When considering modern political debates, it always makes sense to go back, and consider where these laws come from. And with patents, it turns out, just about everything said today by critics of the patent system was already voiced more than 150 years ago. <\/p>\n
I managed to find the archive for this piece here, OCR’d it and corrected it manually. the spelling and rather weird placement of semicolons and double quotes has been preserved from the original. <\/p>\n
\n1851.]\tTHE ECONOMIST.\t811<\/p>\n
AMENDMENT OF THE PATENT LAWS.<\/p>\n
THE measure for amending the Patent Laws, which is about to be
\ndiscussed in the House of Commons, was very fully described by Lord
\nGranville when he moved the committee on the bill on the 1st inst. It
\nwill abolish useless offices, and by requiring accurate specifications,
\nwill prevent many frauds now practised ; it will give protection from
\nthe date of application by a provisional registration, abolish the
\nsystem of caveats, and make all patented inventions easy of access
\nto the public. It will make one patent valid for the United Empire,
\ninstead of requiring, as at present, one for England, one for Scotland,
\nand one for Ireland, and reduce the number of offices now concerned in
\ngranting patents from eight to two — the Great Seal Patent Office, and an
\noffice to be created of the nature of the Record (Attorney-General’s)
\nOffice. The petition for a patent must be left at the Great Seal Office,
\naccompanied by a specification, in order to avoid the evil now very
\ncommon of schemers petitioning for a patent, and spending the six months
\nallowed for making the specification in appropriating some inventions to
\nthemselves of which they have heard or got a glimpse. On depositing the
\nspecification and paying 5\u00a3, the patentee will obtain complete protection
\nfor six months, so that the merit of the invention may in that time be
\ntested. Good inventions will find a market, and less time and money than
\nat present will be wasted on worthless schemes. By abolishing caveats,
\nfraud will be avoided. At present schemers enter caveats when there is a
\ngreat probability that something useful is about to be brought forward ;
\nclaim priority over the real inventor, and harass him or cheat him out
\nof his expected reward. Instead of inviting by such means an envious or
\na designing man to oppose a modest and successful inventor, an invention
\nwill be referred to scientific examiners, the title of the patent will
\nbe advertised, and those who object to its being granted will have an
\nopportunity of stating their objections. Between them and the claimants,
\nthe examiners will decide. To give a remedy against any injustice
\ncommitted by the examiners, an appeal will lie to the law officers of
\nthe Crown.<\/p>\nAnother improvement in the present law is to distribute the payment
\nfor the patent, now required to be paid at once, over a period of
\nseven years. One payment of 20\u00a3 fees and 5\u00a3 stamps is to be made at the
\ncommencement of the patent ; another of 40\u00a3 fees and 10\u00a3 stamps at the
\nend of the third year ; and at the end of the seventh year, 80\u00a3 fees
\nand 20\u00a3 stamps. If the invention should turn out useful, the larger
\nsums required at the second and third periods will be readily paid ;
\nand if it should not be useful, the failure to pay the second and third
\ninstalments will void the patent, the pockets of individuals will not be
\nemptied to their disadvantage or ruin, and the accumulation of useless
\npatents will be prevented. By another clause in the bill, the publication
\nof an invention in a foreign country or in one of our colonies, to which
\nthe patent laws are not extended, is considered as publication at home,
\nand to have a similar effect in preventing the grant of a patent. The
\nmere importation of an invention will not give a claim to monopolise
\nits advantages. Such are the leading features of the new measure,
\nwhich will be a great improvement on the existing law.<\/p>\nOnly one of the many witnesses examined before the select committee
\nto which the bill was referred, advocated the present system, and he
\nis interested in its continuance. Some of them wished the measure to go
\nfurther but as far as it goes all the other witnesses approve of it. They
\nwere chiefly persons connected with patents, and favourable to the
\nprinciple of the old and the new law. Before the committee no witnesses
\nwere called, according to custom, on behalf of the public, though patents
\nare described as bargains between inventors and the public.
\nFor a knowledge of their inventions, it consents to give them a monopoly
\nfor a certain period. How its interests can be represented before such a
\ncommittee, who is at once wise enough to know the interests of the public,
\nand is sufficiently confided in to be its witness, we are not aware, and
\nthe public interest was left, of course, to the care of the committee,
\nhaving, as the rule, no other evidence placed before it by such an
\ninquiry than that of partial and interested persons. In running over
\nwhat they said, nothing strikes us more forcibly than the many tricks
\nand frauds to which the patent system gives rise. Besides the caveats,
\nby which one man attempts wrongly to appropriate to himself the bounty
\nwhich the State gives for invention and which properly belongs to another,
\nthe granting patents “inflames cupidity,” excites fraud, stimulates men
\nto run after schemes that may enable them to levy a tax on the public,
\nbegets disputes and quarrels betwixt inventors, provokes endless lawsuits,
\nbestows rewards on the wrong persons, makes men ruin themselves for the
\nsake of getting the privileges of a patent. Patents are like lotteries,
\nin which there are a few prizes and a great many blanks. Comprehensive
\npatents are taken out by some parties, for the purpose of stopping
\ninventions, or appropriating the fruits of the inventions of others,
\n&c. Such Consequences, more resembling the smuggling and fraud caused
\nby an ill-advised tax than anything else, cause a strong suspicion. that
\nthe principle of the law from which such consequences flow cannot be just.<\/p>\nWe read, therefore, with great pleasure, Earl Granville’s manly
\ndeclaration, that ” he had gone into the committee
\n” with some doubt, and he was sorry to say, such was the
\n” obstinacy of his nature, that all the evidence in favour and
\n” against had sent him forth confirmed in the belief that it
\n” was inadvisable for the public, of no advantage for the inventor,
\n” and wrong in principle, to have any patents for inventions at all.”
\nThat conclusion is not less remarkable than correct ; though we
\nare inclined to be somewhat sceptical as to the following
\nassertion by the Noble Earl, that “if the whole country were polled, the
\ngreat mass of the people would be in favour of the Patent Laws.” Such a
\nconclusion is naturally inspired by living for the moment in an atmosphere
\nof inventors and patent agents ; but believing, like the Noble Lord,
\nthat the principle of such laws is erroneous, we have confidence in the
\nintelligence and reason of the community, and cannot so readily admit
\nthat which. appears to us to be obviously wrong is generally approved
\nof. What the community requires is, that inventors be rewarded ; that
\nskilful men who contribute to the progress and improvement of society
\nshall he well paid for their exertions. The Patent Laws are supported
\nbecause it is erroneously supposed that they are means to this end. It
\nis only necessary to show, as Earl Granville and the inquiries of the
\ncommittee have shown, that they completely fail to answer this purpose,
\nto disabuse the community of the prejudice in their favour. To poll
\nthe community on such a question, the arguments pro and con should be
\nplaced before it, and from them it would ratify Earl Granville’s view,
\nand decide against all Patent Laws.<\/p>\nFrom Mr Ricardo’s evidence before the Lord’s committee, they would
\nlearn, whatever attributes imagination may subsequently have given to
\nthe grant of patents, that it was intended at its origin merely to
\nraise a revenue. To encourage inventors and promote invention were
\nafter and secondary considerations, more like pretexts to justify a
\nwrong than the real grounds of the measure. That taxing inventions can
\ntend to promote them is not agreeable to the common understanding of the
\ninfluence of taxation. James the 1st raised 200,000\u00a3 a year by granting
\npatents. At present about five hundred patents are taken out every year;
\nthe expense of each patent is about 350\u00a3, or a tax of about 175,000\u00a3
\nis annually levied on the grant of patents. To encourage invention it
\nis very heavily taxed. Only a few patents are very profitable, not more
\nprobably than 1 per cent.; and by the Patent Laws inventors are annually
\nmulcted, independently of the sums they are obliged. to disburse for
\nspecifications, &c., &c., of upwards of 170,000\u00a3. The State in return
\nfor this confers on inventors nothing but what they. actually before
\nposseseed — the right to use their invention., and recover by its use
\nfrom the bulk of the community, if they can, the cost of their invention,
\nand the money the State has taken from them. All that the State does and
\ncan do, is to promise that no, other person than the inventor shall put
\nhis invention into use; but the State. as we know from experience, cannot
\nfulfil its promise, and cannot with its utmost power ensure an inventor
\na return of one sixpence for his disbursements. The power to recover
\nthem from the rest of the community depends entirely on the utility of
\nthe invention, which exists wholly irrespective of any guarantee from
\nthe State. It is, therefore, one of the delusions greediness fostered
\nby the Patent Laws, to suppose that the State can ensure an inventor,
\nby a patent, a certain reward for his invention.<\/p>\nFrom the evidence of other gentlemen the public will learn that patents
\nare artificial stimuli to improvident exertions ; that they cheat people by
\npromising what they cannot perform ; that they rarely give security to
\nreally good inventions, and elevate into importance a number of trifles ;
\nthat they much more impede than promote invention ; that most great
\nmodern improvements, such as mule-spinning, lighting streets with gas,
\ntravelling by railroads, and adapting steam to ocean navigation, like
\nthe inventions of arithmetic and
\nprinting in ancient times, were introduced independently of the influence
\nof patents ; and that patents impoverish, not enrich inventors. In fact,
\nthe whole of the evidence lands us in this conclusion, that patents
\nare, as Mr Brunel states, productive of
\n” unmixed evil to every party connected with them, those for the benefit
\nof whom they are given and the public.” The advocates of the patent
\nsystem — the societies which are getting up all the agitation on the
\nsubject, admit this — they complain of it. The only difference between
\nthem and Mr Brunel, Lord Granville, Mr Lloyd, and others is, that they
\nattribute all the evils, which they acknowledge, to our peculiar Patent
\nLaws, and they suppose that by some improvement in the law these evils
\nwould be avoided.; while the other gentlemen justly suppose that the evils
\nare inherent in the system itself, and cannot be got rid of by any change
\nin the terms and form of the law. That the Patent Laws, as they exist,
\ncause immense mischief to inventors and the public — that they are prolific
\nof expense, litigation, and fraud, all are agreed; and it is quite proper
\ntherefore to amend the laws, that further experience of an improved law
\nmay demonstrate to the most sceptical the real source of the evil. That
\nkind of practical conclusion will alone satisfy the inventors and
\npublic. With Lord Granville, therefore, we think that the improved law,
\nsuch as the inventors and the societies and the public demand, or is
\nsupposed to demand, should be passed ; at the same time we agree with
\nthe Noble Lord, and the very respectable authorities he referred to,
\nthat the principle of the law is erroneous, that the system of patents
\nis altogether wrong, and that no possible good can ever come of a Patent
\nLaw, however admirably it may be framed.<\/p>\nThe principle of such a law is to bestow on. one individual the exclusive
\nuse of some particular instrument or object which he claims to have
\ndiscovered or invented. As long as he uses the invention himself or
\nfor his own gratification, no interference is required ; it is only
\nasked for to prevent some other persons from using his invention. An
\nessential part of such a law, therefore — its main principle — is to
\nimpose restraints and restrictions on all others than the inventor. On
\nhim it confers nothing positive, it only imposes restrictions on others
\nfor his presumed advantage. To them it does a certain injury ; on him it
\nconfers only a contingent and doubtful benefit ; and before any such law
\nought to be passed, a rigid inquiry is necessary in every individual case,
\nwhether the probable benefit to the individual will outweigh the certain
\ninjury to society. When patents are granted for the purpose of raising a
\nrevenue the case is different. But when they are granted for the advantage
\nof individuals, such an inquiry is absolutely necessary. Accordingly,
\nunder the old law a reference was made to the law officers of the Crown
\nfor this purpose. Caveats were allowed and a host Of regulations were
\nadopted to ensure the preliminary examination. Under the new law the
\nduty is to be performed by a board of examiners.<\/p>\nA preliminary inquiry of this kind is adopted in the United States,
\nin Prussia, and in Austria ; but in France, where the grant of patents
\nis regarded only as a matter of revenue, any man may have a patent for
\nany thing he chooses, on paying a certain stipulated sum, leaving the
\nquestion of the validity of his claim to the invention to be settled
\nby a contest with his fellow-citizens before the ordinary tribunals,
\nshould any one question his patent. In England, too, the inquiry has
\nbeen, in practice, limited to ascertain whether the new patent claimed
\ninfringed on some previous patent. But the right of patentees are only
\nthought of as part of the rights of the general public, and it is against
\nthe whole public that the privileges of every individual patentee are
\nguaranteed, as well as against other patentees. The principle involved
\nin the inquiry is the propriety of granting the claims of the inventor to
\nthe exclusive use of his invention as against the whole society. Before
\ngranting his claims an inquiry into them is indispensable, and the new
\nlaw, in order to secure a full inquiry, appoints a tribunal of appeal,
\nshould the examiners not satisfy the claimants.<\/p>\nThis circumstance shows that what is called the right of property
\nin inventions — the right, namely of an inventor to exclude every other
\nperson from using his invention after it has been made known — is different
\nfrom most other rights of property. It resembles, certainly, some other
\nexclusive uses created by Government, but they constitute only a small
\npart of the property of all the individuals of a nation; are, in all
\ncases, more privileges than rights; and even in them it is sufficient to
\nestablish the right that the individual is in possession. No previous
\ninquiry is necessary to confer it on him, and inquiry only becomes
\nnecessary if an adverse claim be made.<\/p>\nIt is the very nature of knowledge and skill, totally distinct from most
\nkinds of property, to be improved and extended by being imparted. To
\nlimit the exclusive use of knowledge and skill to one person, as is done
\nin degree by the Patent Laws, is, in fact, to take measures to stop their
\ngrowth. Before the privilege to use exclusively any particular species of
\nknowledge and skill, which by mere inspection can be acquired by others,
\nbe conferred by a law on any individual, a strong case must be made
\nout that the exclusive use is more for the advantage of society than a
\nfree participation in it for all. If a right to such exclusive use were
\na natural right of property, like the right of the savage to own the
\ngame he has run down and begun to cook, no considerations of fancied
\nexpediency would lead us to oppose it. But it is no such
\nright, and those who clamour for the exclusive use, and those who bestow
\nit, are the persons who fancy an expediency that experience proves not
\nto exist. Far from there existing in any individual a natural right,
\nor even power to confine to himself exclusively any knowledge or
\nskill, by using which he may convey that knowledge to other persons,
\nor enable them to acquire the skill; there exists, on the contrary,
\na natural right in every individual to use any knowledge or skill he
\nacquires from beholding it in others ; and there is, moreover, a strong
\ndesire implanted in most men for the wisest of purposes, as a means of
\npromoting the general improvement, to imitate and use any knowledge or
\nskill they acquire by inspection or observation. We deny, therefore,
\nthat the claims made by inventors to the exclusive use of inventions
\nis a right of property ; and we deny, on the broad general principle,
\nthat the utmost diffusion of knowledge is advantageous to society,
\nthat it can ever be expedient to bestow patents on individuals for the
\nexclusive use of inventions.<\/p>\nThe only doubt that can arise springs from the supposition, that an
\nindividual may discover something of such pre-eminent importance
\nthat society will be injured if he be not encouraged by a Patent Law
\nto make his discovery known — to inform the public of his secret, and
\nreceive in return, as one of the witnesses expressed it, protection
\nfrom robbery. Such a statement reminds us of the “Long Range” of Captain
\nWarner ; but the conclusion to be deduced from that case, and probably
\nall similar cases is, that it was of no real importance, and that society
\nwould not be in the least injured though all such secrets died with their
\npossessors. It is more conclusive, because more general against all such
\nsuppositions, that nearly all useful inventions depend less on any
\nindividual than on the progress of society. A want is felt, as stated
\nby one of the witnesses ; ingenuity is directed to supply it ; and the
\nconsequence is, that a great number of suggestions or inventions of a
\nsimilar kind come to light. ” The ideas of men,” said Mr Ricardo, ” are
\nset in motion by exactly the same circumstances.” So we find continually
\na great number of similar patents taken out about the same time. Thus the
\nwant suggests the invention, and though the State should not reward him
\nwho might be lucky enough to be the first to hit on the thing required,
\nthe want growing from society, and not from. the individual or from the
\nGovernment, would most certainly produce the required means of gratifying
\nit. The notion, therefore, that any individual discovers secrets which
\nit would be very advantageous for society to know ; that if he were
\nnot artificially rewarded for discovering them that they would never be
\nknown — that society would for ever want his peculiar kind of knowledge ;
\nand that, because it does not reward the possessors of such secrets,
\nit will lose a great number of such valuable pieces of knowledge, are all
\ndelusions. The progress of knowledge, and the progress of invention and
\ndiscovery, like the progress of population and the progress of society,
\nhave their ordained and settled course, which cannot be hastened,
\nthough perhaps it may be retarded, by Patent Laws.<\/p>\nWe say thus much in support of the very enlightened views which Earl
\nGranville has taken on this question, and which are shared by the Lord
\nChief Justice of England, the Chief Justice of the Common Pleas, the
\nMaster of the Rolls, Mr Ricardo, Mr Brunel, Mr Cubitt, Mr Lloyd, and a
\nnumber of gentlemen of the highest eminence, who have taken the trouble to
\nstudy the subject. We have already discussed it at considerable length
\non Dec. 21, 1850 and Feb. 1, and we can only be gratified at finding our
\nconclusions against the presumed rights of inventors supported by such
\nvery high authority.\n<\/p><\/blockquote>\n