeing there are cases where it may stop trade for exportation and even for home consumption, because it places manufacturers who work in a country where Patents are established at a great disadvantage in competing with others who live in States, such as Switzerland, where Patents are interdicted by law. Practice, experience, which is the supreme authority in the world, shows daily, in France particularly, that the system is a scourge to industry. What might be substituted is a system of recompenses, either national or European, as you have proposed, to be awarded when practical use has pronounced on the merit of each invention, and when the originality shall admit of being established. All the friends of industrial and social progress ought to unite their efforts to liberate industry from the shackles that have been bequeathed from the past. That of Patents is one of those which there will be most urgency to get rid of.”

The Continental Association for Promoting the Progress of Social Sciences favours such rewards. Allow me to quote from a Report of M. Tilliere, Avocât of Brussels, which was adopted by that body:—

“It is proper to introduce, in respect to industrial inventions, the principle of expropriation [or acquisition for behoof of the public], with a view to general benefit, in order to reconcile the interests of industry and the requirements of free trade (libre échange) with the interests of the inventor.

“It is desirable, for the satisfaction of the same interests, to establish between the different countries by means of stipulations with reference to Patents in International Treaties, uniformity of system, and, pursuant thereto, to provide a depôt where, without the necessity to patent in every particular country, specifications might be lodged that shall be recognised and published in all.”

The House will observe that in connexion with the principle of State rewards, or, what is nearly allied to it, of expropriation, the Association commended another principle, that of international arrangements as to inventions. On the occasion when the report I quote from was adopted, another eminent French economist, Professor Wolowski, spoke as follows:—

“The free competition which ought to exist between peoples requires that Patents should be everywhere ruled by uniform laws. Intellectual property must everywhere have limits within which there shall be exchange, in order that its products may everywhere circulate under the same conditions. International legislation with regard to Patents is an object to be earnestly pursued. It responds to the demands of free-trade, satisfies the needs of liberty of manufacture, and provides a compensation for a shortened term of Patent-right by extension of area.”

But I come nearer home, and am happy to be able to quote concurrence in the idea of national rewards on the part of one of our great staple manufacturers, the sugar refiners. The refiners of Scotland many years ago petitioned Parliament in the following terms:—

“That, in the opinion of the petitioners, it is highly desirable that your honourable House should devise some means whereby discoverers of valuable inventions (to whom alone Patents should be granted) might be rewarded by the State, and trade be relieved from the restrictive operation and expense of Patents altogether.”

Tending in favour of rewards rather than Patents is the following evidence, given before the Royal Commission by Sir William Armstrong:—

“How would you give these rewards in the absence of a Patent-Law?—I am not prepared to say that. If the country would expend in direct rewards a tithe of what is paid for Patent licences and expenses, there would be ample provision for the purpose. As a matter of opinion, I believe that if you let the whole thing alone, the position which a man attains, the introduction and the prestige, and the natural advantages which result from a successful invention and from the reputation which he gains as a clever and able man, will almost always bring with them a sufficient reward.”

A successful inventor writes me:—

“I should be very glad to see a good round sum set apart by Government for the purpose of being awarded to real inventors by competent and impartial authority. Then the poor inventor might have some chance.”

It is not out of place to inform the House that so far back as the earliest years of the Patent system a precedent can be adduced. In 1625, Sir F. Crane received a grant of £2,000 a-year for introducing a tapestry manufacture. There are several other precedents for similar grants of public money.

Of course, to reward is not to purchase. We do not buy any man’s invention or secret. But if he thinks proper, as a good subject, to reveal that secret, we mean he shall have a substantial mark of favour. Something like this was, no doubt, the original intention of Patents; only the favour took the form of monopoly for introducing and working a manufacture, whereas we prefer to pay, as soon as the value and benefits of the invention made can be guessed at, such a sum of money as will be neither, on the one hand, from its magnitude made oppressive to the people, nor, on the other, from insignificance or paltry conditions unworthy of a noble mind, whatever the rank, to accept. What is given will be proportioned to merit or service, and will be, in the fullest sense, a honorarium, a complimentary gift, a mark of national approbation and gratitude. We all know, though few of us think of it as a striking proof how Patents have declined in public esteem, that among us to be a patentee is by no means usually reckoned an honourable distinction. It is the same in France.

“The title of patentee is falling into greater disrepute every day from the abuse which is made of it.”

This prejudice we must remove, and we can do it. I believe in the possibility and advisableness of presenting, as a substitute for Patents, a system of rewards which will reconcile the honour and interests of men of science and those of practical men, the interests of the master and those of his workmen, the interests of the many and those of the few. Such a system, while entirely emancipating commerce and industry, must, as its condition, deal out its rewards more equitably than the Patent system does, and with more regard to the just claims of inventors. It must distribute these without the tedious delays now suffered from. Its rewards must, in contradistinction to present experience be sure, easily attainable, and suitable for poor as well as rich. I respectfully submit the following scheme as one that at least may form a basis for some system that will obtain general acceptance.

New System of Rewarding Inventors and Promoting the Publication of Inventions.

1. The Patent-office to be turned into an office for recording inventions.

2. (Forms for specifications to be furnished gratuitously.)

All specifications to contain a certificate that the inventions promise to be useful, and are believed to be new, from three persons familiar with the trade chiefly concerned; one of whom, if the inventor is an employé, to be his employer.

3. These specifications to be registered.

4. Any time after an invention has been tried and proved practically useful, a fact to be duly certified, the inventor to be allowed to claim that the invention shall be reported on.

5. A Chief Commissioner for Inventions shall appoint one or more examiners for this purpose, whose duty it shall be (after, if needful, first visiting the scene of operations, and conferring with practical manufacturers) to recommend, if they think it worthy, classification for a reward, prize, or certificate of merit.

6. Once a year the head of the Invention-office, with the help of an Adjudicatory Committee, who shall form an Invention Commission, shall classify the several inventions that have been in the previous twelve months certified as having been for the first time brought into beneficial use.

7. In his classification the first rank shall entitle to a

reward of £10,000.

2nd 5,000.

3rd 1,000.

4th 500.

5th 100.

6th 50.

7th, Gold Medal, or value in money.

8th, Silver Medal ”

9th, Bronze Medal ”

10th, Certificate of Merit.

8. Parliament shall annually place at the disposal of the Invention Commission £200,000, from which shall be defrayed the expenses of the staff, and fees to “reporters,” as well as of the several publications showing the progress of Invention that shall (as now, but on an improved system) be issued; the balance to be distributed in rewards and prizes, with an understanding, however, that the amount must be reduced if the total awards of the Commission shall exceed the money at its disposal.

9. In appointing Commissioners Government shall consult the various trading interests of the nation in order to select the most acceptable persons. Inventors collectively might have a veto or the initiative.

10. The prizes may be divided between the originator of the idea of any invention and the successful introducer into practical use.

11. Where there are rival claimants, the expense of deciding priority in respect of time and merit to be borne by themselves.

12. The Commission to be at liberty to correspond with foreign nations, and act in concert with any that shall establish instead of Patents a system of rewards.

13. In cases in which pre-eminent merit, especially if there has been a course of costly experiments antecedent, appears to entitle to a reward greater than the largest in the schedule, Government may propose to Parliament special augmentations. I do not presume to recommend Royal decorations and titles, though such honours would be much valued.

A writer on Patents has judiciously said—

“It would seem very desirable that a system of registration for all improvements or ideas which an inventor may think of minor importance should be instituted, whereby any one could, at a moderate cost to defray expenses, deposit at the Patent-office, a description of any new idea, improvement, or invention.”

My scheme is calculated to answer this good end.

Here I may fitly call attention to an interesting and instructive analysis which Mr. Woodcroft submitted to the Commission. He showed—

Results of the Examination of the first hundred inventions, for which applications for Patents were made in each of the years 1855, 1858, and 1862 (abridged).

1855.

“Of the first hundred inventions for which applications for Patents were made in the year 1855, none are apparently of considerable value.

“Four of the hundred inventions appear to be of some, but not of great value, and Patents were granted for all of them.

“The remaining ninety-six of the hundred inventions seem to be of little or no value; and Patents were granted for sixty-six of them.”

1858.

“Of the first hundred inventions for which applications for Patents were made in the year 1858, none are apparently of considerable value.

“Three of the hundred inventions appear to be of some, but not of much value.

“The remaining ninety-seven of the hundred inventions seem to be of little or no value; and Patents were granted for sixty-two of them.”

1862.

“Of the first hundred inventions for which applications for Patents were made in the year 1862, one is apparently of considerable value.

“Of the same hundred inventions one appeared to be of some, but not of great value.

“The remaining ninety-eight of the hundred inventions seem to be of little or no value. Patents were granted for fifty-nine of them.”

I conceive, on the basis of this evidence, that the estimate I am now about to give represents, relatively, but I will not venture to say absolutely, a fair view of probable claims. It also affords some guide for anticipating what, coming from the Exchequer, would be a reasonable total vote for rewards. Such a sum, or even a larger, Parliament should willingly grant. It can be proved to be true national economy. The nation, as individuals, is paying vastly more now. For that burden Parliament, by not removing Patents, is alone responsible.

1 at £10,000

3 at 5,000 15,000

12 at 1,000 12,000

84 at 500 42,000

250 at 100 25,000

400 at 50 20,000

Medals and Certificates of Honour and Merit 1,000

750 £125,000

I am aware that inventors have hitherto drawn such large sums in some cases (in many or most cases claiming more than they got), that they may at first hardly be pleased with my proposal. But they should remember that the sums set down are those derivable from one country alone—one of the between forty or fifty countries which give Patents now. The revenues from these other countries, therefore, are to be added. They will also consider that it is optional whether or not they apply for rewards. Let them work in secret, if they will and can. But if they resolutely contend for Patents, let them know the time for abolishing these is at hand; and abolition may come, if they resist it, without even this substitute.

I have endeavoured to show what I believe to be true—that Parliament, when it, by the Act 21, Jas., 3, tolerated monopolies for inventions, did not sanction any system at all like that into which Patents have developed, or degenerated; that, in defiance of the Act, Patents are granted so as to create the evils which Parliament expressly sought to shield the nation from; that recent legislation has aggravated the great evils that pre-existed; that a Commission has satisfied itself that no radical or sufficient remedy can be applied; that the arguments of the defenders of Patent monopolies are untenable; that the most eminent statesmen, lawyers, engineers, manufacturers, and philosophers plead for abolition; that the State is at liberty, and has the power, to devise, if it wills, a better method of dealing with inventions, but that such a method must be one that leaves manufacturers free, and able to compete with continental rivals by at once adopting, without any burden of royalties, every most recent improvement.

To conclude: this great and vital question cannot longer be deferred. It must be taken up, and that early, by what is expected to be a working Parliament—a Parliament, too, which for the first time can claim to represent labour and operative industry. Parliament has legislated in order to the preservation of salmon, and required the removal of obstacles on the coasts and in the rivers. Here are far worse obstacles, affecting not a luxury, but all our necessaries of existence, and every means of earning a livelihood.

Again: are we not asked to remove light-dues at the sea and tolls on the land? But what are these unimportant, sparse, and withal equitable taxes, compared with the close-recurring stoppage and the indefinite and heavy demands for questionable “service” which Patents constitute? Yet, again: By arrangement with France we recently abolished the time-sanctioned petty exemptions of free-men; but here we are continuing to levy more burdensome private taxes, with exemptions in favour of foreigners! It is they, indeed, whom the provisions of the Patent-Law strangely serve. Foreign countries are not so liberal to British subjects as we are to theirs;—why should they? The number of Patents we grant in a year to foreigners has increased within a short period tenfold—to about 880, or about twelve times the whole number that Prussia grants to her own subjects and all the world besides. Well may Sir William Armstrong remark in his evidence:—

“Unless you wish to benefit the foreigner, unless that be the sole object, as a matter of policy, I do not see what the motive to apply the Patent system is.”

The same witness said also:—

“Is it the fact that Patents are taken out in this country for processes which are in operation abroad, but which have not been previously introduced into this country?—Certainly. A process in actual operation abroad, which has not been published in this country, can be made the subject of a Patent.

“Is it practically the case that processes which are carried on abroad are brought into this country by parties who patent them here?—Yes.

“A great number every week?—Yes, constantly.”

Any one who has followed me in the statements I have presented will see that, while we have been retrograding and making our system of monopoly wider and worse, the Continent, to which a Patent system was first introduced just three-quarters of a century ago, is ahead of us in respect of the prudence with which exclusive privileges are granted and administered. There, as a rule tolerably general, Patents of importation are treated less liberally than those granted to inventors. The early and almost continuous working of the Patent within the kingdom is required; it lapses when expiry abroad exposes to foreign competition; expropriation is provided for; there is more scrutiny; medical appliances and food are excluded, &c.

But this is merely one, and a comparatively unimportant, fault of the system. There are many faults, as we have seen, much more serious, and which the Commission deem irremovable. I must, therefore, protest against injury done by the Patent system to our manufacturers and artisans, and through them to the nation.

These interests, the interests of us all, cannot with impunity be subjected longer to the hardships that I have endeavoured to expose. Times are changed. British and Irish manufacturing pre-eminence is passing away, not indeed by its actual retrogression, but by a simultaneous and relatively more rapid progression of rivals on the Continent, who, in not a few cases, are competing successfully, even in our home markets, in those articles of commerce and manufacture in which but lately we, perhaps conceitedly, supposed we had outstripped, without a chance of being overtaken, all conceivable rivals. The motion, of which notice has been given, is:—

“That, in the opinion of this House, the time has arrived when the interests of trade and commerce, and the progress of the arts and sciences, in this country would be promoted by the abolition of Patents for inventions.”

Unless, indeed, Government and the House prefer in the first instance fresh inquiries through a Committee or Royal Commission, in behalf of which course it is fair to allege the circumstance that artisans and operatives were not represented among the witnesses in former investigations, I submit that this motion ought to be at once adopted. Such action on our part will commend, and, in a sense, inaugurate, a principle which the nations of the world, who copied our present system, will not be slow to appreciate and embrace. Restoration of that effete system to its earlier moderate dimensions—rectification, however thorough, of the wrongs it involves towards inventors, will not suffice, and need not be attempted. The time has come, not for palliatives nor remedies, but for removal out of the way.