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tion deserved or did not deserve the protection which a patent gave. The third alternative was to grant patents, as at present, either without inquiry, or what was nearly the same thing-after an inquiry little more than nominal and formal, it being understood that the patent was to confer nothing more than a right to sue in a court of law; that it was not of itself an absolute protection to the inventor, but gave him a right to go to a court of law if the monopoly which he claimed was infringed upon. As regarded the first alternative, there might, perhaps, be more justice in it than at first sight appeared, or than would be generally admitted; but the universal practice in Europe and America was opposed to it; it would be condemned by public opinion, and in many cases it would be attended with injustice to individuals, and with great inconvenience to the public. It would lead to attempts being made to maintain secrecy in manufacturing processes, which would at once lead to various kinds of fraud, and deprive the public of much of the advantage of new inventions; and in the end it might become necessary to adopt some means of remunerating inventors at the public expense, which would throw upon Parliament, or upon the Executive, a duty which neither was fitted to undertake. He believed that those who had thought most on the subject, had come to the conclusion that it was impossible to find any other mode of remuneration than that afforded by patents, which would not be open to the gravest objections; but for present purposes it was enough to say, that any proposal to do away altogether with the protection which patents afforded would be universally condemned in this and other countries. The next alternative, that of referring claims for patents to a tribunal which would have the power of deciding finally whether a patent should or should not be granted, was the one which nearly every person on commencing to consider the subject was at first disposed to approve; but the more one looked into that scheme the greater and more serious became the obstacles to it. He did not hesitate to say that, after a good deal of consideration, those objections appeared to him altogether insuperable. In the first place, as discoveries took place in the whole range of the sciences, where were they to find men to compose a tribunal which would be competent to pronounce authoritatively and Lord Stanley
finally in every branch of science? If the judges had a personal acquaintance with the art or science to which the invention pertained, there would be the risk of prejudice and personal rivalry; if not, there would be the risk of ignorance. Again, before such a tribunal the inventor would be represented, but there would be no one to represent the public. An inquiry of that nature would be a trial between the inventor on one side and the public on the other. The inventor would have an interest in keeping the invention close; and the public, on the other hand, would have as strong an interest in throwing it open. The inventor would be represented by counsel; but who would retain counsel on behalf of the public? Then, again, there would be that objection to which reference had already been made-namely, that those inventions which were most original, and which in the end would be likely to turn out most valuable, would be the most unlikely to receive scientific sanction. Even if all those difficulties had been overcome, how long would such a tribunal, even supposing it to be in the right, be able to hold its ground against the double pressure that would be brought to bear against it-against the complaint of inventors who had failed to obtain what they sought on the one side, and on the other against manufacturers complaining that their operations had been impeded by the granting of unnecessary and frivolous patents? He believed that it would not be possible to maintain such a tribunal beyond a few years; and, further, he was of opinion that during its existence it would not put a stop to litigation. They could not refuse to any person who claimed to show that a patent had been improperly granted for some invention that had previously been made by some one else than the patentee, the right of going to a court of law-the right of a re-hearing in such a case. If that were so, and if the decision of such tribunal would not be final, nothing would be gained by patentees except the right of going to one tribunal to obtain their patents, and afterwards to another to defend themselves against persons who made infringements on their privileges. There would be two trials, instead of one as at present. These considerations led him to believe, that in the first instance the inquiry into the nature of the invention for which a patent was claimed ought, as at present, to be almost nominal and formal.
He did not concede, as was sometimes the patentee power to levy a toll upon
THE ATTORNEY GENERAL said, that the question raised by his hon. and learned Friend and the noble Lord was one which would be of importance in any country, but which was of especial importance in a country like England, where manufac turing industry was so largely developed and the inventive genius of the people was so great. Ten years had elapsed since the last Patent Act was passed; and as considerable diversity of opinion existed upon the subject, the Government were of opinion that a fair case had been made out for inquiry, and it was to be hoped that the result of the inquiry would be such as to render the future working of the law entirely satisfactory. His hon. and learned Friend said very truly that it was matter of just complaint that recourse was had to the machinery of the Patent Law, in too many cases for the purpose of obtaining protection for comparatively trivial inventions. Inquiry might be made as to the best remedy for this evil, At the same
more at the end of three years, and £100 additional at the end of seven years. It sometimes happened that there was a considerable surplus arising from patents, and it was a matter deserving of con
time it was not easy to suggest one. It might, perhaps, be desirable by express legislation to add to the authority of the law officers as investigators of these patents, giving inventors a right of appeal in case of an adverse decision. Another point sideration how that surplus should be was the inconvenience and cost attending dealt with. He sincerely hoped the rethe trial of what were called patent causes.sult of the appointment of the CommisThere again it was not easy to devise a sion would be to bring about as great remedy or to suggest a more satisfactory an improvement in the present law as tribunal. At present these cases were the Act of 1852 produced in the law generally decided by a jury under the di- before that date. rection of a judge. It had been suggested that experts sitting as assessors, in analogy to the Elder Brethren of the Trinity House sitting in the Court of Admiralty, should be associated with the judge in the trial of these causes. That suggestion pre-supposed the absence of a jury; and that being so, he was afraid that the decision of such a tribunal would be more unsatisfactory than that of a jury to those against whom it was given. In this country, as to all matters of fact, there was a strong preference for the intervention of a jury, and the losing party was generally satisfied that he had had his chance and a fair trial. He was afraid, however, that no such satisfaction would result if the decision proceeded from experts sitting as assessors. On the other hand, it was impossible to deny, that though in the north of England and in London competent juries were sometimes impannelled, juries too frequently failed to bring to the trial of these patent causes a sufficient amount of knowledge or intelligence. He, therefore, admitted it would be a subject well worth the consideration of the Commission, whether it would not be possible to constitute some tribunal better adapted for trying these cases than a jury. He doubted whether some of the evils complained of could be effectually got rid of. The great cost of the litigation in patent cases was often caused by incidental circumstances rather than the state of the law, and both the cases referred to by his hon. and learned Friend had, he believed, passed through both courts of law and equity. Of course, if a tribunal could be found, competent to decide these cases in a manner satisfactory to the public and the parties, the necessity for appeals and new trials would be to a very great extent avoided. Complaints had been made as to the expense of obtaining patents; but that expense did not fall very heavy, for it was distributed over a considerable period, £25 being paid within the first six months, £50 The Attorney General
MR. MONTAGUE SMITH said, that he was glad to find that his hon. and learned Friend was willing to assent to the appointment of the Commission. He considered that its labours would be well employed if the only inquiry which it instituted was into the mode of trying patent cases. He had had some experience of juries in patent cases; and, with all the respect for that tribunal, he thought it was utterly inadequate to the task of deciding in a great number of them. Juries might be competent to deal with easy cases, but not with those that were difficult and complicated. As science progressed, every improvement was a step in advance of what had been done before; the cases became more complicated, and it was very difficult for twelve men taken at random as a jury to decide between the different scientific witnesses, and to understand the intricate models that were often produced in court. A present learned judge had assured him, that when practis ing in Chancery, it once took him a week to understand the model of a lace-machine, that he might be able to explain it to the Court. They could not expect a satisfactory decision from a jury in cases involving novelties in intricate machinery, when they saw the models of machines for the first time on the floor of the court, and had no opportunity of mastering their details, even if they had the capacity from previous education to do so. He thought the time had arrived when, for the trial of difficult cases, some tribunal should be created better adapted for deciding them than the juries at present selected. He thought, also, though the judicial staff of the country might be sufficient for its ordinary wants, if patent cases were left to be tried at the ordinary sittings and assizes, it would be impossible for the judges to get through all the business. It would be impossible to get through the heavy mercantile cases that arose in London, if the jurors summoned had to try patent cases that might take a week or more to dispose of. In the
case of "Betts v. Menzies," the Chief the Commissioners could consider the operation of the patent laws without extending their inquiries further, and throwing some light upon the general question as to the advisability of having any such laws at all. He concurred in the view of the hon. and learned Member for Belfast. that the patentee of a useless invention obtained no reward; indeed, he not only received no reward, but he was induced by the patent laws to spend his time very uselessly, and to incur expenses for which there was no return. But he did not agree with the other part of the hon. and learned Gentleman's proposition, that a patentee of a valuable invention obtained a proportionate reward. Whenever a man was the patentee of an invention of great
Justice of the Common Pleas, then a judge of the Queen's Bench, was engaged six long days, the jury returned a verdict for the plaintiff on Saturday night, adding to it a few words which induced the judge to remark he was afraid all their week's work had gone for nothing. The manner in which that case was litigated was alone a sufficient reason for inquiring into the state of the law. After the verdict in favour of the patentee, the case was taken to the Queen's Bench, where the patent was defeated on the ground that an old patent had been discovered in the office by which the invention had been anticipated. The Court considered that the discovery was fatal to the patentee, after going through sevcral courts. Finally, the case was car-national importance, it seemed to invariably ried by appeal to the House of Lords, happen that some ingenious person started where it was still pending. He was glad up and took out a patent for a slight imthere was to be an inquiry by a Commis-provement upon it. They were thus placed sion; without saying that in all cases in this difficulty-they must either refuse juries should be dispensed with, or what patents for improvements on previous should be the constitution of a new tribunal, inventions, or, allowing them, deprive the he thought the principle of the Admiralty real inventor of his reward. The conseCourt might be adopted. There a judge satquence generally was, that inventors were with the assistance of two Trinity masters, led into disastrous lawsuits in order to deand the decisions, he believed, generally fend their rights, and it was remarkable gave satisfaction. So for the trial of patent to see, in reading the history of some of cases, a judge might sit with two experts, the greatest inventors, how their lives as assessors; persons might be selected were harassed by such litigation. There for the duty having special knowledge of was the case of Mr. Cort, the inventor of the subject to which the patent related. puddling iron. He was led into litigation In conclusion, he would congratulate the and died a poor man, and his son, in a House and the country on the probability petition to Parliament, stated that his of an Amendment of the present state of father had never received any benefit from the law, which was not conducive to the his great discovery. Mr. Watt, too, was attainment of truth, and was often the involved in some of the longest lawsuits cause of scandal to the administration of on record, and Mr. Fulton, of whom the justice. Americans were justly proud, died at the age of forty-five, his health having been impaired by the worry of perpetual legal disputes about his invention, in which he became involved. It was matter for consideration whether there was not something inherent in inventions which prevented their being the property of man and precluded any one person obtaining the reward. The speeches which had been delivered that night had told as much against the system as against the existing law; and although remedies had been suggested, he did not believe in their being effectual. He should support the Motion, but he regretted that the inquiry was not to be more extensive.
MR. LEVESON GOWER said, he could not but express his regret at the very limited field of inquiry upon which the Commission was to enter. Some disappointment would be experienced by the public at finding that the policy, as well as the operation of the present law, was not to be a subject of inquiry. In 1851 men who were most competent to pronounce a sound judgment expressed their opinion that patents practically did more harm than good to inventors as well as to the public; and, although some surprise was excited at the time, it was an opinion which had year by year become more and more general. It was very desirable that the doubts which the weight of these opinions had necessarily created should be set at rest, and he really did not see how
MR. VINCENT SCULLY said, he agreed that, in the majority of cases, the patent laws inflicted greater injury than
benefit on inventors; and, if possible, some means ought to be devised to protect them from such injury. There was no class of men who were so much entitled to the protection of the law as inventors, and there was nothing so peculiarly the property of a man as the labour of his brains. The patent laws were improved in 1852, and they now required further improvement. One great evil was the expense attending legal proceedings in these cases. He did not think a jury a fit tribunal, and he would suggest that such cases should be tried by a judge, assisted or not by a scientific assessor or assistant, leaving it to the option of the parties to have a jury if they preferred one. He believed, that if the option were given, the parties in ninety-nine cases out of a hundred would not withdraw the consideration of the question from a qualified judge. Some restraint ought to be placed on the granting of patents which were neither novel nor useful. It would also be a great blessing to inventors if there were some person to whom they could apply for correct information before throwing away their money, which, as poor men, they found it difficult to scrape together. Any man could set set up as a patent agent, there being no certificate required; but a patent agency required as much skill as any profession. It would be a great protection to inventors if they had some scientific tribunal before which they could go in the first instance, and ascertain whether their inventions were worthy of being followed up or not. To do away altogether with protection for inventions would be not only an injustice to inventors, but a disadvantage to the public. The hon. and learned Gentleman had done much good by bringing forward the subject, and he hoped the result of the Commission would be to introduce some improvement in the present law; but he feared it was too much to expect that it would lead to a perfect legal system upon so complicated a subject.
MR. FRANK CROSSLEY said, that, as a manufacturer, he had some experience on the subject, and could state that the body to which he belonged were becoming more and more impressed, not with the worthlessness, but with the importance of patents. The Act of 1852 effected a great reform in enabling men of small means to procure patents, not so much because the expense was reduced, as because it was distributed in several instalments Mr. Vincent Scully
over a number of years. In spite of the
Motion agreed to.
That an humble Address be presented to Iler Majesty, that She will be graciously pleased to issue a Commission to inquire into the working of the Law relating to Letters Patent for Inven
PUBLIC WORKS.-RESOLUTION. MR. DILLWYN said, he rose to move the Resolution of which he had given notice in regard to Estimates for Public Works. The House had so long shown its indifference with regard to questions of financial reform, that if he had been bringing forward his Motion at the beginning of the Session, or even within the last month, he should have felt it necessary to have detained them longer than he now intended to do. The House, however, was at length awakening to the importance of taking some steps towards retrenchment. Many hon. Members had done their best to awaken the country to a sense of its increasing expenditure. The right hon. Member for Buckinghamshire was a convert to, and had advocated a large measure of, retrenchment, and he was glad to see the right hon. Gentleman among financial reformers, and wished that he had spoken from that side of the House, where he would have been more heartily cheered than he was by his usual supporters. He could not agree with all the right hon. Gentleman said in depreciation of "bloated armaments," but he would point out a mode in which he thought the expenditure might be reduced. He believed that the expenditure in the War Department, and in other departments,