« iepriekšējāTurpināt »
many cases in fact entirely defeats, any advantage to the inventor from a right universally admitted ; for he often cannot use his invention, and at the same time keep it secret, and thus the very attempt to obtain the benefit of his discovery, forfeits it. This strength-. ens his claim on society, for it is precisely the case of an individual too weak to protect himself, and who, therefore, asks the protection of the community. If he is able to keep his secret, and yet turn it to profitable account, his case is that of the head of a powerful party or clan, who is able to defend and protect himself without the aid of a superior power. Such an inventor is in a condition to make his own terms with the community, for the surrender of his secret; and when the terms proposed by the laws are not satisfactory to him, he may reject them. This is, however, true of but very few inventors. They can, in general, at most only lock up their secret in their own breasts, not being able to turn it to any advantage to themselves, except by means of a law enacted in their behalf. Their claim on the community, therefore, for interposition in their behalf, is exceedingly strong; they are entitled to assistance from the combined authority of the community, and it is essentially necessary to them.
Though property in a discovery, therefore, like that in land, originates in and is created by legislation, the right to such property exists to an imperfect degree, independently of the positive laws. In this
view Mr. Rawle remarks, that upon the provisions of the constitution of the United States on this subject, that it was not intended thereby to create rights, but merely to regulate those already existing. The inventor has a right to keep his secret, and if he discloses it he has a just claim to remuneration and reward, according to the amount of his expenditure, and the importance of his improvement.
“Many people form an erroneous notion of the kind of merit, and the degree of application, requisite for making improvements in manufactures. They seem to imagine that most of those improvements are lucky hits, which it is only surprising that nobody ever made before; and so they are unwilling to bestow rewards with liberality on such as they conceive owe their success to fortunate accident, rather than to merit. Yet a little reflection may show how erroneous this opinion is. The great mass of useful inventions is made up, and must be, not of what is altogether new, but of improvements in what is already practised. Such improvements, it is also to be remembered, are more eagerly sought after, and by a greater number of competitors, when manufactures have so far advanced as to employ many hands in a single branch. Since then it must be a very limited branch that employs only a thousand persons; how is
5 Rawle on the Constitution, c. 9, p. 102. Ed. of 1825.
it probable, that in a business where at least that number have been employed for years, any improvement can come to be discovered by chance? Is it not obvious that all the improvements mere chance could bring about, are likely to be discovered at a very early period of such a business ; more especially under the operation of a patent law, to give to every eye the quick-sightedness of self-interest ? Yet persons are heard thoughtless enough to exclaim, of such an improvement as James Watt's on the steam-engine, "How simple! and, how wonderful nobody ever found it out before !? They that say of such an invention, “How simple !' should consider what they mean. If the simplicity they speak of, refers to the adaptation of the means to the end, they are quite right. In this acceptance, simplicity is the very highest merit of an invention ; for of all the means that can be used to effect a given end, the simplest are evidently the best. But if when they say, “How simple !. they mean, how easy to be done, and how easy to be found out, they are as wrong as they can be. For if the contrivance was thus easy to be hit upon, why had it been missed by the numerous persons engaged for so many years before, in the making, in the working, and even in the improving of steam engines? The very simplicity of an invention, which leads the inexperienced to infer little merit or application in the inventor, is most commonly the sequel of complications, which in succession have been contrived by him, and in succession been rejected. Indeed, who that ever cast a glance of intelligent observation upon our manufactures, or that has ever been struck with the combined simplicity and efficacy of the means employed, can do otherwise than infer that any one of the means that he admires, must have been selected for superiority, when perhaps a thousand others have been rejected ? So far from simple means of effecting an end being proportionably obvious to adopt, whoever has opportunities of watching young persons beginning to cultivate any branch of experimental science, may observe that complicated means to effect an end are those they try first; and indeed, whenever there is witnessed, as in the case of Watt, an early or immediate adoption of simple means to accomplish a desirable end, it is safe to infer the possession of great powers, such as experience, in their exercise, can alone inspire. In the attempt of Watt, the only circumstance that can be attributed to chance, was, that a working model of a steam engine came into his hands to be repaired. But what made that model suggest to his mind, inquiries and doubts that had never struck any mind before? No one can read the simple account of his discovery, as given by himself, in his Notes to Dr. Robinson's Works, without being satisfied that when that model came into his hands, it was to undergo a scrutiny, such as the steam engine in no form had ever before been subjected to.”6
Another reason for granting this species of monopoly, is, that the whole community has an interest in the advancement of the useful arts, since the greater the perfection to which they are brought, the greater will be the amount of necessaries, conveniences, comforts, luxuries and amusements, within reach of every one, for the same expense. This presents a good reason, not merely for indemnifying the inventor or improver of an art, for his expense of time, labor and outlay, but also for giving him an absolute reward. It would be considered paltry to maintain that a general, who had achieved a victory, was sufficiently compensated by his pay, during the time he gave to the achievement. He is considered a benefactor to his country, and, as such, entitled not merely to his pay, but to a reward. So is the inventor of a useful art a benefactor to his country, and to the whole civilized world, and as such entitled to a reward. It is a debt due to him; not one that he can demand by virtue of the law of nature, and independently of all civil institutions, but one which it ought to be the early care of the positive laws to acknowledge and satisfy.
Without some encouragement and hope of indemnity for expenses, held out by the law, many inven
6 Westminster Review, No. 43, for January, 1835.