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end of their term, to possess the new manufacture in a profitable form ; whereas, by refusing patents, or with holding from them adequate protection, it will either not possess the inventions, or, if it do possess them, it will be in the form of unapplied and barren suggestions. Give the husbandman security that he may sit “under his own vine, and his own fig tree,' and the magic of that security will raise the vine and the fig tree, where else would be the barren wilderness. Watt, it has been said, spent six whole years in bringing his invention into a good working state. The late Lord Norton, of Leith, the inventor of the patent slip, as a substitute for dry docks, lost the same time, before his patent became profitable to him, although he brought the invention early into use. A like loss of time prior to the invention becoming productive, appears from inquiry, to be an almost constant occurrence in important inventions. Here is the authority of Mr. Farey, in the report” of the committee of the House of Commons, on the subject of patents, in May, 1833, “ for saying, that the expense of making the first steam engine on the plan of Watt, was such as no maker could have been remunerated for, by any subsequent outfit he could make, without the aid of what occurred from the patent, or some other extraneous source. And indeed, but for the security which Watt erroneously conceived the patent law to afford, there is little doubt that the invention might at this day have been sneeringly re
corded by some author, styling himself practical, as a suggestion exceedingly ingenious in theory, but altogether useless in practice.
The principles and motives of patent laws, then, are, 1, the securing to the inventor the remuneration of his outlay ; 2, a reward for his ingenuity, and the benefit he confers on the community ; and 3, to encourage and stimulate invention and improvements.
The invention of lithographic printing by Senefelder has been instanced in illustration of the labors and difficulties of an invention, and the influence of motives in stimulating the inventive faculties. He was the son of an actor, and had himself written a play, which, however, he was too poor to get printed. To overcome this obstacle he conceived the bold idea of inventing a cheaper mode of printing than with types.
" Nor was the success less wonderful than the attempt. Not by any chance, not by
Westminster Review, No. 43. January, 1835. p. 94. Foster's Am. Edition.
8 Per Story J. Lowell v. Lewis, Mason R. 182. See Holt's N. P. C. 58. n. Though monopolies, in the eye of the law, are odious, says Lord C. J. Eyre, in the case of Boulton v. Bull, 2 H. B. 500, the consideration of the privilege created by this patent is meritorious, because, to use the words of Lord Coke, the inventor bringeth to and for the commonwealth a new manufacture by his invention, costs and charges. But Lord Kenyon says, “I confess I am not one of those who greatly favor patents ; for though in many instances, and particularly in this, the public are benefited by them, yet on striking the balance upon this subject, I think that great oppression is practised on inferior mechanics by those who are more opulent.” 8 T. R. 98. This is quite an extrajudicial reason.
a first lucky hit, but by contrivance, by experiment, by perseverance amid disappointment, and by knowledge extended from failures, he succeeded in accomplishing this daring effort of his genius, and discovering an art which, if it cannot vie with other ways of printing for extensive utility, will yet, for inventive merit, and with reference to the hopelessness of the rude but simple materials whereby it is worked, ever be ranked among the most wonderful of human inventions."
The grounds and motives of this species of legislation being, then, in the first place, to indemnify inventors, in the second to secure to the public the benefit of invention, and stimulate ingenious minds to make improvements, and, in the third place, to reward the inventors as public benefactors, according to the importance of their inventions, it follows that the earlier or later disclosure of the secret, and the investing of the public with the benefits of the discovery, are essential conditions of the grant of protection and reward. It is, as M. Renouard says, an exchange between the two parties, the inventor on one side, who grants the community a new art or machine, and the community on the other, which grants in return to the inventor, indemnity and compensation. But as the publicity of the invention is a matter of public
Westminster Review, No. 43, for January 1835.
interest more especially, it may be dispensed with by an act of special legislation, a right to which is reserved by the government, to be used, when, from fear of benefiting a public enemy or a foreign competitor in the market, the advantages are supposed to be on the side of secrecy;10 though this latter ground is now mostly abandoned, and the former is, at the most, but occasional and temporary.
Different kinds of Encouragement to the Arts.
The inventor, then, having a just claim to remuneration and reward, we come next to the question what kinds of remuneration and reward are practicable and suitable. And in this respect the community is not necessarily restricted to the granting to the inventor a preference in the enjoyment of the advantages of the use of his invention. Rewards in
money have in many instances been promised before hand, or awarded subsequently, for discoveries. The divine honors, paid by the Greeks and other ancient nations to those who were public benefactors by their useful discoveries, originated in the principle upon which modern patent laws are founded, though the kind of reward bestowed in the two cases is different. In some instances the inventor cannot be rewarded directly out of the fruits of his invention. This is the case with many discoveries in science. Were any philosopher to discover a certain and easy method of squaring the circle, he could not be rewarded by a grant of a monopoly of the advantage, if it consisted in mere calculation. The British government offered a reward for an improvement in the mode of ascertaining the longitude. Public grants have been made to Mr. Babbage in consideration of the utility of his calculating machine. Many other instances might be enumerated in which a monopoly of the invention was not considered a practicable or a suitable or an adequate compensation to the inventor. The French government, accordingly, by a law of 1791,' provided for the annual distribution of 300,000 livres to artists for labors and discoveries in the useful arts, no part of which is to be given for improvements for which patents are taken out. But this species of reward is liable to much abuse by imposition on the officers of the government to whom the decision on claims is committed, and also by partiality and favor
10 Renouard, c. 7. s. 2. p. 276. Ed. of 1825.