Page images

It had always appeared to him to be a doc- matters in which the Act of 1852 comtrine which could not for a moment be sup- pletely altered the system of patents in ported, and it was quite inconsistent with this country. In the first place, before fixing any limit to the operation of letters 1852 there were no means by which a patent. He regarded it as a question of person who supposed that he had arrived expediency. There could be no doubt that at an invention could obtain temporary it was the interest of the State to encourage protection during the time that he was inventions, as far as they could be encou- endeavouring to perfect it by experiments; raged legitimately. There could be no and while making experiments there was doubt that it was the interest of the State the danger of their amounting to publicato encourage the outlay of money for the tion and preventing his obtaining any patent promotion and discovery of inventions, and at all. In 1852 the Legislature provided, to discourage the concealment of inven- that upon an inventor lodging a descriptions. The question was as to the price tion of his invention, he should have proviwhich it was worth while to give to arrive sional protection for six months; and it was at those results. At that stage of the universally admitted that it was a wise and argument it was impossible to shrink beneficial alteration. The second change from the conclusion at which all writers was in reference to the publication of speon political economy had arrived-that cifications. Up to 1852 the specifications there was no mode by which the reward were kept in writing in certain very obfor inventors was so completely self-adjust- scure offices in London, and were virtually ing in its nature as granting privileges inaccessible to the manufactures of the analagous to letters patent, whereby the kingdom. The Act of 1852 provided that inventor was rewarded by the increased all specifications should be printed and sold price which was put upon the article at a moderate price-not only new specimanufactured. On the one hand, if the fications, but the specifications of patents invention were worthless, he would not get from the earliest period when they were the price, and no one would be injured; granted; and it might be interesting to the and, on the other hand, if the invention House to know, that although only ten were valuable, he would reap the fruits of years had elapsed, the specifications of all his invention, and exactly in proportion to the patents granted since 1611 had been the demand which existed for the inven- printed, were to be found in the public tion which he had made. But although libraries, and might be bought for a very he thought the arguments for a reward insignificant price. The third alteration for inventions preponderated over the was, perhaps, of very much greater utility arguments against it, he submitted that than the other two. Up to 1852 there in appointing a Commission it would be was no possibility of obtaining one patent inconvenient to invite attention to the for the three parts of the kingdom. A question of the propriety of granting let- patent for England could not be obtained ters patent at all, as the inevitable con- until it had passed through seven different sequence would be a division of opinion offices, fees and expenses being charged among the Commissioners upon that higher in each, and then the inventor had to get and broader question; and, instead of ap- another patent for Scotland and another plying their minds to the improvement of for Ireland. The expenses, exclusive of the the existing system, they would enter upon fees of patent agents, amounted to £350. a series of duella as to whether the whole Inventors were now able to take out letsystem should be abolished or not. After ters patent for all parts of the kingdom at balancing the arguments, therefore, he had once, at one office in London, and they arrived at the conclusion, which he hoped had only to pay one patent agent. A the House would approve, that it was most mode of payment entirely novel was origi. advisable to address the Crown for a Com-nated in 1852, and it had proved acceptamission to inquire, not into the policy, but ble to inventors, and extremely useful. into the working of the law with regard to An inventor coming for a patent paid £5 letters patent for inventions. It would on lodging the provisional specification, greatly facilitate his object in bringing and he paid nothing more for six months. forward the particular points in which the At the end of six months, if he wished to law, in his opinion, required amendment, obtain a grant, he paid a sum of £20, and if the House would allow him to direct he paid nothing more for three years. attention to the important changes which During the three years he was able to contook place in 1852. There were three sider whether the patent was worth any VOL. CLXVII. [THIRD SERIES.]


[ocr errors]

further outlay; and if so, a payment of £50 | therefore, 2,000 patents were reduced to carried him on for seven years. During the 200. Hence the provision of the Act of seven years, he had the opportunity of con- 1852, in regard to different instalments of sidering again whether the patent was worth payment, had worked satisfactorily, and any further outlay; and if at the end of had produced a wholesome effect in getthat time he wished to be further protected ting rid of a number of patents, which the for fourteen years, he had to make a final experience of a few years proved to be of payment of £100. The total payment a worthless or trivial character. What, was therefore £175, and it was paid by then, were the evils which were made the instalments, hardly irksome in any degree subjects of complaint, and in regard to to the patentee, and increasing only in which he ventured to ask the House for proportion as the profits of the invention a Commission? The objections against might be supposed to increase. In asking the system proceeded from different quarattention to the imperfection of the patent ters, and were not altogether consistent. laws, he felt bound to give full credit to They might be classed under three heads. those wise and beneficial changes which In the first place, it was alleged that the were made in 1852, and he was anxious facilities for taking out patents, created to say, that as far as he could judge from by the Act of 1852, had led to a multithe statements of those who had occupied plication of worthless and trivial patents, themselves with the question, the changes which were looked upon as a source of made in 1852, although they might not evil by the general body of manufacturers have made the system by any means in the kingdom. The second objection was perfect, were as beneficial and as useful this, that even after all the reductions of changes as were ever accomplished by any expense effected by the Act of 1852, the one piece of legislation. He would next cost of the patent was still too high, and inquire, what had been the consequence of that, in point of fact, there was every that change of the law in the increase of the year a large surplus arising from the fees number of the patents? Going back to 1833, paid in respect of patents, over and above twenty years before the Act was passed, the cost and expense of the office by which the number of patents was 108. In 1851, those patents were granted. The third the year before the alteration of the law, and most serious objection was, that the the number of patents was 455. In 1852- mode by which patent causes, or causes 53, after the new Act came into operation, for the infringement of letters patent were the number of provisional protections for tried, was not merely expensive, but uninventions was 3,260, out of which 2,050 satisfactory, by reason of the want of expatents were actually sealed. Not only was perience of the tribunal which disposed of there a sudden and instantaneous increase them. He could not agree with the second at that time, but down to the present mo- objection, but he thought there was somement, in round numbers, 3,000 provisional thing in the first and third allegations. protections were taken out every year, and The multiplicity of patents had been ex2,000 patents were sealed. In 1860 the aggerated. He had inquired into the number of provisional protections was number of patents granted in France and 3,196, and the number of sealed patents in the United States, the countries in 2,060. It would be instructive to notice which the greatest number of inventions the subsequent history of the inventions was patented. In France, where the exafter provisional protection. In the in- pense of each patent was only £4, between terval of six months between the granting 4,000 and 5,000 were taken out every of the provisional protection and the seal- year; and in the United States, where ing of the patent, about a third of the the expense was £7, the number was applications dropped off, because the par- upwards of £5,000 annually. Judging ties, upon consideration, finding their in- from the number of patents in this counventions not to be worth the further ex- try, it could not, therefore, be said that pense necessary to procure the sealed there was an undue expansion of the syspatents, declined to persevere in their tem; but, at the same time, there could resolutions to obtain them. Of the re- be no question that a multiplicity of pamainder, two-thirds were abandoned at the tents was a great evil. What was the end of the third year, which he might cause of the multiplication of worthless term the next turnpike gate, and nine- patents? It would be found to spring tenths of the rest disappeared before the from three sources. In the first place, no seventh year came round. In that way, doubt a great many patents utterly useless Sir Hugh Cairns

were taken out by supposed inventors-lic, and would be a proper subject for a workmen, perhaps, who, from the limited Commission to inquire into if one were sphere of their observation, assumed that appointed; but, in the mean time, he might they had made discoveries which would be allowed to suggest one or two reasons probably make their fortunes, when it for doubting the efficiency of such an inultimately turned out that they had been vestigation. Such a system had been long before anticipated by others, and tried in the United States; but the late therefore there was no novelty in these Patent Commissioners of that country had inventions. Another cause cause was, that reported strongly against it. So far, then, many persons applied for patents purely as example went, there was not much encouragement to try the experiment in this country. But there was another danger by which it would be attended. A preliminary investigation, let it be observed, must be into either the usefulness or the novelty of the invention. The object of the existing preliminary protec tion for six months was to enable the inventor to test the usefulness of his invention in the only way in which he could test it, before he completed his patent. If the preliminary investigation was held before this protection was granted, they would be trying the question of utility before the inventor had had the opportunity of trying the experiments by which alone the utility of his invention would be decided. It should be borne in mind that some of the greatest men, and those most conversant with science and manufactures, had been the greatest sceptics with regard to the utility of some of the greatest inventions of which they had had the benefit. Sir Humphrey Davy, for example, did not believe in the possibility of lighting houses with gas, and, had he been acting as a judge, would have condemned that invention as useless. Then, as to the novelty of the invention. Of course, if the investigation was to be anything more than a mockery, there must be ample advertisement of the nature of the alleged invention, and time and opportunity must be given for obtaining from all parts of the country objections on the grounds of its want of novelty. It was very easy to say

for advertising purposes, in the hope of selling their wares to more advantage, from being able to make use of the word patent in their advertisements, and with no intention of enforcing their claims to monopoly. That, perhaps, did not do much harm, as the public must by that time be sufficiently on their guard against the practice, and as the patentees did not seek to carry their title into effect. The third cause of useless patents was more serious. It was alleged that certain traders, who were the original proprietors of one or two valuable inventions, took out new patents for small improvements and combinations thereon, or bought up all the patents of a similar character they could procure. Thus, they created a sort of network of patent rights to entrap the unwary and to frighten off rivals in trade. He could not say whether that allegation was true or not; but it was a subject that called for investigation; and if the allegation proved to be well founded, the practice was calculated to be seriously detrimental to the manufacturing community at large, and required some steps to be taken for its prevention and cure. At present the only investigation which alleged inventors underwent before patents were granted, was conducted by the law officers of the Crown. Of course, those officers could not examine into the novelty or usefulness of the invention; all that they could do-and that was often a task of some difficulty was to see that the alleged inventor described in a clear and intelligible manner what he claimed as his invention, so that he might not afterwards add to or take from it. It was by no means uncommon for the law officers to send a description back twice or three times, in order that it might be made sufficiently particular. By some persons it was said that there ought, before a patent was granted, to be some preliminary inquiry of the nature of a public and judicial investigation into the novelty and usefulness of the invention. That was a very plausible demand on the part of the pub

Get objections ;" but the fact was that you could not induce objectors to come forward unless some proceedings were adopted against them for alleged infringements of a patent. For those reasons he thought that it was by no means so clear as it was in some quarters assumed to be that a preliminary investigation would be useful, and would put an end to all undue multiplication of patents. His own opinion was that they were compelled to allow every one to take out letters patent at his own peril, and that what was really wanted was not a preliminary

investigation, but some short, simple, and | from whom the money was derived, had inexpensive mode of recalling or revoking a very strong case for saying that the patents which had been improperly grant- surplus ought to be appropriated to pured. At present the only way in which poses akin to those which led to the such a patent could be revoked was by money being paid. The existing Patent means of a scire facias, a process which Office was in many respects the worst was very expensive, and one result of and most inconvenient that could be conwhich always was that the person who ceived; there was no library where inset it in motion had to pay his own costs. ventors might find means of consulting If there was some simple process, such former specifications, or of studying the as a rule to show cause or something of records of inventions in other countries. that sort, by which a person might be Above all, there was no museum connected called upon to justify his patent with re- with inventions, though it was very well gard to the utility or novelty of the in- known, that from time to time there had vention, he believed that the air might been almost pressed upon the Patent Combe cleared and the manufacturing public missioners large and valuable models which would be at a small expense disembarrass- would be of the greatest value to persons ed of worthless and trivial patents. Then studying the nature of inventions, if they came the question as to the cost of pa- were properly set up and arranged. These tents. Upon that part of the subject it were all points to which inventors and was important to attend to the distinction manufacturers might fairly hold that the between the charge for the patent and the surplus funds which they contributed might appropriation of that charge. He did not more fairly be applied than to the general think that it could be said that the actual taxation of the country. Then it was said charge, £5 in the first instance and £20 that the present mode of trying causes for at the end of six months, was too high. infringing letters patent was very exSome persons, no doubt, thought that it pensive and very unsatisfactory. And he was unjust to tax the inventor, and that thought the House would be startled with the Government had no right to take from one or two instances of that litigation. him any more than the sum actually re- There was a case very well known in quired to cover the expense of the patent. Sheffield, in which a patent had been He took issue with that doctrine. It taken out by an eminent manufacturer seemed to him that, as the question was named Heath. It effected a revolution in entirely one of expediency, the point to the manufacture of steel by the introducbe arrived at was to ascertain what sum tion of a chemical substance, and enabling would, on the one hand, be sufficient to steel to be produced at a reduction of 30 deter persons from making idle and use- or 40 per cent on the previous cost. Mr. less applications for patents, and, on the Heath, from the time he obtained the paother, would not prevent any real and bonâ tent in 1842, till he died in 1853, spent fide inventor from obtaining the grant of his life in litigation. The suit was forletters patent for his invention. There mally carried to the House of Lords; and might be a difference of opinion as to he had obtained a statement which showed whether the best amount was fixed in that the costs of the defendant were esti1852, but he did not think that any case mated at £7,000, and those of Mr. Heath had been made out for the reduction of at £8,000, showing that the two sides had the sum then charged for patents. There expended in litigation connected with a was a much more important point on single patent the sum of £15,000. It which inquiry was also necessary-namely, might be said that that case was prior in with regard to the disposal of the very date to the year 1852; but he had got a large surplus arising yearly from these later instance. A patent was taken out letters patents, after all the expenses con- in 1850 or 1852 by a Scotch gentleman, nected with the grants had been provided named Menzies, for capsules and tops of for. At present these sums, amounting to bottles. The invention was no doubt a some £25,000 yearly, were paid into the very valuable one, and litigation in conConsolidated Fund, and became available nection with it was carried on both in as part of the general taxation of the Chancery and the Courts of Common Law. country, but it might fairly be inquired The question had been lately argued bewhether that was a proper application of fore the House of Lords; he believed judg. the surplus. He could not help thinking ment had not been given, but the solithat the inventors and manufacturers, citor to the plaintiff informed him that the Sir Hugh Cairns

costs of his client amounted to £14,487, | sitting with the judge by way of assessors, and he estimated those of the defend-in patent cases, three or four persons of ant at £10,370. So that the total cost general scientific attainments removed alof legal proceedings in connection with together from the details of trade and the this invention amounted to no less than prejudices likely to arise in connection £24,857. These cases went to prove with it, but still with minds so trained and that the present tribunal for the trial of adapted that they could readily be applied patent cases was at all events not a very to any branch of science, arts, or manucheap one. He did not think, however, factures. With such assistance, aided by that any complaints could justly be made his own knowledge of law and of the rules against the head of that tribunal; neither of evidence, the judge, it was thought, did he hold with some that a judge ought might be able to conduct an action of the to be appointed exclusively for the trial of sort in a manner satisfactory both to the patent cases, because he believed he would patentees and the public. He did not often have very little to do. The question offer any opinion of his own with regard to of jurors was a much more serious one. that proposal beyond saying that between He did not know whether hon. Gentlemen these conflicting suggestions it was very had seen the account, in the ordinary desirable that a body of men should exsources of information, of a trial, which amine the question of patents and manutook place the other day, with regard to factures generally for the purpose of de one of the electric telegraph patents, in termining which was likely to prove the which, after the case had lasted two or most satisfactorily-constituted tribunal. Out three days, and a great number of experts of doors there was a very strong demand had been examined on either side, the jury for inquiry into the working of the patent took up their hats, and said they must de- system. He hoped the House would be cline to go any further, as they could not disposed to accept the Motion which he understand the proceedings. He believed had laid before them. If they did so, and jurors might have done the same in many the Commission which he trusted would other cases, when, from want of acquaint- be appointed was able to see its way, he ance with the subject-matter, they were felt satisfied that by the legislation which necessarily at the mercy, he would not say Parliament might adopt in accordance of the counsel, but of the experts exa- with their recommendations, a considermined, being unable to exercise any judg-able boon would be conferred on the inment of their own upon the evidence. As ventors and manufacturers of the couna remedy for that state of things, he had try, and through them upon the public at heard it proposed to have in place of the large. ordinary jury one composed of expertsthat was to say, of persons engaged in the particular trade or manufacture to which the patent related. But it would probably be found that in many cases a jury such as this would be the very last tribunal to be desired; because it would be composed either of the rivals in trade of the patentee, or else of persons who would be biassed by the effect which the patent was likely to exercise in connection with their trade or manufacture. A proposition of a different character had been made, which seemed to him much more worthy of attention. The House was aware that in Admiralty cases, when a question of a technical character arose, the judge habitually associated with himself, as assessors, some of the elder Trinity Brethren, who possessed great experience in the technicalities which arose in cases of collision and other maritime questions. It had been suggested that in place either of an ordinary or scientific jury, it might be desirable to have

LORD STANLEY said, he rose to second the Motion. His hon. and learned Friend had gone so fully into the question that he should delay the House but for two or three minutes in adding a few remarks to the observations already made. He thought it would be evident to any one who had looked into the question, that there were only three alternatives open to the Legislature when dealing with it. One was to ignore altogether the claim of the inventor to receive a patent or legislative protection for his invention-to throw open in ventions as soon as they were made, and to leave the inventor to obtain his reward simply from being first in the field, and from such secrecy as he might be able to maintain as to the operations he was carrying on. The next alternative was to grant, as at present, patents for a limited number of years, after an inquiry before some tribunal that might be considered competent, that tribunal to have the right to pronounce finally and decisively whether the inven.

« PreviousContinue »