ON PATENTS AND THE NEW PATENT BILL.

A FEW years ago the current of public opinion was decidedly running against the law of patents. Distinguished judges like Sir Roundell Palmer and Sir William Grove, leading politicians, including Earl Granville and Lord Derby, and experienced engineers like Sir William Armstrong and Sir John Hawkshaw, considered the evils of the patent laws to be so great that they were past remedy. Lately, however, the current has set in an opposite direction, and there is now a general consensus of public opinion that it would be dangerous to national interests to abolish patents for invention, although we ought to reform the laws relating to them. So completely has public opinion changed on this subject, that the bill now before Parliament actually extends the period of a patent from fourteen to twenty-one years. Under these circumstances it may be useful to consider both the theoretical objections to patents, and also the reasons which render it expedient that the State should continue to grant monopolies for inventions. I think it requires little argument to reduce the question to expediency alone, although there are a few persons who still contend that an inventor has an inherent right in his invention, and ought to be protected by the law in the exercise of that right. There might be a fair contention that an idea, whether it lead to scientific discovery or invention, is peculiarly personal, for it is the only kind of personality that a man can carry with him to the grave unrevealed and useless to posterity. But if an idea, when it receives material embodiment, is property to be protected by law, the claim to its possession could scarcely be limited by short periods. I mean that if there be an abstract right to property in ideas, there must be an abstract wrong in saying that it is to endure for fourteen or twenty-one years, and no longer. That would be a weak compromise between the inventor's right and the public convenience. Nobody, however, pushes the claim of right to perpetuity, however logical that might be, because it would be intolerable to bestow a perpetual monopoly on any portion of human thought. There are even some classes of ideas resulting in important benefits to mankind for which patents are neither sought nor granted. In some countries, for example, medicines cannot be patented, because it is thought that inventions relating to human suffering should not be limited by

monopoly. English law does not make this exception, but public opinion, which often equals the force of law, operates in this direction. Thus Jenner would have been much condemned by public sentiment, had he patented the use of vaccine virus as a protection against small-pox; and Simpson would have been classed as an enemy instead of a benefactor to mankind, if he had restricted the use of chloroform in the alleviation of animal suffering by patenting its application. Yet both of these discoverers have done as much for the human race as any hundred patentees since the time when James the First excepted inventions from the statute against monopolies. In cases of this kind an overpowering public sentiment demands that such discoveries should be common property of the world.

The question of an inherent property in ideas becomes still more complicated when we try to separate the material embodiment of the idea as applied by a discoverer and an inventor. The discoverer of some law or principle of fruitful application is a far greater benefactor to the human race than the inventor, who makes a single application of it to an industrial use, and yet the law protects the latter, but gives no benefit to the former. It is true that every scientific discovery is simply an addition to the common stream of knowledge which has its sources far back in the history of the human race. This common stream, however, may be running through waste land, and adding little to its fertility. All that is wanted is that some one should cut channels so that the land may be irrigated and rendered productive. No one could grudge that the owner of the land, into which the channels are cut, should receive the fertilising waters of the common stream of discovery; but the patent law goes much beyond this. It says that no one higher up or lower down in the stream shall construct similar channels for a period of fourteen years. True it is that only the form of the channel is claimed, but it is extremely difficult to be satisfied that the channel is cut in a distinct and original fashion. To abandon metaphor, it is well known that no single discovery or invention is complete in itself, for it is always a development or natural growth of many preceding discoveries and inventions. Neither discovery nor invention possesses the faculty of Minerva to start full-grown and panoplied in armour from the brain of Jupiter. Their birth is from a germ, and their growth a consequence of accretive organisation in which all nature around plays its part. Even as regards the best recognised invention, it is extremely difficult to define who is the true and first inventor of any manufacturing operation contemplated in the original Patent Act of James the First. Inventions, when they do arise, are answers to demands already formulated by a public want. This want sets many minds in action in order to supply it, and the patentee has perhaps only the start of other inventors by a few hours, days, weeks, or months. The tree of knowledge has put forth abundant blossom,

and in due time produces fruit which in the ordinary course would ripen for common use; but one man detects the first apple which is ripe, and the patent law says that nobody else shall pluck apples from the tree without paying the man who pulled the first apple and proved its maturity.

The difficulty of admitting an abstract right to inventors in the property of an idea is that there can be no inherent right to monopoly for invention that is not equally a right for discoverers, whose discoveries are far more fruitful to mankind than inventions. Let us illustrate this by a case.

Some thirty years ago, I had the pleasure of making a tour in England and Scotland with some very agreeable travelling companions, among whom were Baron Liebig, Dean Buckland, and Professor Daubeny. Shortly before our tour, Buckland had proved that certain nodules found in both secondary and tertiary strata were really the fossil exuviæ of ancient reptiles, and he took us to see this fossil dung in situ. During our inspection of the coprolites, Liebig suggested that they might still preserve the valuable bone earth or phosphate of lime of ordinary dung, and if so he prophesied that the time would come when England would enrich her fields with the fossil dung of the old saurians. Subsequent analysis in my laboratory proved the correctness of this idea. Some time before this occurrence, Liebig had shown how bone earth might be made a soluble manure by mixing it with sulphuric acid. Of course it was a mere childish extension of the idea that the same thing would do for the bone earth in coprolites. The coprolites of commerce consist of two kinds, those which are really intestinal excretions from extinct animals, and others which seem to be mere mineral accretions without any immediate animal origin. The manure manufacturers patented the preparation of these by sulphuric acid, and held a monopoly for fourteen years. The application of the idea could scarcely be called the slightest advance on the knowledge given as common property to the world by Liebig, and yet agriculture was taxed for fourteen years by an abstraction from common right. The original discoverer, Baron Liebig, who had given to the world every idea which we yet possess on the subject, was left unrewarded, while the manufacturer who made a petty and obvious application of his conceptions is allowed to abstract a portion of the philosopher's discoveries from common right. The advocates of patent right would contend that the patent in this case was just, because a new material was brought into productive But the law is very uncertain in admitting this as a claim. There is a celebrated case in point. When madder is treated with sulphuric acid, it produces commercial garancin, a body of high tinctorial power. Some one found out that fresh madder was not the only material required for this purpose, but that the spent or exhausted madder of the dyeing baths might be converted into an

use.

inferior garancin by a like process. Here was a great economy. Spent madder was a waste product, which accumulated in great heaps in calico print works, and it was possible to convert these heaps into a commercial utility. But the same law, which upheld the application of sulphuric acid from modern bone earth to fossil bone earth, denied the application of sulphuric acid from fresh madder to waste madder, and the patent was abrogated. Generally, however, the law looks with favour upon any even the most obvious application of a scientific discovery, but leaves unregarded the discoverer, who has to content himself with a tardy public gratitude. This is strikingly the case when the application leads to large and momentous consequences. The fundamental scientific laws which laid the foundation of modern telegraphy were determined by a Danish philosopher Oersted, a Swiss philosopher De la Rive, and our English philosopher Faraday. After their discoveries, various men began to apply them to useful purposes, such as electrotype and telegraphy. The semaphore was then, weather permitting, waving its cumbrous arms and repeating its sluggish messages from station to station. The patents which now appeared in quick succession to apply electricity to telegraphy have been among the most legitimate illustrations of the uses and purposes of patents, and yet how small has been their benefit to mankind compared with the original discoveries of the illustrious philosophers which led to them! The applications are indeed important, but they are an offshoot from the discoveries, and are confined to a single purpose, while the latter are universal and endure for all time; and yet the law recognises only the inventors, but apportions no part of the benefits to the discoverers. It cannot then be contended that there is an inherent right of property in an idea when it is transformed into material embodiment by an industrial application, unless the admission is extended to the discoverer of the law upon which it is based as well as to the inventor.

The ardent advocates of patent rights urge the existence of copyright among authors as an admission of property in ideas. There is no doubt a similarity in the claim, but there is an essential difference in its bearings on public interest. The adjunct of the word 'right' to the word 'copy' begs the question on the ground of principle, and might tempt us to show that expediency even in this case governs the law as much as in the case of patents. But there is an essential distinction in the working of copyright and patent law. I may take out of a book any principle or idea of an author and use it as much as I like for my own and neighbours' advantage. This I cannot do with the patented idea or principle of an inventor. If this difference did not exist, the monopoly of thought by copyright would be more intolerable than the abstraction of a portion of knowledge from the common fund by patent. Let me take an instance in point. Pascal was a voluminous writer over a broad region of human thought, and possessed copyright

of his works, though that fact did not prevent mankind from henefiting by his ideas when they were applicable to any particular subject under discussion. His keen and merciless attacks on the Jesuits were much used even in our Parliament, when we had to combat with despotism and concealed papal aggression. In fact, the more that Pascal's ideas were used for such purposes, the greater must have been the satisfaction of the author. Now Pascal invented as well as wrote, and is said to be the inventor of our modern form of the ordinary wheelbarrow. I do not know that he ever patented it, but let us assume for the sake of argument that he did. All parts of the wheelbarrow-the box, handles, feet, and wheel-were old, but the combination was new and therefore patentable as being a novel utility. But Pascal's wheelbarrow and Pascal's books were in a totally different position as regards the public. From his book any one could freely extract and diffuse his ideas for public use, but the wheelbarrow could not be used on a single occasion or for the most trivial purpose without the payment of a royalty. The book and the wheelbarrow are undoubted property because the law has made them so, but the public have a much freer use of the one than of the other. The difference between the copyright and the patent is that between two estates, where the owner of one throws his park freely open for public use, while the owner of the other charges a shilling every time that you enter his grounds.

The basis of the present law is the assumption of the ancient right of the sovereign to grant monopolies. It is true that the democratic power developed in courts of law has somewhat altered this original conception of the grant, but at the same time it has knocked away some of the ancient safeguards against abuse. Originally patents were only to be given if they be not contrary to the law, nor mischievous to the State, by raising prices of commodities at home, or hurt of trade, or generally inconvenient.' All these conditions a king might make when he granted a monopoly out of his own good will and pleasure; but when the courts of law had to interpret these conditions, they gradually began to consider the patent as a right and not as a privilege. From the restrictions in the original Act (21 Jac. I. c. iii.) it is clear the State thought that patents could be worked so as to cheapen and not raise the price of commodities, and I am inclined to think that this is the chief justification of a patent law even now. It is quite true that patents act as a tax upon manufactures, but the incidence of this tax is peculiar in the mode of levying and in the effects produced by it. The tax when rightly applied does not act in raising the price of a commodity as an ordinary protective tax does. Thus a duty upon corn necessarily raises the price of corn. But a small tax upon an invention for a declaration of its methods may actually cheapen the commodity to the public, inasmuch as the patent tells all the difficulties which have