NOTES OF SPEECH OF MR. MACFIE, M.P.

Mr. Macfie, after apologies founded partly on the circumstance that, so far as he knew, this was the first occasion when the policy of granting Patents for Inventions had been discussed in Parliament, proceeded to say, that manufacturers could not be indifferent to improvements. It is indeed significant that they do dislike Patents, while they appreciate and honour inventors, even those inventors who claim from the State exclusive privileges, some of whom have the glory of being among the greatest benefactors of mankind.

In considering the important subject which he now brought forward, he submitted that it is not the interest of inventors, nor even the interest of manufacturers, of agriculturists, of miners, nor of shipping, that this House should consult, but those of the nation. The question to be considered is, do Patents, on the whole, promote our national welfare?

Another principle on which he proceeded is, that there can be no property in ideas. The Creator has so constituted nature that ideas can be held in common, which is not the case with things material. Letters Patent for inventions have been instituted in order to confirm to certain persons, and deprive every other person of, the common, natural right to act on the ideas or knowledge there patented. These exclusive privileges, while they last, are, of course, property.

Further: It is a recognised principle, that the State is not bound to grant Patents. These are grants dictated by royal favour. In the words of Stephens’ Commentaries: “The grant of a Patent-right is not ex debito justitiæ, but an act of royal favour.” Every Patent is a voluntary transference by the State to an individual of power for fourteen years to tax at pleasure other persons for making or doing the thing patented; aye, if he likes, to prohibit or withhold the thing altogether.

Patent-right must not be confounded with Copyright. The latter stands on perfectly different grounds, and can be advocated and upheld, as he (Mr. Macfie) himself does, in perfect consistency with disfavour for the former. There can be no rival claimant to the authorship of any particular book; many persons may honestly and indisputably claim originality in an invention. The true similarity between these two subjects of privilege is not between the book and the invention or machine, but the book and the specification of the invention. When you buy a Murray’s handbook, a book on medicine, or a commercial guide, you are at liberty to act on information you find in it, and to travel, trade, or prescribe, according to the directions you find there. But mark the contrast in what Patent-Law creates. When you buy a specification, you know it tells only of certain things that you are not at liberty to do.

Lastly: I acknowledge that it is legitimate to legislate with a view to promote or protect trade. The interference, however, which is now wanted is not a return to the old protective system of discriminative duties, but the clearing away of evil laws, and especially deliverance from the bondage and wrongs involved in Patent monopolies.

For the origin of our definite Patent legislation we go back to the famous statute of James I. of England. At that time the people of this kingdom were in a state somewhat resembling our present state. They were desirous to extend trade and introduce new arts and manufactures. Parliament was powerful and hated monopolies, under which the people had been writhing. These it reprobated in the spirit of the jurists of antiquity. While by that statute it swept away all other monopolies, it permitted, or tolerated, that the Crown should grant the exceptional privilege for “the sole working or making of any manner of new manufactures within this realm, to the true and first inventor and inventors of such manufactures, which others at the time of making such Letters Patent and grants shall not use, so as also they be not contrary to the law nor mischievous to the State, by raising prices of commodities at home or hurt of trade or generally inconvenient.”

The House will keep steadily in view the wholly different condition of commerce and the arts at that time. When these monopolies were spared, trade was very far from being developed. The field of commerce was still in a great measure clear and unoccupied. The kingdom was, commercially as well as geographically, detached from the continent. The operations of trade and the arts were slow, were conducted on a small scale and on rude systems, and yielded large profits. Exports to foreign parts were inconsiderable. There were no periodicals to give information as to anything new in the arts and sciences. Under such circumstances, if new kinds of business were to be established, it was not unreasonably thought safe, or even needful, to allure by promise of exclusive privileges. The very reverse are our present circumstances and condition.

May I be allowed now to call particular attention to the Act. Anybody may see that it authorised exclusive privileges as something exceptional, something almost loathed, as “monopolies.” The House may remember how, in conformity with this view, Patents used to be construed by the judicial bench with a leaning against them. It was clearly not contemplated that they were, as they are now, to be had at a comparatively easy price, by a very simple course of procedure organised to hand, at an office established and with machinery ready to be set in motion for the purpose. A rigid testing examination, or severe, perhaps somewhat adverse, scrutiny was implied. They were granted for England only, then containing a small population, and requiring not very much for its supply of any new article. Moreover, the coveted privilege was a concession of no more than leave or right to “work” or “make” (not vend), and that within the kingdom, which, although it is the only thing the Act allows Patents to be granted for, is not required now-a-days. The right was conferrible only on the patentee himself; whereas now-a-days, and perhaps from the first, the usage is altogether different; for the patentee is now allowed to transfer his right, by licence, to others: that is, to vend his “invention,” taking the noun, not in its sense of a thing made, but of a method, or idea, or right to make or do a thing. Without this licensing, it is of consequence to remember, the monopoly would be too grossly and glaringly bad to be defensible or maintainable. There is another contrast: by the words of the statute nobody could be patentee but only the true and first inventor. Besides, the subject of a Patent clearly was to be something palpable and visible—something that admitted not of doubt as to what it was or as to its being novel—something respecting which there could be no fear whatever that it would interfere with any already existing trade. Above all, a process or operation, especially in a trade that already existed, does not appear to be contemplated by the statute. How entirely and sadly different is the present practice in this respect. Let me first quote from Brande’s Dictionary the opening definition that shows how naturally, and as it seems, unconsciously, writers speak of “processes,” as the great or only subject-matter:—

“The word Patent is commonly used to denote a privilege accorded to an inventor for the sole use of some process by which an object in demand may be supplied to the public; or some product already familiar to the public may be made more easily and efficiently.”

So the commencement of a Paper on Patents, in the last volume of the Proceedings of the Association for the Promotion of Social Science—in the following words, “The point asserted in the following paper is, that in a grant of Letters Patent, the subject of the grant is a ‘process,’ and not ‘product’”—shows as decisively the complete change that has taken place, and, let us not forget it, without consent of Parliament, who indeed have never been consulted. The alteration of the practice, which is nothing less than a new law—a law diametrically opposed to the spirit of the statute—is the work of the courts of judicature. Better principles might have been expected to prevail, for how just is the following reflection, taken from the most important “Treatise on the Law of Patents:”—

“Every member of the community receives many benefits from the society in which he lives, and he is therefore bound, by every means in his power, to advance its interests. And it seems to be but reasonable that he should be expected to promote the public weal by putting the community in possession of any discovery he makes which may be for the public good.”

The observations I have been making are founded on the words of the statute. It is possible, and perhaps I may say probable, that outside of the statute there was an influence drawing in an opposite direction, which found expression in the Letters Patent. If these were scrutinised, it is not unlikely even the earliest would be found not to contain the strict conditions and limitations which are laid down in the Act. An incidental proof of this tendency I notice in one Patent which has met my eye, where, though the duration of the Patent in England was confined within the permitted period of fourteen years, the duration in Ireland, which was not subject to the limitation, was in same grant made so long as between thirty and forty years. I do not find, in the excellent Chronological Index issued by Mr. Woodcraft on behalf of the Patent-office, anything at all to indicate that desire to favour trade was the motive for granting Patents even after the statute was passed. On the contrary, a money consideration seems to have been customary. The Crown stipulated for yearly payments of various amount, some of these being fixed sums, others a tenth, or three-tenths, or a quarter, or a half, of the clear benefit. In one case 4d. per bushel of salt was claimed. In another case 6d. per 100lbs. of bones was stipulated for. In another I find 5s. per ton of metal stipulated. All this is suggestive, but not less the condition, introduced occasionally, that the articles manufactured should be sold at moderate rates. The moderate rates appear to have been sometimes defined, e.g., 100 seals of a new kind were to be sold for 1d. Similar and more stringent care was taken when Copyright first became the subject of systematic legislation, to prevent the monopoly from making books dear. All such precautions have, in our modern unwisdom, disappeared. Grotius requires under monopoly a restriction on price.

One thing, I presume, may be regarded as certain, that neither in the Act nor in the Letters is there any vestige of the modern political heresy that an invention may be legislated for as in any sense property. Even the high-sounding phrase, “the rights of inventors,” appears a recent introduction.

It is not forty years since the greatest number of persons allowed to participate in a Patent was five. This limitation was a lingering remain of the traditional character of Patents, as monopolies which ought not to be provided with facilities for extension but rather be confined within the narrowest bounds.

It is proper I should now prove from that and other authorities in law, what is the correct interpretation of the word “manufactures” in the statute, on whose meaning so much depends. My quotations will exhibit progressive development—a thing justly viewed with suspicion, whether its sphere be the ecclesiastical or the legal. What I now bring under notice, taken in connexion with the startling perversion of the words “first and true inventor” and the setting at nought the letter and spirit of the words “to make within this realm,” matches the whimsical and ruinous sophistications we smile at in the “Tale of a Tub.”

My first appeal is to Sir E. Coke’s “Institutes:”—

“If the substance was in being before, and a new addition made thereunto, though that addition made the former more profitable, yet it is not a new manufacture in law.”

That by a manufacture was meant something so definite as to involve or imply an art in the sense of a trade, will be seen by another quotation which I make from Serjeant Hawkins, who says—“the King may grant the sole use of an art invented or first brought into the realm.” So also in “Bacon’s Abridgment.” The Court of King’s Bench held—

“A grant of the sole use of a new invented art is good.... This is tied up by the statute to the term of fourteen years; for after that time it is presumed to be a known trade.”

Mr. Hindmarch writes—

“It was long doubted whether a mode, method, or process of itself, and apart from its produce or results, could legally be made the subject of a Patent privilege.”

After citing cases, he adds—

“These cases show clearly that a process of manufacturing, separate and apart, may be made the subject of a Patent privilege.”

Mr. Coryton, in his volume on “The Law of Letters Patent,” expresses his mind thus plainly:—

“On the assumption that a Patent confers a monopoly, it follows directly that the subject-matter of the Patent must be a material thing, capable of sale,[2] and cannot be either an improvement, principle, method, process, or system. In other words, the subject-matter must be, as it was originally defined, a ‘new manufacture.’ A thousand evils have arisen from affixing other than the literal interpretation to the terms,” &c.

He quotes Justice Heath, who said—

“That which is the subject of a Patent ought to be vendible; otherwise it cannot be a new manufacture.”

So Tyndal—

“That it is a manufacture can admit of no doubt: it is a vendible article, produced by the art and hand of man.”

Mark from the words of Justice Buller, on the same occasion, the sentiment which was permitted to prevail and neutralise the statute:—

“Few men possess greater ingenuity, or have greater merit. If their (Boulton and Watt’s) Patent can be sustained in point of law, no man ought to envy them the profit and advantages arising from it. Even if it cannot be supported, no man ought to envy them the profit,” &c.

We come to C. J. Eyre:—

“According to the letter of the statute, the words ... fall very short ... but most certainly the exposition of the statute, so far as usage will expound it, has gone very much beyond the letter. ‘A deliberate surrender,’ comments Mr. Coryton, ‘of judicial power in favour of an accumulation of popular errors.’... Later judges, following in the same course, have striven rather to regulate the inconsistencies they found, than to address themselves to the cause and thus prevent the possibility of their recurrence. Writers on this subject have on this head followed in the course indicated by the Bench.”

A practical commentary, and a confirmation of Mr. Coryton’s views, are furnished by the fact that the number of Patents granted in the six reigns preceding that of Geo. III. was only 540 in 85 years, or less than 6½ a-year; whereas now a greater number is granted daily.

The actual administration of Patents is exhibited to us by a Return which the House has been good enough to order on my motion. That return shows how the rate of multiplication has increased, especially in Scotland and Ireland.

There have been granted for—

England. Scotland. Ireland. In England for the Colonies.

In 1650—None.

1700 2

1750 7

1800 96 13 2 6

1825 250 62 33 87

1850 523 227 531 191

1866 2,121 2,121 2,121 none

1867 2,292 2,292 2,292 none

There were in operation in the United Kingdom at the end of last year no fewer than 11,369.

The House is aware that the Patent-office makes a classification of Patents. The classification for 1866, the latest year that could be given in the Return, shows that there are nearly 300 classes, and there were Patents granted that year affecting those classes to the number of more than thirty each on the average. Taking the manufacture and refining of sugar as a test of other classes, the Return shows that in that trade there were granted more than thirty “affecting processes or operations” (without including hundreds of others of a more general character, to which manufacturers of all sorts are subjected, as, for instance, Patents for motive power, heating, &c.). Many noteworthy matters will meet the eye of any person who examines the Return, such as the following: For medical, curative, and similar “revelations,” there were granted about 80; for improvements tending to safety, nearly 350; affecting food, about 400; affecting steam-boilers, about 160; steam-engines, about 120.

But we have yet to consider the most material points in the Act. To these I now call attention. The conditions or limitations which the statute makes necessary are extremely significant. They are in these words—“Not contrary to the law nor mischievous to the State, by raising prices of commodities at home or hurt of trade or generally inconvenient.”

On these words Sir Edward Coke remarks—

“There must be urgens necessitas and evidens utilitas.”

What might be understood by being “generally inconvenient” in the statute, and how little disposition there was to render that disqualification a dead letter, we may gather from the following extract, which shows that saving of labour was in those early days, so far from being a recommendation, an inconvenience. Hear the same authority:—

“There was a new invention found out that bonnets and caps might be thickened in a fulling mill, by which means more might be done than by the labours of fourscore men who got their living by it. It was ordained by an Act, 7 Edward VI. c. 8, that bonnets and caps should be thickened and fulled by the strength of men, and not by a fulling mill, for it was holden inconvenient to turn so many labouring men to idleness.”

On which passage Mr. Farey (a gentleman eminent on Patent questions), who quotes it in an elaborate review of Patent-Law at the end of the Blue Book of 1829, the Report of the Committee on Patents for Inventions, makes the following remarks: “If this decision had been followed, it would have set aside every Patent for invention.” True, and the more’s the pity, perhaps! Let us hail the admission.

Sir Edward explains, and I read, the whole passage that I have cited, not as a lawyer might who wished to ascertain whether by oversight in drawing the Act or by the malleability and elasticity of language it could be interpreted even non-naturally to suit a purpose, but as honest, blunt Englishmen would understand it, as the English gentlemen who passed the Act must have understood it and meant the Crown to understand it. I submit, Mr. Speaker, that at this moment, and by this statute, and according to the common law which this statute declares, Patents are illegal which raise prices or hurt trade. The framing of the sentence leaves no doubt whatever that the antecedent to the words “they be not contrary to the law nor mischievous to the State, by raising prices of commodities at home or hurt of trade,” are these words, “Letters Patent and grants of privilege.” The preceding section contains the same words. That section was introduced in order to shorten the duration of Patents granted previously, and to nullify any that raised prices or hurt trade. It is plain that the intention of Parliament and of the Sovereign was to allow no monopoly to exist whose effect would be either to interfere with the extent or efficiency of industrial occupations, or to make prices, even of the new manufacture or commodity, dearer under the restriction than they would be without it. Even so late as the last century, the consistency of monopoly with cheapening of prices was believed in. As an example, I have been told that when the Paraphrases of the Church of Scotland were issued, the monopoly was given to a particular printer, with this purpose expressly stated.

What language can be plainer than that of the statute? As that statute is still the charter of our commercial freedom and the chart by which we may discover the track we must follow in order to our return to the open and safe, and as its sound limitations are still the law of the land, I am entitled at the outset to contend that they ought to be put in force. They have been utterly neglected, and the nation suffers much from the neglect. As to this, hear my witnesses. I produce them chiefly from the following Blue-books: That issued by the Committee of this House which sat in 1829, that issued by the Committee of the House of Lords which sat in 1851, and that issued by the Royal Commission in 1865. Here remark the strange failures of expectations that characterise the proceedings of Parliament in regard to Patent-Law. The Committee of 1829 recommended that they should be allowed to continue their investigations next Session, but they appear not to have been allowed. After the inquiries of 1851 there was, as a Petition which I have perused, presented to this House, shows, an understanding that the whole subject would be inquired into; but this never has been done down to this day. A Commission was indeed appointed in 1862, but they were confined to the question of the “working” of the laws. Indications were given, both before and after it, that the question of the policy of these laws should be examined into. The Liverpool Chamber of Commerce repeatedly urged this; e.g., in March, 1862, when that body petitioned the House thus: “They therefore pray that your honourable House will appoint a Select Committee to inquire into the policy and operation of those laws.” But the matter is still in abeyance, and, notwithstanding promises in a Royal Speech, legislative action is suspended.

To proceed: Mr. Lennard in this House, in April, 1829, declared his opinion—“It was not desirable to facilitate overmuch the obtaining of Patents by any reduction of expense.”

So Sir Robert Peel, in the interest of the manufacturers of Lancashire, Cheshire, and Yorkshire, deprecated cheapening of Patents and their consequent multiplication. At that period another member objected even to the publishing of specifications, because

“It enabled persons to carry the invention abroad, where, of course, the Patent article was made, the foreign market shut against the real invention, and the undue benefit granted foreigners of having the free use of the invention fourteen years before the patentee’s countrymen.”

The House will observe that the complaint here is not that we were hurt in British markets—for these the protective system of duties closed—but that we lost our hold of foreign markets.

Sir Mark Isambard Brunel, the eminent engineer, told the Committee of 1829:—

“I have had several Patents myself; I think that Patents are like lottery offices, where people run with great expectations, and enter anything almost.

“And if they were very cheap, there would be still more obstacles in the way of good ones. I think the expense of Patents should be pretty high in this country, or else, if it is low, you will have hundreds of Patents more yearly, and you would obstruct very much the valuable pursuits.”

That Patents are, indeed, a lottery in respect to the uncertainty whether the patentees draw a prize or a blank, I refer to the words of Mr. Curtis before the Royal Commission:—

“We have taken out a number of Patents, and frequently those to which we have attached the least importance have become the most valuable, and, on the contrary, those from which we have expected large things we have reaped comparatively no advantage.”

Mr. Coryton says in a note:—

“The opinions of the witnesses examined before the Committee of the House of Commons in 1829 were almost unanimous to the effect that Patents should not be too cheap, lest the country should be inundated with them.”

Among my private papers, I find in 1851 the Manchester Chamber of Commerce expressing the same fear in a letter to Mr. F. Hill, a portion of which I now present:—

“It is considered by this Board to be a primary axiom that every Patent granted is, during its exclusiveness, a limitation to a certain extent of the general rights of the people, and that in those Patents which have reference to manufacturing processes there may be a disturbance of the general industry of the people. This Board would, therefore, deprecate a too great facility in the obtaining of Patents. If the cost be made cheap, every trifling improvement in every process of manufacture would be secured by a Patent. In a few years no man would be able to make such improvement in his machinery, or processes, as his own experience may suggest, without infringing upon some other person’s Patent. Endless litigation would follow, and the spirit of invention in small matters would be rather checked than encouraged.”

The realisation of these fears, as well as the inconsistency of our practice with the conditions which our forefathers, more wise than the present generation, imposed, will be seen from the specimen extracts which I will now read, begging that it be remembered a very large reduction in the cost of Patents was made in 1852. The House will pardon me if it finds these extracts are not arranged with any rigid regard to order, but form a too rudis indigestaque moles.

The following prove that there is a natural tendency to excessive multiplication of Patents, and to the making of the same inventions, and of inventions directed to the same end, or moving on the same line, by a number of persons at or about one and the same time.

This very week you read in the papers a judgment given by the Lord Chancellor, which contains the declaration that a person in specifying an invention may be held as preventing “the loss for a year or more to the public of the fruits of the ingenuity of many minds which commonly are working together in regard to the same invention.”

The Journal of Jurisprudence says well:—

“The rights of the inventor are also liable to interference of another kind. A rival manufacturer invents independently the same machine, or one involving the same principle. He is then, by natural law, at liberty to publish his invention without regard to the rights of the first inventor, seeing that he did not acquire his knowledge of its powers from the latter, and experience proves that, in point of fact, the same processes are frequently discovered by different individuals independently of each other. In an age of mechanical invention, an inventor cannot deprive the world of a new process by keeping it a secret. He can at most only retard the progress of discovery by a few years.... We submit that the fundamental principle of any legislative contract between inventors and the public should be, that the right of using the invention should be open to all Her Majesty’s subjects. Exclusive privileges, conferred for the purpose of enabling patentees to divide their profits with a few favoured manufacturing establishments, are indefensible upon any recognised principles of economy. Patents are in fact, as they are in law considered to be, trading monopolies; and the interests of the public imperatively require that, as monopolies, they should be swept away.”

Mr. Webster, Q.C., a high authority, says:—

“I mean the discovery, for instance, of some chemical property, or the application of some property, of matter of recent discovery, or a certain effect, for instance, in dyeing; that becoming known as a chemical law, then persons rush to obtain Patents for different applications and different modifications of it.”

See by my next quotations how great is the obstruction the multiplication of Patents creates, or, in the words of the Act, the “general inconvenience” they occasion.

Mr. James Meadows Rendel, Civil Engineer, in 1851:—

“During the twenty-five years that I have been in practice, I have frequently felt the inconvenience of the present state of the Patent-Law, particularly with reference to the excessive number of Patents taken out for frivolous and unimportant inventions, which I think are much more embarrassing than the Patents that apply to really important inventions.

“I have found them interfere in a way that very much embarrasses an engineer in carrying out large works, without being of the slightest advantage to the inventors, excepting that in some cases a man who takes out a Patent finds a capitalist (however frivolous the invention) who will buy the Patent, as a sort of patent-monger, who holds it, not for any useful purpose, but as a means of making claims which embarrass persons who are not prepared to dispute questions of that sort. I think that in that way many Patents are granted which are but of little benefit to the real inventor, serving only to fill the coffers of parties who only keep them to inconvenience those who might have occasion to use the particular invention in some adjunct way which was never contemplated by the inventor.

“After you have designed something that is really useful in engineering works, you are told that some part of that design interferes with some Patent granted for an entirely different purpose, and which might in itself be frivolous, but important in the new combination; and one has such a horror of the Patent-Laws, that one evades it by designing something else, perhaps as good in itself, but giving one infinite trouble, without any advantage to the holder of the Patent. I have frequently found this to be the case.”

Mr. W. S. Hale, candle manufacturer, said in 1851, in answer to the question—

“At present they are obstructions to you?—Decidedly.

“You say that, practically, you have found the existence of Patents in themselves useless—a great obstruction to the introduction of inventions which would otherwise have been of value?—Certainly.

“The great objection which I conceive many parties have to introduce real improvements arises from useless Patents. I am in treaty now for one or two which in themselves are useless, yet they contain the germ of something, and it is worth my while, if I can get them for a small sum, to purchase them; but directly you make application for a Patent of that description, it becomes very valuable all at once; the party conceives you are desirous of possessing yourself of it, and that you will be inclined to give anything for the use of it.”

In like manner Sir William Armstrong answered this question, put in 1864—

“Is it within your knowledge that considerable inconvenience does exist in those branches of business with which you are most conversant from the multiplicity of Patents?—Most certainly, and great obstruction.”

So also Mr. James Spence, of Liverpool, a well-known correspondent of the Times during the American war, said—

“It is difficult for a manufacturer to move in any direction without treading on the toes of some sort of a patentee.”

Likewise Mr. Montague E. Smith, Q.C., M.P., said:—

“In several cases in which I have myself been counsel, very great inconvenience has arisen from the multiplicity of Patents which an inventor has had to wade through to see that he has not been anticipated.”

How truly did Sir W. Armstrong observe to the Commission—

“You cannot grant a monopoly without excluding other persons who are working upon the same subject.”

Again:—

“Here the State grants to an individual a monopoly, and therefore the public are at his mercy.”

Mr. J. S. Russell, who himself has taken out a good many Patents, speaks more specifically:—

“There are a great many Patents of that kind taken out for boilers of steam-engines, and boilers of steam-engines admit of a very enormous variety of shape and proportion without damaging their efficiency.... The consequence is, that I have not defended any of my own. I have never made of mine more than a mere registry of priority of invention. I have not made mine a source of money, but I have suffered in this way from Patents: I have gone on, in the course of my business, doing my ordinary work, and I have found other people taking out Patents for what I was doing without calling it an invention, and then prosecuting me under the Patent they had taken out for my own inventions, and it appears that there is nothing to prohibit them from doing that.”

This I can from experience endorse. He is then asked—

“If you were able to prove that you had been carrying on an invention, whatever it might be, at the time when the person claiming to hold a Patent for it took out his Patent, would not that relieve you from all difficulty in the matter?—It would only give me the pleasure of defending a law-suit.”

Mr. Curtis, engineer, Manchester, said:—

“Many parties in trade have made alterations without being aware of their being patented, and when they have used them for a length of time, they have found that the patentee has come upon them and made a claim for Patent-right.”

Mr. Platt, of Oldham, whom you are happy to see as a member, said:—

“I think that there is scarcely a week, certainly not a month, that passes but what we have a notice of some kind or other of things that we have never heard of in any way, and do not know of in the least, that we are infringing upon them, and the difficulty is to get at any knowledge. We may be now infringing, and may have been infringing for years, and a person may have been watching us all the time, and when he thinks that we have made a sufficient number he may come down upon us, and there is no record. A very large number of Patents are now taken out for what is termed a combination of known things, and known things for the same purpose, and the descriptions of those Patents are generally so bad that it is impossible to tell the parts that are actually patented; in matters of that kind it has become a very serious question as to conducting a large business.”

In 1851, Sir William Cubitt spoke of an inventor of filters:—

“After he began to supply his customers, he received notice from a house in Liverpool that he would be prosecuted; he received intimation of legal proceedings against him for interfering with his, the Liverpool man’s, Patent. I have some of those filters. The manufacturer of these things, who had no Patent, came to me to consult me upon the subject. I at once saw how the case stood, having regard to the specification of the Liverpool patentee, that he (the latter) had taken out a Patent for that which another man had before done, so exactly that the words of the specification and the drawings fitted the first man’s invention, which was without a Patent, therefore his Patent would have been null and void. I advised my friend to write to the patentee to inform him of the fact that he had taken up a case which he could not support, and that he himself was infringing upon the invention of the first man, who had no Patent; that brought the Liverpool man to me, I having been referred to as having one of these filters in use. I explained to him that I had had the patent filter of the other man for two or three years. Then what was to be done? I advised my friend, who was in fact one of the Ransomes, of Ipswich, to tell the Liverpool patentee if he did not come to some arrangement of a business-like nature, he himself would have to become the prosecutor, and to sue out the ‘scire facias’ to make him prove his Patent-right, which is an expensive legal proceeding, and very troublesome to a patentee. I believe they have since made some business arrangement; but that shows how Patents may be, and are frequently, taken out for things which have been previously invented.”

As to the bad effects of Patents, I quote again from Mr. Scott Russell:—

“The unlimited power given by a monopoly to an inventor has this practical effect at present, that when an invention has been made the subject of a Patent, everybody shrinks from it, everybody runs away from it, everybody avoids it as an unlimited evil, because the person who has the monopoly can subject you to a most expensive prosecution, and can charge you a most inconvenient sum for what you have done, and can punish you in every way for having touched his invention.”

Mr. Grove says it is natural that people should yield to the holder of the Patent, for, if

“He has a letter from a patentee saying, ‘You are infringing my Patent;’ I do not believe that the tradesman would go to the expense of litigation with the patentee, and for this reason, it is the patentee’s interest to give a very large sum of money to support his Patent. His Patent, although for a very trivial thing, may, taking the vast extent of sale, be a very lucrative affair, and therefore it is worth his while to lay out a large sum of money to support his Patent. It is not worth the while of the opponent, because he has only a little stock which affects him; the patentee has his whole interest consolidated in the Patent. All those who might oppose the Patent are a scattered body, namely, the public generally, not one of whom has any strong interest in opposing the Patent; and I believe that that has been very much worked by patentees, particularly in a small and comparatively frivolous and perhaps an all but useless invention. The public is a scattered body, not one of whom has sufficient interest to meet with equal force the patentee.”

Mr. Platt, M.P., presents the following case, to show how unprincipled people use the power which the law gives them, and how, even with a good case, if they but knew it to be so, people in business are led to succumb to extortion:—

“The fourteen years of the Patent had expired, and five years, so that it was nineteen years from the date of the Patent before the action that I now speak of was commenced. It was commenced by the parties, and I may say that the person who was the original patentee was a person of no money whatever; but he persuaded some party, I believe some lawyer, to advance some money in order to take up this case. I know that many machine-makers, rather than contest the case, absolutely paid the money—the different sums of money that were demanded of them. I came up this afternoon with a gentleman in a train from Manchester, who mentioned this case to me, and who stated that one of his own clients offered as large a sum as £2,000 in one case, to settle the matter. I found that the system was to attack the smaller men, and by that means to extract money in different ways, and there have been a number of instances in which parties have paid in that way. Although not attacked in this instance myself, a neighbour of mine was; I looked over his evidence, and I told him that I thought I could amend it very much, and I told him further that I would be a party to the expense. I said, let me take the case in hand, which I did. Now, nineteen years is a very long time for a machine, and this machine was of a very valuable kind; hundreds upon thousands had been made during the nineteen years, and if this person could have established his claim to a Patent-right, he would have made a very large sum of money, so large as to be almost incalculable. It so happened that I recollected, when it was brought to my memory, that we had made a number of those machines long before the date of that Patent, and the difficulty then was to prove that such a machine had been made, for in nineteen years, speaking of cotton machinery, such machines would probably all have been broken up, scarcely any were to be found in the country; but it so happened that in one instance a very large firm of manufacturers in Preston, of the name of Horrocks, Miller, and Co., had two or three of these machines still left. I got Mr. Miller to come up to London, and we brought one of these machines with us. It was taken into court, and in a moment their own witness admitted that this was precisely the same thing that the other parties had been paying royalty to this man for, and the case was at once abandoned by Mr. Webster, who was then conducting it.”

Sir W. Armstrong told the Commission:—

“Another great evil of the Patent system is this, that an invalid Patent really answers the purpose of protection almost as well as a valid one. I believe that there is not one Patent in ten which would bear scrutiny, and the mere name of a Patent often answers all the purpose. Nobody will face the litigation necessary to get rid of it.

“In very many cases people prefer to pay black mail rather than undergo the expense of a law-suit?—In almost all cases; I know that in my own experience, if I find that a man has a Patent which I am satisfied is not a valid one, I would rather go out of the way to avoid any conflict with him.”

So also Mr. Curtis:—

“I have in one or two cases given £200 to a party for the use of an invention in which I have told him at once that what we used was not an infringement in any shape or form; but rather than run the chance of going to a tribunal where I was fighting with a man of straw, I have consented (thinking it was prudent to do so) to pay £200.”

Mr. Woodcroft, in keeping with all this, testified—

“I know of existing Patents which are but old inventions, as old as the hills.”

The following extract from the Transactions of the National Association for the Promotion of Social Science presents another illustration of the mischief the Patent system works:—

“The Patent in question having been purchased for a trifle by Mr. Foxwell, its merits were subjected to close scrutiny, and the specification being found to be defective in some respects, but possessing the quality of elasticity from the vagueness of its phraseology, it was resolved to improve it under the Disclaimer and Amendment Act. After undergoing a compound operation analogous to pruning and grafting, it was found to embrace almost every kind of shuttle sewing machine. In other words, it was hoped by the possession of this invaluable Patent to control nine-tenths of the sewing machine trade of Great Britain. Fired with this idea, Mr. Foxwell commenced legal proceedings against a well-known sewing machine manufacturer for compensation for an alleged infringement of his amended Patent, and at the third trial succeeded in driving his opponent into a compromise, whereby the sum of £4,250 was paid in liquidation of all demands. Encouraged by this success, he, through his solicitor, apprised the trade of his intention to levy royalties on the users of all needle and shuttle machines other than those manufactured by his licences, and, failing to bring many to his terms, he filed bills in Chancery against 134 defaulters.”

Mr. Abel, of Chancery-lane, in a recent pamphlet, writes thus, to show how, in self-defence, Patents require to be taken:—

“In many cases an inventor takes out Patents for immaterial improvements that he is continually making in his processes or machinery, merely for the purpose of indisputably publishing those improvements, in order thereby to prevent the chance of his being debarred from the use of the same, through a Patent being obtained for them by somebody else.”

The following statement is authenticated by Mr. Grove:—

“I had at one time great doubts about it, but things have arrived at a dead lock. The Courts now really cannot try these cases. We have at these very sittings three Patent cases made remanets because they cannot be tried; they interfere too much with other business. We have at this moment going on a Patent trial which is now in its fourth day. We have had within, I think, a week another trial of a Patent, which lasted seven, and a third which lasted five days. During the time that these Patent cases have been going on there have been heavy Patent arbitrations going on, two of which I can speak to myself; one, I think, lasted seventeen days, and the other, which involved a very simple issue, lasted six or seven days. Those arbitrations went on contemporaneously, and the cases were obliged to be tried by arbitration because the Courts could not try them; it would have occupied too much public time. While these cases have been going on several Patent cases have been also ready for argument in banco, and one has been postponed.”

On this part of the subject I again cite Mr. Platt:—

“There being an adjournment, for example, for a fortnight or three weeks, is there constantly a fresh burst of evidence to meet the difficulty raised at the last meeting?—Yes, it is so; and that prolongs the case very much; in fact, the case that I have in my mind now I have no doubt will cost the parties a sum of £4,000 or £5,000. I cannot see how it is possible for the verdict to be against them, for it has been a frivolous and vexatious proceeding from the beginning, and with the idea of extorting money.”

And Mr. Scott Russell:—

“In your experience have you not seen a great number of dishonest litigants, plaintiffs who bring actions in the way of persecution, and defendants who desire to destroy a Patent, and where one or other of the parties for the most part acts in bad faith, trying to injure his adversary in any way that he can?—I should say that the greater number of Patent cases are cases of oppression.

“Have you known cases of oppression where the patentee has been the oppressor?—Yes, frequently.

“Have you known cases of patentees with a good Patent, and in which there has been what may be called a dishonest attempt to destroy it?—Yes, I have known both on a very large scale; for example, there was the great hot blast case. I was engaged in that from the beginning in the capacity of arbitrator; and in that great hot blast case the whole litigation arose from the ironmasters, who were making enormous sums of money, wishing to get rid of a very small Patent rate per ton, which had accumulated to an enormous sum in consequence of the success of the Patent. The expenses in the hot blast Patent case amounted, I should think, to more than £100,000.”

In the celebrated capsule case, the expenses have been somewhere about half of that enormous sum. In another case, about three-quarters of it. How true, then, is the following, from Chambers’ Cyclopædia:—

“When a Patent has been granted, if it is of such a nature as to lead to competition, infringements are almost matter of course; and the only mode of discovering and checking the infringement is so ineffective that inventors generally pass their lives in constant litigation, fighting a succession of imitators, who often have nothing to lose by defeat, and therefore entail all the greater burden on the legitimate manufacturer. It has been said that not more than three per cent. are remunerative. A Royal Commission has lately been engaged in inquiries as to the best mode of remunerating inventors and improving the law with reference to infringement; but it is doubtful how far the subject is capable of being put on a better footing, so many difficulties being inherent in it.”

And how many of these pernicious Patents do honourable members think have been repealed? Allow me, as to this, to quote Mr. Grove—

“... Very few Patents have been repealed, and, generally speaking, the patentee has been victorious.”

And the Commissioners’ Report:—

“Number of Patents repealed by scire facias from 1617 to October, 1852 19

“Number of Patents repealed by scire facias from October, 1852, to December, 1861 None.”

A natural question suggests itself, Who is to get a Patent, since in many cases there is a plurality of almost simultaneous inventors? Listen to the words of Mr. Webster, Q.C., author of well-known books on Patent-Law:—

“I have frequently had brought before me five or six Patents for the same thing within two or three years, or perhaps even within a year. I remember a remarkable case of a Patent for an improvement in railway wheels, where there were as many, I think, as six Patents almost within six months.”

Sir W. Armstrong shows that sometimes the chief benefit of inventions goes to the wrong parties:—

“A person obtaining a Patent for a crude invention prevents other persons from entering upon the same ground unless at their own peril, and I have known cases where, in the ignorance of the existence of a Patent, improvements have been made, and practical value given to an invention which has been previously patented, and then that patentee has come forward and said, ‘That is my invention, and you must pay me for using it.’ Other people have given additional value to his Patent, that is to say, they have made improvements which he can appropriate to his Patent, and in that way it gives it an additional value. The mere conception of primary ideas in inventions is not a matter involving much labour, and it is not a thing, as a rule, I think, demanding a large reward; it is rather the subsequent labour which the man bestows in perfecting the invention—a thing which the Patent-Laws at present scarcely recognise.

“But you are unable to do so, because you cannot interfere with the Patent over it. Do you find practically that that clogs the progress of invention?—I will take one of my own inventions. I will take an hydraulic crane, for example, which I will suppose that I do not patent, and I will suppose that another person invents an improved valve and applies it to hydraulic cranes, and that he patents that improvement upon hydraulic cranes; clearly the result of that is, that if it gives an improved character to the whole machine he will obtain the monopoly of the machine, because he has a Patent for the improvement, and that carries with it the machine itself.”

Mr. Webster shows how it is that men of science, the real discoverers, miss reward:—

“The number of inventions brought out by purely scientific people I believe to be very few, and for this reason: purely scientific people want practical knowledge to enable them to carry out their own ideas; the mass of inventions, I have no doubt, are made by workmen, or persons of skill and science engaged in some actual manufacture.”

Mr. I. K. Brunel tells—

“Cooke and Wheatstone derived, I believe, a large sum of money from the electric telegraph; and I believe you will find fifty people who will say that they invented it also. I suppose it would be difficult to trace the original inventor of anything.”

Sir W. Armstrong speaks regarding that frequent case—

“An idea which is present to the minds of very many persons at the same time. Without any reference to his competency to develop that idea, and to give it practical value, he is allowed to have a monopoly of it, and thereby to exclude all other persons.”

He points out that—

“As soon as a demand arises for any machine, or implement, or process, the means of satisfying that demand present themselves to very many persons at the same time, and it is very unfair, and very impolitic I think, that the person who gets first in the race to the Patent-office should have the means of preventing all others from competing with him in the development of that particular means of process.”

Mr. Grove, Q.C., eminent in science as in law, hints at a remedy:—

“I am speaking of classes of inventions which, if they may be called inventions at all, would inevitably follow the usual course of trade and the fair scope which every man should have for modifying or improving his commodity. I would not shut out the public from those things. I would exclude from Letters Patent those changes which would naturally follow in the ordinary uses of the machines. I would not prohibit a tradesman from exercising the same ordinary skill in using his machine as we should all be expected to exercise in anything which we happened to make or from changing its form.”

Another question as naturally thrusts itself forward, How far have we benefited by having more Patents? Although the Act of 1852 has greatly multiplied the number, Mr. Woodcroft, the intelligent head of the Patent-office, gives the following answer:—

“There has been no considerable increase of bonâ fide Patents compared with the old law?—No.”

Very suggestive are the following observations of Mr. Grove, as showing which are the kinds of invention, so-called, that pay best, and how absurd, if people would reflect, they must consider our present mode of rewarding and stimulating invention:—

“A Patent may be an extremely valuable invention; for instance, the manufacture of aluminium is of the utmost importance, but it was of very little trade value for a long time. When aluminium was first made what I may call a practical manufacture, it was of no value to any tradesman at all; it would take probably ten or twenty years before such a thing could have any approach to practical value. On the other hand, the most frivolous Patent—the turn of a lady’s hat, the cutting of a shirt-frill, or a new boot-heel—may be of very considerable value, from the number of bootmakers all over the country who would have to order it, every one of whom would pay an extremely trifling licence duty, and therefore the Patent would be a very good Patent to the patentee. In my judgment those are not good subjects for Patents, and there the opponent would have no interest equivalent to that of the patentee to meet him.

“Although I know that the Law Courts have come step by step to include a greater number of inventions, yet I should not call an improvement in a shirt-frill, that is to say, a peculiar method of cutting the little puckered linen which is sewn and used for shirt-frills, or a particular shape of the brim of a lady’s hat (I am speaking of existing Patents), a proper subject for a Patent.”

The following is from the evidence of Sir Francis Crossley, Bart., M.P.:—

“A Patent was taken out for simply putting india-rubber at the end of a glove, so as to make it tight round the wrist; that might have been considered a frivolous Patent, but I believe that it was thought to be a very good one in the trade, and it was new and useful.”

So Mr. Richard Roberts, of Manchester—

“In the case of an improved button, the Patent pays very well.”

Of another class of illegitimate Patents, Mr. Newton, the eminent Patent Agent, says:—

“Patents for obvious applications.—I may take for instance the use of alpaca for covering umbrellas. There is no invention in it.”

In 1851 Mr. Carpmael was as distinct and condemnatory:—

“A multitude of things for which Patents are granted have no invention in them; in nineteen cases out of twenty, if there were cheap Patents, they would be for things which already exist, and people would only use Patents for the purpose of advertisement and publication.

“If you grant a Patent, and give to a man the means of advertisement, for a small sum of money, he will not investigate it in the slightest degree in the world; he does not inquire, and does not wish to inquire, but he goes and spends his money, and then he advertises, because the Patent appears to give him a standing different from his competitors in the same way of business.”

In 1829 Mr. Farey, Patent Agent, went further:—

“I have urged the utter worthlessness of their Patents, but they did complete the specification; they have sometimes acknowledged, and said perhaps they might nevertheless sell the Patent to some one who did not know that fact.”

Mark now how Patents hinder progress in manufacture. Hear Mr. Brunel:—

“Take the Electric Telegraph Company. I believe we should have had that telegraph much improved, and that it would be working much cheaper, and that we should have had it all over the country, but for the misfortune they laboured under, of having Patents which they were obliged to protect; and they were obliged to buy up everybody’s inventions, good or bad, that interfered technically with theirs. I firmly believe that they have been obliged to refrain from adopting many good improvements which they might have introduced themselves, but did not, because they were afraid that it might shake their Patent; and I believe that the stoppage put to inventions by this state of things is far greater than would result from secrecy.”

The same is certified by Sir W. Armstrong:—

“I am quite satisfied that a very great number of inventions which have remained inoperative for years and years, many of which I could easily name, would have been brought to perfection very much sooner if it had been open to all the intellects of the country to grapple with the difficulties of them.

“May we take it that under the present system, if a man has obtained a Patent with little or no inquiry, although that Patent would not stand investigation if opposed, yet if the patentee is content to impose a moderate tax upon those who want to use his invention, they will pay that sum without its being worth anybody’s while to contest it?—Yes.

“Do you believe that the cases of that kind are very numerous?—Very numerous, and the cases are still more numerous in which the existence of a monopoly simply has the effect of deterring other persons from following up that particular line of improvement.”

Another effect is the restraining of publication. Hear Mr. Richard Roberts’ thrilling representations:—

“I have a list of something like 100 inventions that I should have patented thirty or forty years ago, but for the cost.

“I could mention one by which many lives would have been saved if I had had a Patent for it.

“I very rarely make models, but I had one made for this. It was made many years ago. I invented it in 1830, and I mean to say that, if it had been put into practice, things would not have happened which have happened, and which have caused the loss of many lives, as connected with railways.”

I adduce this evidence to prove that inventions actually made are kept back just now. I don’t require to go far for a party who has two or three small inventions (not connected with his own line of business); but—such is our “system”—no ready means to publish, and so has for years kept them back. But a more remarkable instance is present to my mind. Since about twenty years the same party, having been then consulted by an employé of a house near Birmingham, is the reticent possessor of an inventor’s secret. That inventor’s name he does not know. His invention is ingenious, and may be practicable. It affects an article of universal consumption, and, so far as I know, has never been patented or thought of by anybody else than he who confided the secret, nor introduced to use by him, although, in my opinion, sufficiently promising to be worthy of attention.

One of the ways in which Patents hurt trade is shown by Mr. Platt:—

“Are there not some large manufacturers who like to keep the monopoly of a Patent in their own hands, who obtain money and go on manufacturing without granting licences to others?—Yes.”

Sir W. Armstrong testifies to this power to refuse licences:—

“Is it not the case that such possessor could refuse you a licence, and so prevent you from making the improvements altogether?—Certainly he could.”

Lord Chelmsford confirms the legality of this procedure:—

“If he chooses to work the Patent himself exclusively, it is only doing what the law permits him to do.”

Where there is not downright refusal, Sir W. Armstrong shows that patentees ask too much:—

“I have known patentees very exorbitant in their demands for licences—far beyond the merits of their inventions.

“In that case the power of fixing an exorbitant price, really preventing the use of the article altogether, operates very disadvantageous to the public?—No doubt of it.”

So Mr. Newton:—

“The claims of patentees are very frequently, and I may say generally, excessive, and beyond the real value of their inventions; but there may be cases in which new conditions of things arise, and the invention, if invention it may be called, becomes a matter almost of necessity, and the public must have it. The case which has been put, I think, is a very strong one, in which a public company or a large capitalist buys up all the existing Patents, and thereby acquires a power which may be exceedingly oppressive.

“... I have seen much folly in the refusal of licences. I introduced the sewing machine into this country. I sold it for a small sum, and I offered some years afterwards to the owner of the Patent as much licence-money as 10l. per machine, and that was refused.

“A poor man invented and patented the making of ‘cock-spurs’ (supports for dishes and plates while submitted to furnace heat) by means of dies, and established a small business upon the manufacture. Some years later a gentleman improved upon the invention so far as to make the cock-spurs 500 at a time instead of singly. The earlier Patent being brought to his notice, he desired to make terms with the original inventor, and offered him a liberal sum, together with the sole right to sell the new manufacture in his own locality (the potteries). He could not, however, be brought to accept these, or indeed any terms; but, contrary to advice, commenced an action for the infringement, and was cast by reason of an unimportant claim in his specification being untenable.”

As a preventive of this abuse, and almost as a sine quâ non in the Patent system, “compulsory licences” have been proposed (see the proceedings of the Social Science Association, 1858, 1860, ’61, ’62, ’63, ’64), but the Royal Commission has reported against them as impracticable.

No wonder, then, that it is said the system hurts inventors themselves, even those inventors who are patentees:—

“Nothing could work greater injustice qua the inventors themselves than the present Patent-Law does. Many most meritorious inventors under the present Patent-Law are utterly ruined, enrich others, and never pocket a farthing themselves; therefore the present law is as unjust as a law can be in its practical working.”

Listen to the elder Brunel:—

“Almost invariably when the Patents come before the public, the beneficial interest in them is not held, to any great extent, by the original inventor, but that it has changed hands many times before it comes out before the public. I should say that, in the majority of cases, the original inventor gets little or nothing. In most cases the original inventor has a very small beneficial interest left in it, and in most cases I doubt whether, even in Patents that are saleable, he is much the gainer on the whole, taking into account his previous loss of time and money.”

Sir W. Armstrong points out how, and how much, poor inventors suffer:—

“I have every week letters from inventors, and I dare say you have the same; I have scores of them. Poor men very often come to me imagining that they have made some great discovery. It is generally all moonshine, or, if it looks feasible, it is impossible to pronounce upon its value until it has passed through that stage of preliminary investigation which involves all the labour, and all the difficulty, and all the trouble. Many a poor man is ruined by fancying he has made a discovery which, by means of a Patent, will bring him a fortune. He loses all relish for his usual pursuits, and sacrifices his earnings to a phantom.”

Mr. Spence agrees:—

“I do not believe that any system of law could be devised which would enable a poor inventor in this country to fight his own battle. He can only fight it by interesting some capitalist, more or less wealthy, in the probable promise of his invention; the result is, as all know, that some ninety-eight out of every hundred Patents end in loss to the parties and are worthless to the public.”

Mr. Grove leads to the same conclusion from another point:—

“If the patentee himself was a wealthy man and a large manufacturer, having 20, 30, or 40 Patents in his possession, he would struggle to the utmost to maintain his Patent; he would retain the ablest advocates and the ablest scientific witnesses; and there would be no chance of repealing the Patent unless the person opposing it had something like an equality of purse to go into the field. You never could get the battle fought if one side was wealthy, without the opposite party having something like equal powers to oppose him.”

Mr. Brunel thus states his conclusion:—

“I believe them to be productive of almost unmixed evil with respect to every party connected with them, whether those for the benefit of whom they are apparently made, or the public.”

I proceed to call attention to the effect of Patents as seen and felt in Government establishments. Before doing so I quote experience in a private shipbuilding-yard.

Mr. Hall, the eminent builder of the Aberdeen clippers, says:—

“As the sailor with his pockets full is a prey to the crimps, so is a ship-contractor a prey to Patent-mongers—patent windlasses, patent reefing apparatus, patent blocks, patent rudders, patent chain-lifters, patent capstans, patent steering gear, patent boat-lowering apparatus, patent paints, and numberless others, all attempting to hook on to the poor contractor. This would be no grievance, were we not aware that most of them are patent humbugs.”

Like many others, he thinks it very doubtful whether the inventor

“Would not be as well without a law which still allows the strong to prey on the weak.”

The following is from the evidence of the Duke of Somerset:—

“I appear to bring under the notice of this Commission the great inconvenience to the Admiralty of the present state of the law. The inconvenience consists in the apparent facility with which persons can obtain Patents covering a very large number of different inventions under one Patent. For instance, there is a Patent which one gentleman obtained some years ago in building ships for a combination of wood and iron. Now, it is almost impossible to build ships in these days without a combination of wood and iron. Therefore a Patent of that kind, where it is wide-spread, as it is in this case, brings us continually under difficulties with this patentee. Whenever we apply wood and iron, he is watching to see whether or not his Patent is invaded, and he complains and says that different improvements which we have made without any notion of his Patent have been infringements of his Patent rights.... We do not know what Patents are now lying dormant; we never move without knocking against several. I think that we are stopped at every turn.... In the case of the screw-propellers the Admiralty, in 1851, purchased five different Patents, hoping that they should have peace by that means, but they had all sorts of claims afterwards; they were told that they had infringed different Patents, and they have had to pay for other Patents since.

“Persons run and take out a Patent for what they think is going to be done in that way. There are a great many in the case of iron ships. I think that when the Warrior was built there were five or six persons who all said that their Patents were infringed, though I believe that, when the Warrior was designed, none of their Patents were known to the designer, and they had never been used.... They showed me different forms of shot which had been made in the Arsenal a great many years ago, but all of which had since then been patented by different persons, who claimed these forms of shot under their Patents.

“Then there are cases of disputed claims by rival inventors, which are embarrassing to a department; we do not know who has a claim to a Patent, and sometimes when we buy a Patent of one person we are told that we have done a great injustice to another. I remember that when we paid for the Griffith patent screw, which was cutting off a small portion of the screw, I had repeated letters from Sir Howard Douglas, telling me that it was a great injustice to him; that he had invented all this, and that his fame was diminished, and that his rights were taken from him by the Admiralty, who had most unjustly and unfairly paid Mr. Griffith. Those cases are continually arising, and of course they are very inconvenient for a department: they not only take up a great deal of time, but they very often prevent some very desirable process being gone on with.”

Admiral Robinson said—

“There have been twelve upon the construction of ships since 1861.

Mr. Bush Construction of ships.

Mr. J. Clare Construction of ships.

Mr. P. Drake Construction of ships.

Mr. A. Lamb Construction of ships.

Mr. W. Rae Keels, stern posts, &c.

Mr. Thomas and Col. De Bathe Mr. G. Clarke’s target.

Mr. Truss Animal fibre. Armour plates.

Mr. Beslay Preservation of iron.

Capt. Wheatley Position of guns in ships.

M. De Lapparent Carbonising timber.

Commander Warren Bow rudder.

Mr. Feathers Construction of ships.

Messrs. Woodcraft, Smith, Ericsson, Lowe, Blaxland, and Mr. Currie. Purchase of Patents for screw propellers.

Capt. Carpenter Screw propeller.

Capt. Trewhitt Disconnecting apparatus.

Mr. Griffith Screw propeller.

Mr. J. O. Taylor Screw propeller.

W. Ireland Cupola.

Messrs. Laird and Cowper Trimming coals in ships.

—— Distilling apparatus in ‘Defence.’

“In those cases the patentees claimed compensation for infringement?—Yes; and it was necessary for the Admiralty to have recourse to their solicitor, and to enter into a very long correspondence.

“It is very possible that you may infringe upon these Patents without knowing it?—Constantly. The inconvenience which the Duke of Somerset has mentioned resulting from Patents applied to shipbuilding is so very great that it is scarcely possible to build a ship, being a combination of wood and iron (and you always have some of each in a ship), without treading upon somebody’s Patent; and I am entirely of opinion that the Patents are drawn up for that especial purpose, without any idea of their being practically applied for the benefit of the public, but only that the patentee may lie in wait for a colourable evasion of his Patent taking place.”

Now I present the evidence of General Lefroy, deputed by the War-office:—

“The expectations of patentees are very extravagant, generally speaking, and prior to trial it is very difficult to determine at all what is the value of an invention. As an example, a gentleman some time ago made a great improvement in cooking apparatus, and he assessed his own reward at a large portion of the whole saving in fuel which might be effected by the application of this improvement to an enormous extent upon the whole military consumption of the Crown, which would have come to many thousands of pounds. Such an improvement should not be assessed by the value to the Crown, but by what it cost the originator in intellectual labour or previous experiment, and its importance in a large sense.”

Let me next cite Mr. Clode, Solicitor to the War-office:—

“If he has not the power either of keeping those improvements perfectly secret, or of securing them to himself by Patent, then the War-office authorities are placed in the position of having in all probability to pay private individuals for inventions or improvements actually made by their own officers.”

Next Mr. Abel, F.R.S., Head Chemist to the War Department:—

“In your experimental inquiries, when you have happened to fall upon any discovery, you have not been much annoyed by claimants saying that they have had precedence of you?—Not at all, and it is to that that I referred in my first answer. We do not meet practically with those embarrassments during experiments, but we may meet with them in applying the details of improvements. For instance, I am at present engaged upon the working out of the application of gun cotton, the whole details of which application were communicated as a great secret to this Government by the Austrian Government.... While every care was taken by this Government to keep them secret, a Patent was taken out in this country for the whole improved process of the manufacture.”

Mr. Clode again:—

“Some time after I commenced these experiments, while they remained a perfect secret, and while every care was taken by this Government to keep them secret, a Patent was taken out in this country for the whole improved process of the manufacture.... One of them who is present is experimenting upon gun cotton, but it is with him a matter of extreme embarrassment to know how to deal with the subject; if he discloses by way of specification all that he knows, he sends the invention or discovery he has made away to the winds—the very night that it is put upon the file it goes to Paris, Dresden, Berlin, and elsewhere. If he does not do that, he is afraid that some man will find out precisely what he has in view, and put a Patent on the file, and tax the Government in that way. So that we are upon the horns of a dilemma.”

If I were now to stop, and say not a word more, I might trust to the candour of the House for an admission that the case against Patents is proved, on the ground that the conditions of the Statute of Monopolies have been systematically violated, these violations being of the very texture and vitals of the institution.

But I proceed. If the House permit, I will now advert to the new phases the question has assumed since the inauguration of free trade, understanding by that term le libre échange, and not la liberte du travail.

The pernicious effect of home Patents on trade with our Indian empire, is stated thus by Mr. Rendel, in 1851:—

“As engineer to the East India Railway, we had a little inconvenience the other day; we wanted to manufacture articles patented in this country, and we would have had to pay Patent-rights; it was a question whether we had not better buy the iron in India, and avoid the Patent-rights. Those cases, I think, are constantly occurring. The Patent-Laws not being applicable to India, people will not unfrequently order things to be manufactured in India to avoid the licence dues in this country; and the consequence was that I made an arrangement with the patentees at about one-half of the ordinary charge for the Patent in this country.”

In 1851 it was proposed, and in 1852 an Act was passed, to limit British Patents to the United Kingdom, with exclusion of the Colonies. This change was desired by an influential and intelligent portion of the West India Association. Their conduct contradicted, and their experience proves the fallacy of, the allegation so confidently made and repeated in spite of its futility, by some interested or else ignorant parties, that inventions thrive most where Patents exist—i.e., where trade is trammelled with prohibitions or burdened with royalties. The home sugar refiners exclaimed against an exemption which, being partial, operated against their trade. The following is an extract from one of the petitions presented by that body:—

“That, so far as regards home manufacturers and producers, such a change of the immemorial usages of the kingdom is virtually a bestowal on parties carrying on the same businesses in the colonies of a right to use patented inventions fourteen years sooner than they.

“That if, at any time, the British Parliament might have put home manufacturers on such an unfavourable footing, surely this cannot be supposed under free-trade and equalised duties, when they must task their utmost energies, and adopt every improvement in mechanism and processes, in order to maintain their ground.

“That the use of future Patents, at the rates that have been freely paid by sugar refiners for Patents granted before now would subject each sugar house, of average size, to a payment of about £3,000 a year.

“That to exempt their competitors in the colonies from such a tax (for tax it is, payable by order of, though not to, the State) is really to give them a bounty of that very large amount.

“That, in so far as patent fees may be considered a premium for stimulating improvements, an equal share of the benefit is enjoyed by the colonists, who, therefore, should bear a due share of the burden.”

Soon after that time, protection having ceased, the unfairness of burdening British manufacturers came more vividly into sight. How can they compete with Prussia and Switzerland? Here is evidence regarding those countries. From a Prussian witness:—

“I am a member of the Board of Trade and Commerce, and at the same time a member of the Patent Commission.

“Will you be good enough to state what is the system adopted in Prussia with regard to protection to inventions?—We have the principle in our country to give as much liberty as possible to every branch of industry and art, and, considering every sort of Patent as an hindrance to their free development, we are not very liberal in granting them. We merely grant a Patent for a discovery of a completely novel invention, or real improvement in existing inventions.”

From an important Swiss witness:—

“There is no want of persons to import them into Switzerland, although those persons thus importing them obtain no monopoly?—When a Patent is taken out in France or England, the process is published; therefore it becomes the property of the public in Switzerland; the Swiss have access to the French or English Patents.

“In that way the Swiss have the benefit of the invention without the charge of the licence?—Yes.

“And so far they have an advantage?—Certainly.

“When inventions in the watchmaking trade are made in France, are they immediately introduced into Switzerland?—I should think so, if they are useful.”

How, I ask, can British manufacturers compete with Prussia, which prudently grants less than 100 Patents in a-year; or with Saxony, which grants only about 134; or the Netherlands, which grant only about 42? Rather, I may ask, how can they compete with other countries in general, even those that grant Patents freely, seeing that it is not incumbent on the British patentee to take a Patent in any other country whatsoever; seeing also that, unlike some countries which grant Patents, we in most cases do not terminate the currency of those we grant at the time when the Patents taken elsewhere expire? Honourable members will understand how serious is the disadvantage under which our manufacturers, and with them, of course, the labourers and artisans who co-operate in manufactures, are placed if they are precluded from using inventions which their continental rivals may use. When licences are given by patentees, the disadvantage is lessened, but not very greatly. The House will agree when it hears how enormous are the royalties sometimes exacted. For a set of inventions in the iron trade, which is not the subject of Patents in Prussia, a single firm is said to be paying at the rate of £16,000 every quarter. Let me quote from a leading article in the Engineer:—

“Owing to the invalidation of his Austrian Patents, Mr. Bessemer derives no pecuniary benefit from the working of his inventions in that country. This is also the state of things in Prussia, whose really iniquitously-managed Patent Commission have refused to give Mr. Bessemer any Patent at all. The great Prussian steel works there manufacture Bessemer steel unweighted by any royalty. We regret this, not merely for Mr. Bessemer’s sake, but also on public grounds. Our steel makers are thus heavily handicapped in the industrial race with royalties of from one to even three pounds per ton.”

See a confirmation of this in the following piece of a private letter:—

“The very heavy royalty payable under Bessemer’s Patent does, to a very great extent, prevent English manufacturers competing on the Continent for steel rails; but, from the accidental circumstance of continental manufacturers being obliged to buy a considerable portion of their raw material from this country, we have not been exposed to competition in England, as the cost of carriage backwards and forwards about equalled the benefit which the Germans enjoyed of paying no royalty.”

The sugar-refiners, in a printed document before me, put the case, convincingly no doubt to all who will consider how small is the percentage margin of profit in great businesses:—

“If, for any invention, French producers of refined sugar should have only royalties of one per cent. ad valorem, while the British should have to pay royalties of five per cent., it is obvious the Patent-Law may in effect impose on the latter a most onerous differential duty.”

In that trade I myself, shortly before my retiring from commerce, paid £3,000 for a year’s right to use a new process, which proved unworkable, and had to pay a solatium of £1,000 for leave to discontinue it.

The agricultural interest should not remain indifferent. Mark what was told the Commission by Mr. Reeve, Registrar to the Privy Council. In Mr. Bovill’s Patent there was charged a royalty of 6d. a quarter on all the corn ground in Great Britain by millers who thought it desirable to adopt his plan. Obviously the royalty in that case had the effect of a protective duty leviable for individual benefit, and enabling foreigners to undersell in the British markets. And what title to this power had Mr. Bovill? He was not the inventor. Another case is exhibited in the following extract from a private letter with which I am favoured, from a highly respectable quarter:—

“Patents have become so numerous and so various, that it is not safe to use any piece of machinery, or make any variation without first making a careful search to ascertain whether it is not protected by a Patent. The Patent-Law has also been the cause of much litigation, there being very few Patents of any real worth but have had to go through the ordeal of the Law Courts, and there can be little doubt that injustice has frequently been done both to patentees and to the public. A case of considerable hardship connected with our own trade occurred regarding the application of the exhaust to grinding purposes. It was clearly proved at the trial that the machine for which the patentee claimed protection had been in public use in Denmark, where it had been seen by a Glasgow miller, who erected a similar machine on his premises in Glasgow, but hastily threw it aside without putting it to a proper test prior to the date of the Patent, but it was held that no profitable use having been made of the machine by the Glasgow miller, the Patent was good and perfectly protected. In our opinion a Patent obtained in such circumstances should never be allowed to stand, and if some means could be devised for ascertaining the circumstances beforehand, it should never be granted. The trade suffered very considerably in consequence of this Patent being sustained, and the consequence was, that although the patentee was not the original inventor, he pocketed a very large sum of money.

“A more recent instance has occurred, however, of a large sum being pocketed by parties not the inventors of the article patented. We can, however, only give you the figures as popularly reported, without vouching for their accuracy, and in relating the story we shall endeavour to reply to your queries seriatim. 1st, The patented article is a machine for dressing millstones by means of a black diamond, or piece of ‘bort,’ instead of by the hand with picks. It was originally patented in France by the party said to be the inventor, and shortly afterwards was patented by him in this country. 2nd and 3rd, A Leith commission agent (a German) and an Edinburgh miller saw the machine in the Paris Exhibition of 1867, and induced the patentee to bring it over to Scotland for trial, and ultimately they, in conjunction with a third party, purchased the patentee’s right for the whole kingdom for £4,000. 4th, These parties immediately put the machine in the market, and it was at once seized hold of by speculators, who readily gave most extraordinary sums for it. One party is said to have paid £40,000 for the right for a dozen counties in England; another £15,000 for three counties; and another £20,000 for some counties in Ireland: the whole sum realised by the original purchasers amounting, it is said, to upwards of £150,000. 5th, The consequence is, that such enormous sums having been paid by the speculators, the trade can only get the use of the machine by paying a most exorbitant price, and hitherto it has remained all but a dead letter. We cannot give you in round numbers the amount expected to be realised by the speculators, but the price originally charged by them would have yielded four or five times the amount they paid if the whole trade had become purchasers. This machine has not yet been the subject of litigation, but there is every probability that it soon will be.”

But I can reproduce a case where the effect was far, far worse, communicated to me in a private letter:—

“The patentee of the Howard series of improvements in sugar-refining granted licences to houses in Liverpool and Hull, with a condition in each case that he would not grant a licence to any party carrying on business within seventy miles of either town. A sugar refiner of long standing, established in Sheffield, applied for a licence, and was refused for the reason above stated, Sheffield being just within the prescribed distance. The consequence was, he had to carry on his manufacture for nearly fourteen years on the old system; and during this period sustained great losses by working, which he, as well as parties cognisant with the facts, attributed to the disadvantage he was compelled to carry on under. His fortune disappeared, and he became insolvent.—I am, &c.

“Sheffield, December 17, 1863.”

This distressing result will, I trust, drive home the conviction that, great as is the evil of multiplying Patents, it would be but a mitigation not worthy of being looked to as a cure, to get the number lessened.

If in an earlier part of this address I have shown that the condition not to produce “general inconvenience” has been preposterously set at nought, surely these passages prove no less conclusively that there has been equal disregard of the condition not to “hurt trade.” I will satisfy myself, and I hope the House, with one extract only to prove what I apprehend is the rule rather than the exception, that Patents offend against the other condition, not to “raise prices.” It is from a paper read by Mr. Lowry Whittle before the Statistical Society of Dublin:—

“I was informed lately of a case in the North of England where a successful patentee produced a machine at the cost of £200 for working in the linen trade. On this machine his royalty is £1,000.”

I may give one instance from my own experience, where the pretensions of the applicant for a Patent were equal to about a farthing a pound on all the sugar that the process perfected. The House may understand the hardship this would inflict on the population when told that it was for the use of a single process only, or rather of a machine invented by another, an engineer firm, who had overlooked, and not included in their Patent, its applicability to sugar. My experience in that case was very instructive. Pardon my introducing a few particulars. I have no reason to think the idea of applying the machine to the refining of sugar was original; on the contrary, it had been already made practical on the Continent. Nor was the idea patented by my friend alone; on the contrary, to several persons it had occurred, by some (I forget how many) it had been patented. One of my partners and I had a good deal of travelling in England and Scotland, when we discovered the first patentee of the application at length. We traced the indubitable priority home to a good neighbour, whose office was within a bow-shot of a sugar-house of which I myself was managing partner. He told me, when I called about his Patent, that he had not attended to it for years. I regret to be able to add that he was afterwards led, by representations which I will not characterise, to part with his privilege—it was really a very valuable one—for a most inadequate consideration, to a person who had applied for a parasitical Patent for something, the value of which could not be substantiated. Perhaps the worst of all is, that the really most meritorious person, the patentee of the machine, got comparatively little advantage from its new but natural application. A coalition was formed whose terms violated one of the conditions to which I have called attention, by charging an exorbitant price for the machines, and, what is the greatest mischief of Patents as now administered, by further charging high royalties proportioned to the quantity of work they did.

Now will the House consider why it subjects the nation to all this inconvenience, loss, and expense? It is not because without it we would miss many important inventions. The groundlessness of such a fear has already been indicated with sufficient plainness.

The House can hardly doubt, from its individual acquaintance with what goes on in the world, and from the extracts I have troubled it with, that whatever argument in favour of maintaining a Patent system may be founded on the claims of inventors, the material interests of the nation would suffer little from the cessation of Patents as a stimulus. Unquestionably, if the system induces some inventions to be made and published, it deters others. What we gain is a matter of doubt. That much inconvenience is inflicted by it, and much disadvantage and very heavy burdens, is no matter of doubt. It is a case in which we have to balance the positive disadvantages against the supposed advantages. To enable the House to weigh these, by seeing how few inventions we would lose by total abolition, a few more quotations may be permitted.

Very significantly Mr. Richard Roberts answers:—

“Would the absence of Patents for inventions, in your judgment, have any effect in producing secret trades; or have you had any opportunity of judging whether non-patented inventions are used much in secret trade?—I do not think there is much secret trade, but I know this, that no trade can be kept secret long; a quart of ale will do wonders in that way.”

Let me adduce Mr. Woodcroft:—

“Do you think there is any natural tendency or propensity in inventors to keep to themselves their inventions, or have they a natural tendency to make them known?—The natural tendency of an inventive mind is to make the invention known.”

I now adduce the late able Mr. Fairrie:—

“You believe that the same energy of mind would be displayed, and the same anxiety to make new discoveries felt, whether there were this hope of protection or not?—I think so; in the case of manufacturers certainly. I think the great bulk of improvements proceed from the manufacturers themselves, and not from mere inventors.”

Hear Colonel Reid, so well entitled to speak:—

“Supposing the law were so modified as to make the acquisition of a Patent easy and simple, and to provide for the publication at the earliest possible period, do not you think there would be more inducement to the disclosure of the secret under such a system than if all privileges of the kind were abolished?—I am inclined to think that the advance in improvement in all our arts would be greater by leaving them entirely unshackled.”

Sir W. Cubitt was asked—

“Have you ever been an inventor yourself?—Yes, of many things; but a patented inventor of but one.

“You have taken out a Patent?—I took out a Patent in the year 1807.

“Has your attention been at all directed to the advantages or disadvantages of the present system?—Yes, it has been drawn to the subject very frequently indeed; but the more it was drawn to it, and the more I saw of it, the less I approved of it; but with that disapproval I could not satisfy myself how to devise anything much better; whether to make alterations, or whether to do away with Patents altogether would be best, I can hardly determine.

“Will you state, generally, your objections to the present system?—The objections to the present system are the very advanced state of scientific and practical knowledge, which renders it difficult to secure anything. The principles of mechanism being very well known and very well understood, inventions involving exactly the same principle and to effect the same object may be practically and apparently so different, that Patents may be taken out for what is only a difference in form, intended to produce the same effect, without there being any difference in principle.”

So Sir W. Armstrong:—

“My firm conviction is, that if there was no artificial reward for invention you would have just as much as at present.”

Mr. Grove perhaps goes at least part of the way:—

“The Patent is to encourage invention; if, therefore, you would get the same inventions as we now get without Letters Patent, I would have no Letters Patent at all. I believe that, with respect to the minor class of inventions, you would get them.”

Mr. Platt also has his doubts:—

“Is not almost every Patent which is now granted a Patent for an improvement?—A great many Patents are granted for things which are no improvement at all.

“I would simply limit the Patent-Law to that extent. I think there are so many Patents granted that it is a great question with me, I confess, if Patents for these combinations are to be granted, whether it would not be better to abolish the Patent-Laws altogether, as it becomes such a nuisance in conducting a large business.”