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ON THE LAW OF PATENTS.
BY JUNIUS REDIVIVUS.
bookseller has it in his power to pirate it in the shape of an abridgment, or by reproducing it in another form.
But in the case of originators in chemical or mechanical invention—that wide sphere of art on which our physical well-being prin. cipally depends-it is not even pretended that the protection of the originator is the object aimed at by the State or by the representative of the State, his Majesty--the only object aimed at is the collection of a heavy tax. His Majesty and his officers, in fact, simply say, “ You, the inventor, shall not have any protection except on the condition that you share your gains with us,” paying us our share in advance, and taking all the risks of success yourself. To a rich capitalist this may be of little importance, nay, it may be an advantage to a certain extent, by opening to bim a field of monopoly in invention-but to the poor man it presents almost insurmountable difficulties; and it must be remembered, that it is amongst the class of working mechanics that the originators of the most important inventions are found. The school of practice presents continual circumstances which excite mental activity. It will not be uninstructive to trace the succes. sive difficulties which an inventor destitute of pecuniary means has to encounter.
We will suppose the inventor to be a working mechanic, who has sedulously attended the lectures of an Institution, and read all the books within his reach. An idea sud. denly strikes him of the practicability of effecting some mechanical improvement. He convinces himself by a drawing that his idea is correct, and proceeds, during hours stolen from his meals and sleep, to construct a model, if perchance bis pecuniary means will enable him to purchase the needful materials. The model is successful, and he proceeds with it to a patent agent, who praises it highly, and recommends a patent to be instantly taken, but slackens rapidly in his praise as soon as he finds that the inventor is destitute of cash. The poor mechanic asks what the expense will be, and he is told that to secure .a patent for England alone, the fees will amount to the following sum :
£ s. d.
7 13 6
Secretary of State for Sign
4 2 0
for Private Seal.............. 50 17
In addition to this, the solicitor's bill will amount to some 201., and the drawings and specification to some 201. or 301. more, altogether making up a sum of from 1501, to 1601.* If it be wished to take a patent for England, Scotland, and Ireland, the exper.se will amount to about 3001., and this exclusive of any preparation for working the patent in the way of trade.
The poor inventor turns sorrowfully away, and, perhaps, returns to ask what course he shall pursue. He is advised to ally himself with some capitalist. But a capitalist must see the invention before he can join in it, and the inventor shows it to half a dozen capitalists in succession-all men of the strictest honour and integrity-but who all decline having anything to do with it. Disconcerted with his ill success, and with his pockets emptied, the inventor again applies to the mechanical trade, which he had long neglected, and repines at his hard fate. A few months, or a year or two elapse, and the poor fellow finds that his invention has got into common use. He makes inquiries, and finds that Mr. a highly respectable man-has obtained a patent for it. He calls on him, and tells hien that he was the origi. nal inventor, and Mr. laughs at him, and bids him bring his action for damages, A man without a shilling is to go to law with a rich capitalist!!! The poor inventor may perbaps contrive to get a friendly opinion, which is of little avail. The patentee has sworn that he is the original inventor, and as he has actually brought the invention into use first, the law protects him in the use of it, and at most permits the real inventor, after very strong evidence, to use his inrention himself, without the right to sell it. And thus the poor man beholds another accumulating riches from the fruits of his labours, while he himself is condemned to poverty. And this is unavoidable, as the law at present stands. The first applicant for a patent is the first served, and as the condition on which a patent is granted is the previous secrecy of an invention, it is not possible to convict a patentee of piracy if he possesses only ordinary intellect to cover his dishonesty. But if the first applicant were not protected, every valuable patent would be claimed by crowds of dishonest people, as their original invention.
Time has passed away, and our poor mechanic has accomplished a second invention. He has endeavoured to be very secret with it, but the size of the model and the incon. venience of the lodging wherein he has prepared it, have made known to many of his associates and various projectors, that he has a scheme in hand. He is as cautious as pos
15 16 0
7 13 6
The proper charges are not so bigh as here stated, by at least 301. As it is, however, they are enormously oppressive.-ED. M. M,
5 13 4
108 1 10
ON TUE LAW OF PATENTS.
BY JUNIUS REDIVIVUS.
sible; but still something lurks out. Reputation has attached to him from the success of his former invention, which is known to bə his, though another lies benefitted by it. He finds a capitalist with comparatively little difficulty, and applies for a patent. In the simpleness of his beart he chooses a title which correctly designates his invention; his patent passes the Great Seal, and he considers his fortune to be made, and the necessity for further secrecy done away.
At the end of six months he enrols his specification, and with his partner in the patent proceeds to carry on business. Scarcely has he com. menced, when he receives a notice from the solicitor of Mr. that an injunction for piracy will be moved against him in the Court of Chancery, unless he ceases from his proceedings. He then learns for the first time, that previous to his application a patent had been taken out, the title of which was couched in such general terms, that while not supposed to relate to the same thing, it was in reality nothing else, and the specification had been made out from information gained through the treachery of one of the workmen employed by the poor inventor. He has again been ruined, and the capitalist who has sustained a loss through bis means overwhelms him with reproaches. The only advantage the inventor has reaped is the kuowledge that the safe mode of making a title for a patent is to leave it so vague that it may mean any thing, and so definite that it may cover the object aimed at. Exquisite employment for the warped mind of a lawyer!!!
The fame of our inventor has increased, but his pockets are low, and he is reduced to work at his trade as before, but after all his ill success, the consciousness of merit, and a mind too ardent for meanness or avarice, bears him up.
He feels that all he has done is not lost to the world, and it enables him to sustain his disappointment. Time rolls on, and accumulations from his earnings place him a situation of comparative ease, when his mind again emerges“ beyond the ignorant present.” His conceptions take a wide range, and his imagination fiashes upon higher objects. It takes a tangible form, and a machine is devised which will supersede the labour of many men. Slowly and wearily he moulds his crude ideas into shape, and drawing after drawing is made till a result appears in a working model. His heart laughs while he contemplates it; he feels that he has raised himself to affluence, to merited leisure. After long search, he meets with a partner who will advance the needful funds, and take a share of the invention as a patent. He applies for his patent, and gets notice that a caveat has been lodged, occupying the very ground he was about to take. The right to a patent under such a title as he
has chosen, is, in short, disputed, and he has to contest the matter with an opponent. The Attorney-General is referred to, to examine the different inventions, and be, after comparing the plans, pronounces his decision, that they are so entirely different, that both parties are at liberty to proceed, as they will not interfere with cach other. Satisfied with this, our inventor's mind is at ease, and he proceeds leisurely with his patent. His fees are all paid, and he belieres that at last he has accomplished, as well as deserved snccess. But he is again doomed to disappointment. His opponent has sealed his patent a day before him, and is first entitled to specify, which he does on the last day of the six months. Horror-stricken, our inventor discovers that his opponent has specified the same invention that he himself had prepared. He cannot understand this, as the AttorneyGeneral had declared the two inventions to difter. He asks legal advice in the difficulty, preparing by evidence to support the fact of his own plans existing, and the fact of the Attorney-General declaring those of his opponent to differ; but he is cut short with the information that no records are kept of the Attorney-General's decisions, and therefore they cannot be brought forward. He has no remedy--he is once more deprived of the benefit of his own exertions by nefarious practices, owing to the inefficiency of the law.
Years have elapsed, and our well-deserving, but ill-rewarded inventor has passed the middle age of life to tread the down-bill path, still a working man, sobered but not desponding. He has learned experience, but he has not lost hope. All that he has planned has produced the results he expected, though for the benefit of others. His predictions have all been verified by experience. He has another and a last plan in agitation, which he fondly hopes will compensate him for all past disappointments, and he has the consolation that it is more important than all which have gone before it. Warned by former difficulties his caution is great, and he carefully weighs the repute of the persons to whom he applies himself. His invention consists in improved machinery for cottonworking, and one of the largest capitalists in the trade joins him. On applying for the patent he finds a caveat entered before him. With considerable difficulty he finds out the individual who has entered the caveat, and he feels sure that he knows nothing wbatever of machinery. But no matter, he is the first in the market, and our inventor is baf. Aed. But from this difficulty he is at once rescued by his partner the capitalist, who pays the caveat-bolder from one to two hundred pounds, to forego his claim. At length all is completed, and the hopes of the inventor seem accomplished beyond the reach 454
ON THE LAW OF PATENTS,
BY JUNIUS REDIVIVUS.
of destiny. All fees are paid, and the patent is signed, sealed, and delivered. To work it is now the object, but his partner, for some reason or other, causes delays from time to time, Our inventor cannot understand it, but at length the truth bursts on him. This partner is the owner of machinery in which large capital lias been just embarked, and he has taken a share in the patent as the readiest mode of quashing it, as its introduction would have destroyed the value of the machinery he already possessed. Our inventor is ruined, and his only remedy for this grievous wrong is to file a bill in Chancery, i.e. a man without a shilling is to enter into a legal contest with a rich man, which contest is in itself interminable, unless by the agreement of both parties. It is a mere mockery of justice, and the man who has committed this grievous wrong laughs with impunity at him who has sustained it.
Hope deferred, it is said, maketh the heart sick, The mind of an inventor is usually of a sanguine turn, but repeated failures from causes beyond individual control, have a tendency utterly to destroy hope. In the down, ward path of life, the elasticity of the spirit declines, and our inventor no longer struggles with his destiny, or at least with the doom, which, pronounced by unjust laws, seems to him destiny. Thenceforward, he seeks to gain a mere living by the labour of his hands, an dno more. The struggle for leisure he leaves to the younger and more fortunate.
Seven more years have elapsed, and the patient quiet of our inventor is again disturbed. His partner in the patent has found that with his existing machinery, he cannot compete in the market, and he wishes to bring the patent into use. He proposes terms of partnership, hard enough to the inventor, and the inventor refuses them. A better offer is made, and with fear and anxiety-knowing he has to deal with a rascal-our inventor at last becomes a manufacturer. He is at last what he should always have been, a director of other men, laeking only a skilful leader to make them efficient. The processes of manufacture absorb the whole of his atten, tion, he receives a stipulated monthly sum for his subsistence, and forgets that in a ma. nufactory business, there is a department of accounts as well as of the conversion of ma. terials. To the accounts his partner attends, and after several years have elapsed, our inventor finds himself in difficulties and dis. putes. His partner has devised a systematic plan for appropriating to himself a profitable business, and by harassing a simple-minded man he is at last successful. Our inventor retires from disputes and further anxiety with an income barely sufficient to save him from the necessity of manual labour,
It is often charged against inventors that
they are mere schemers, that they project plans whose details they are incompetent to fill up. This charge is frequently true, but it can be no excuse for placing the deserving inventor on the same footing with the mere schemer. The steam-engine of Watt is an universal benefit to society, though the steam-gun of Perkins is useless; and the railroad between Liverpool and Manchester will not cease to be valuable, though that between London and Southampton should prove a waste of money. The truth is, that inventors abound in imagination, and where they happen to be without the restraint of judgment, they commit blunders; but what then? Is it better that blunders should be occasionally committed, or that the world should stagnate? The answer must be found in the principle of utility,
It will not be questioned that invention is a good, and therefore it would be a wise thing on the part of the nation to foster invention in such a mode as to produce the greatest amount, This mode is by making it the in. terest of the inventor to prosecute useful diş coveries, by protecting his interests in every way which may not trench on the rights of the public; by removing every obstacle to his progress, and preventing the necessity of his wasting his time on matters foreign to the bent of his genius, for there can be no doubt that all time so wasted is a loss to the in. ventor individually, and to the public gene, rally. But, while we carefully protect the interest of the inventor, we must take especial care that knaves, assuming the garb of inyentors, may not acquire patent monopolies for productions of art which are not original; and this point brings us to the classification of inventions.
Inventions generally may be at the outset divided into two classes-first, new machines for the supersession of human labour in branches of art or manufacture already known; and, secondly, for new commodities or adaptations of new materials, to produce articles of human convenience not before known. But as the faculty of imagination is not commonly united to perseverance in details, it frequently happens that patents are secured for inventions, which the inventors fail to bring into common use. And thus the public is virtually deprived, in many cases, of articles of exceeding utility, for no one will bestir himself to render perfect an in. vention, from which he cannot hope to reap & remuneration. The inventor has stumbled on an idea, with which he has proceeded sufficiently far to secure him a monopoly, but has, in truth, left by far the most difticult part of the process unaccomplished. The French have wisely regarded this difficulty, and therefore their Patent Law permits a man not only to secure a patent for PY JUNIUS REDIVIVUS.
ON THE LAW OF PATENTS.
an original invention, but also for perfecting the invention of another. The perfecting process is really an original process, as well as that of producing the first idea. In a humor. ous anecdote, a Frenchman is described as laying claim to the invention of a shirt-frill, and he Englishman, who overheard him, made his claim to perfectionating the invention, by adding the shirt itself !
Inventions for labour-saving machines are, of course, the most profitable to the inventors, because consumers are always willing to purchase known commodities, more especially when they can be furnished at a reduced price. But he who invents a new com. modity, has to struggle with the difficulty of creating a new market. The public are, as a body and perhaps not unwisely, in the absence of evidence whereon to judge-sus. picious as to the qualities of new and untried articles. They have only the bare word of the iaventor as a voucher, and they may very reasonably mistrust it, while quoting the proverb, “No man proclaims that he sells stale fish." It is by slow process and unwearied attention that a new article is brought into extensive use; and thus only, in the absence of a duly trained judgment is the public enabled to guard itself against being gulled.
Therefore, under the existing Patent Laws, the profession of an inventor of labour-saving machines may be a valuable pursuit, if he can avoid being cheated; but the profession of an inventor of new commodities is utterly worthless in a pecuniary point of view—I allude to inventors who invent for the purpose of selling their inventions, and not of working them. The mode in which newlyinvented commodities mostly benefit the inventors is by their embarking in business as manufacturers. In this mode a new business may be established by the publicity afforded, or an old-established business which is fall. ing off may receive an additional impulse. Upon this principle it is that persons engaged in business oceasionally take patents, considering that if the patent itself produces no orders, those who may be attracted by curiosity may become customers for other articles. Jt is, in short, a complicated mode of adverLising, and the pubļic is exceeding apt.to believe that a man who has taken out a patent, though for a worthless invention, must pogsess more than ordinary abilities in the common run of business, i.e. there is a vague idea prevalent, that no man would presume to patent an improvement in any branch of art until he had at least hecome thoroughly cognisant of all the ordinary processes. For this reason it is common for inventors who have patented new machines thenceforth to dub themselves Civil Engineers, as though the fact of having become acquainted with a
particular branch of art had made them com. petent to all branches; as though the inven. tion of a new pump could give a man an instinctive perception how to erect å steam. engine.
It is the interest of the inventors of new commodities to make their inventions as public as possible, but the contrary is the case with the inventors of labour-saving machines. They are interested in keeping their inven: tions as close as possible. The law imperatively requires of them that they shall make their invention patent, i. e. that they shall deposit a written specification and descriptive drawings in a public record-office; and this they endeavour to comply with in such a mode that they may overwhelm the under. standings of those who strive to comprehend them under a mass of useless verbiage, whose type is to be found in law documents, and under a profusion of drawings, which, in their multiplicity of details, obscure the vision, and divest the attention from the im portant features. And when the invention is thus patented, it is used as much as possible in private. No desire of fame prevails over the receipt of wealth. In silence, and as much as possible in secrecy, the invention is worked ; and thus it is that large fortunes are accumulated in manufacturing towns, with a rapidity astonishing to those who are not in the secret. Instances might be ad. duced of factories where scores of machines are used, each earning from 50 to 801. per week, and going on for years without being encroached on. And this is not difficult to explain. The records and specifications are kept in London; and whoso may wish to examine them must make a journey to London for the purpose, or he must pay heavily for copies of the specification and drawings. And this few people are willing to do, unless in especial cases. The records of patents áre, in truth, sealed books, except to a few individuals. If a poor man wishes to exa amibe a specification, even to guard himself from infringing it, he cannot find out which of the three offices it is inrolled in but by paying a fee at each in turn, and it is a chance if he takes the right one first. And when it is shown him, he is not permitted to make any extracts. He must trust to his memory alone, unless he can pay for an office-copy, and this is rarely within the means of a poor man. The object of the specification is not merely to verify the claim of the inventor. The word patent indicates that it is meant also to be a reference for the public, who may use the invention after the patent right has expired. This last condition is not complied with. In new commodities the public are sufficiently instructed by their perfect publicity; but it is not uncommon
ON THE LAW OF P.ITENTS.
BY JUXIUS REDIVIVUS.
for processes secured by patent right to be maintained by many long after the patent right has expired. In truth, in some cases that patent merely serves as an advertisement, and the specification is purposely falsely made.
If all persons exercising the functions of government were just, intelligent, and, above all, responsible-if, in short, the possibility of undue influence could be abolished, the most desirable mode of recompensing inventors would be by premiums paid by the state; or if that be objected to, as making the whole nation pay for commodities used only by a part-then the premiums should be collected in the form of a tax, levied on those manufacturing or dealing in the new commodity, or using the labour-saving machine. The advantage in this would be, that the manufacture instead of being confined for the space of fourteen years to the means of a single individual, or a small partnership, would become extended through the community more rapidly. It may be objected to this, that an inventor, being interested in the success of his invention, is more likely to bring it to perfection by his own concentrated efforts, than will be the case, when manufacturers generally work it on the prin. ciple of competition. There would be more force in this objection if it were proved to be the case that inventors were commonly perfectors also of their inventions ; but such not being the fact, the objection is of little moment. The truth is, that inventors and perfectors would have a far greater stimulus to exertion when sure of compensation without the necessity of becoming either mercbants or manufacturers. They would labour in the vocation for which they are fitted, without the feelings of anxiety, lest they should be driven into vocations for which they are entirely unfitted. The inventions which should be entitled to the premiums might be determined by the extent of their utility, in the broadest sense of the word; as for example, by the number of hands, or the amount of capital they might give employment to. And the proportion of premium which each particular invention should claim, ought to be determined by the extent. The inventor of an improved steam-paddle, for example, ought to receive a far higher per centage than the inventor of an improved railway.carriage; because the steam-paddles are few and the railway-carriages many, yet, on the etficiency of the steam-paddles many human lives may depend, while the railwaycarriages may merely be a question of pecuniary saving. To regulate these various compensations would be the employment of properly appointed responsible officers.
But as we are not likely for a very long
period to possess a government sufficiently responsible to be entrusted with a task, in which very high intellect and a rigid sense of justice is requisite, we must consider what is the best mode of securing to inventors a monopoly of the results of their skill by the process of patent right.
It is clear that originality alone can be the just plea for such a claim-i... the invention must be something not previously known. To ensure this the first condition must be, that the inventor has not in any way pub. lished his invention, for the recognition of any claim, after such an act, would throw open a door to a large amount of chicanery. But as there are some inventions which are not capable of being verified in drawing or model, they must be actually constructed of full size, and proved. To do this, in the case of large machines, such for example as locomotive vebicles, is impracticable with secrecy. The patent must be secured before the experiments are tried. At present this costs upwards of a hundred pounds, which money is not returned if the experiment prove a failure. The proper plan would be for the inventor to deposit a design or model, sealed up, in a record office, where the date would be attached to it, and a certificate given. And tbe only fees chargeable for tbis should be of such amount as to just cover the office expenses. After this the inventor would se. curely proceed with his experiments for a given time, regulated according to the title of his invention and the magnitude of the work. If his experiments remained incom. plete at the expiration of the term, he should then be at liberty to make a new deposit of his plans, with a fresh date, the old one becoming invalid, as against other claimants. The experiments being complete and satisfactory, the inventor should then be allowed to take a patent perfectly simple in its form, and needing no signature from“ His Majesty," or the Lord Chancellor, or the Attorney and Solicitor-General, or Secretary of State, clogged with the condition of finding certain of these personages in conjunction at the time of signature. The proper person to sign the patent would be the registering officer, who should always be visible during proper business hours. For the patent thus completed no fees should be charged in the form of a tax. But, previous to the signaLure, an examination should take place, to ascertain whether the specification and draw. ings—which should be deposited at the time of signing and sealing-corresponded in all essential particulars with the drawings or models originally deposited ; if not, the patent should be refused. If granted, the fees charged should be only of such amount as to cover the office expenses.