« PreviousContinue »
them beneficial both to inventors and to the people at large, is a question which has a politico-economical importance, which belongs to few branches of law reform. False steps may be taken in our attempts to improve most other branches of the law, without any more serious effect than causing unnecessary expense and trouble to be incurred, by the individuals who happen to come within the operation of the laws which have been dealt with ; they seldom have a prejudicial effect upon the well-being of the people at large, and they rarely put a direct check upon the national prosperity and advancement. With respect to amendments of the patent laws, however, the case is different.
Good patent laws are the great stimulus which induces inventors to persevere till they have reduced their ideas to practical and useful forms, and according as we amend them upon sound or false principles, will the inventive geniụs of the nation continue to contribute to our prosperity and advancement, by the production of inventions which perseverance and industry have made perfect and practically useful; or will languish and decay, giving us nothing but crude ideas and philosophical toys, of no use either to the public or to the inventors themselves.
We propose first to discuss the justice and policy of our patent laws as a general question, and then to enter into some of the amendments by which we think they may be improved and made more conducive to the encouragement of inventive genius—the object which should be kept constantly in view in dealing with this branch of law reform. We think, however, we shall make ourselves more easily intelligible if, before proceeding to the discussion of either of these divisions of our subject, we give a short account of the origin and history of the laws of which we are about to treat, and of their principal provisions as they now exist. We find from the early history of our manufactures, that during many ages after the Norman conquest, the English were not proficient in the cultivation of the industrial arts,
and that, though they had sufficient energy and perseverance to work branches of industry which others had shown to be profitable, they seldom originated arts or manufactures for themselves. It thus became the policy of the kings of England to induce foreigners to introduce their arts and manufactures, and in order to do so, they exercised a part of the recognised prerogative of the Crown in granting them “privileges,” conferring valuable rights and immunities with respect to the working of the arts and manufactures which they introduced. In these grants of “privileges” to foreigners, we find the origin of our present practice of granting letters patent to inventors.
So long as our sovereigns confined themselves to grants of this description, this exercise of their prerogative was wise and beneficial, for it gave their subjects the immediate advantage of arts and manufactures of which they would otherwise have been for a long time deprived. These “privileges,”
a however, were not granted, without the reservation of valuable rights to the grantors, and the cupidity of our successive monarchs led to such abuses, that, in the time of the Tudors, the Crown was in the habit of selling monopolies for the working of manufactures which were not new, and for the sale of articles, the manufacture of which had long been known to their people. This practice was carried to such an extent in the reign of Elizabeth, that the national prosperity was fast sinking under it; and when the subject was brought before the House of Commons in the 41st year of her reign, it was found that the salt, iron, powder, brush, earthenware, sea-coal, train-oil, bottle, and almost all other trades were carried on under monopolies, which had been sold by the Crown, or given to courtiers. The examination which the subject then underwent, and the disclosures which were made, drew public attention to the question, and called forth such a strong expression of opinion against the grants which had been made, that some of them were immediately cancelled. T abuse was, however, continued in the time of James I., until it was finally abolished by the well-known Statute of Monopolies in the 21st year of his reign. A proviso in this Statute reserved to the Crown the right of granting letters patent and grants of privilege for the term of fourteen years or under, for the sole working or making of any manner of new manufactures within the realm, to the true and first inventor and inventors of such manfactures, which others, at the time of making such letters patents and grants, should not use.
This proviso is the foundation of our modern patent law. The Statute of Monopolies has been amended and improved by various Statutes, which it is not necessary for us to mention particularly, and into the details of which we shall not enter at present. At this stage of our enquiry, it will be sufficient for our purpose to state the general effect of them, leaving such of the details as we intend to notice, to be stated when we begin to treat of some amendments of the law which we think would be advantageous. The general effect then of the Statutes now in force relating to the granting of letters patent for inventions is as follows:-Any true and first inventor of a new art or manufacture, or any one who is the first introducer into this country of a foreign art or manufacture, can, upon certain conditions, to be noticed hereafter, have granted to him, his executors, administrators, and assigns, the exclusive right of making, using, exercising and vending such new art or manufacture, within the United Kingdom of Great Britain and Ireland, the Channel Islands, and the Isle of Man, for the space of fourteen years from the date of the grant. One of the conditions, upon which this exclusive right is granted, is, that the letters patent shall cease and be void, if at any time during the period for which they were granted it be made to appear to the Sovereign, her heirs, or successors, or to any six or more of the Privy Council, that the grant is contrary to law, or prejudicial or inconvenient to the subjects in general, or that the invention, at the time of the grant, was not a new invention as to the public uzha id working thereof within the United Kingdom of Great Britain and Ireland, the Channel Islands, and the Isle of Man, or that the patentee was not the true and first inventor thereof within the realm.
Another condition is, that the grant shall become void : if the patentee, his executors, or administrators, neglect to particularly describe and ascertain the nature of the invention for which the patent has been granted, and in what manner it is to be performed, by an instrument in writing under his, or their, or one of their hands and seals, and to cause such instrument to be filed in the Great Seal Patent Office, within six calendar months next and immediately after the date of the letters patent; or if the patentee, his executors, administrators, or assigns neglect to pay a stamp duty of fifty pounds, and to produce the letters patent, stamped with a proper stamp to that amount, at the Office of the Commissioners of Patents for Inventions, before the expiration of three years from the date of the letters patent; or if he, or they, neglect to pay a stamp duty of one hundred pounds, and to produce the letters patent, stamped with a proper stamp to that amount, at the Office of the Commissioners of Patents for Inventions, before the expiration of seven years from the date of the letters patent; or if he, or they, neglect to supply, or to cause to be supplied, for the public service, articles manufactured by means of the invention, for which the letters patent have been granted, in the manner, at the times, and upon the reasonable prices and terms settled by the officers or commissioners requiring them.
Moreover, if the art or manufacture for which a patent has been granted in this country was first invented in a foreign State, or by any subject of a foreign State, and a privilege of the nature of a patent has been obtained in such foreign State, before the date of the grant of letters patent in England, it is provided, that the privilege granted in England shall cease, on the ceasing of the like privilege
in such foreign State, or if more than one such privilege has been obtained abroad, immediately upon the expiration or determination of the term of such privilege which shall first expire and be determined ; and that if such privilege in England was granted after the expiration of the term for which a patent or like privilege, obtained in any foreign country, was granted, or was in force, such privilege shall not be of any validity. If a patentee observe the conditions which we have mentioned, the Crown has power to extend the term of his patent, for any time not exceeding fourteen years beyond the fourteen years for which it was originally granted, provided the Judicial Committee of the Privy Council report that such extension ought to be allowed. The provisions of our patent law, which we have noticed, are sufficient to show, that the law of England does not allow an inventor to have the exclusive use of his invention, without imposing many stringent conditions upon him. We shall now proceed to the first direct issue we intend to discuss, which is, that the practice of granting to true and first inventors the exclusive use of their inventions for a limited period, and upon certain conditions, devised in order to prevent the grants from being seriously inconvenient or injurious to the people in general, or detrimental to the public service, is just and politic.
The discovery of a new art or manufacture is the result of labour and expense, and if exclusive property has any ethical foundation at all, its foundation is that universally admitted right, which every man is considered to have, to enjoy the fruits of his own ability and industry. The persons who argue against the justice of allowing inventors to have an exclusive right to the use of their inventions for a limited period, are generally misled either by a confusion of ideas or by ignorance of facts. The confusion of ideas to which we refer is caused by their recollection that modern patents are granted by virtue of a part of the prerogative of the Crown, which was retained by the Statute of Monopolies. They