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law, but regulated by the will of a greedy tradesman, who, having bought his right to be extortionate, was in haste to repay himself, and to get rich into the bargain.
It would be needless to dwell on the injustice and impolicy of such a mode of taxation; it is sufficient to say that this intolerable evil was at length remedied in the reign of James I., by the celebrated statute abolishing the system. But even at that period, when men's minds were exasperated by their recent grievances, the prudence, the necessity of granting exclusive patents for inventions was never denied. It was conceded that,
man devised any new manufacture, it would be taking nothing from the public if they were prohibited for fourteen years from appropriating the discovery. Accordingly by the statute of the 21st of James, power was reserved to the Sovereign to grant royal letters patent, assuring to the inventor the exclusive right over his invention for that limited period, at the expiration of which it became common property. Yet so jealously were all existing rights guarded, that a proviso bas always been inserted, making the grant altogether void if it should be proved that any one had publicly used or described the invention before. Even, therefore, after a man had expended his time, his energies, and his substance in perfecting his contrivance, and had obtained a patent to protect, it, his possession was not secure. Popular "fame has assigned to Richard Arkwright the merit of inventing his celebrated machinery for preparing cotton for spinning. It is not generally known that his patent was set aside because it was proved that the device was not new-and among the reasons which were held to render his claim void, one was that a description of the jenny was contained in a work of Emerson before the date of the grant.* Such is the law, and such it has been since the days of King James; and it is therefore impossible to contend that patents encroach on existing rights, when the moment this is demonstrated they die a natural death.
So far are patents from having a restrictive effect, that they either furnish the world with a new agency, or afford it the means of using an old one more economically. As the invention must be useful, or a valid patent cannot be granted, and as it must be something of which the public are ignorant, it follows that a novel and valuable addition has been made to the existing stock. Meanwhile every one is free to choose between the old method and the new; and assuredly, if the latter is not offered on such terms as make it worth while to adopt it, there will be no
* See the summing up of Mr. Justice Buller-Davis's Patent Cases, p. 129.
purchasers, when the evil immediately works its own cure. The interests of the patentee will compel him to adapt his price to his market. Checked by the competition of the former system, which up to his time served the purpose of the consumer, he must either offer a cheaper article, or, what is the same in effect, an article so superior that it can be more economically employed. If, however, he should be blind to his own interests, the public may perhaps suffer to a certain extent; but they are only kept out of what they never enjoyed, and the inventor after all cannot play the dog in the manger for a longer period than his fourteen years. Meanwhile, rivals would be stimulated to exertion in the direction pointed out by his contrivance, and would perhaps eclipse it. The persons interested in the subject have at least got a hint where before they had nothing.
Having examined the objections made against patents on the ground of the obstructive character that may be imputed to them, we proceed to describe the mode in which these grants work, and the relative effects produced by them on the patentee and the public. No better illustration could perhaps be chosen than the most famous of all patents, that of James Watt for a new method of lessening the consumption of steam and fuel in fireengines.' This title distinctly states the object of Watt's invention, and points at its real merit, about which great misapprehension exists, for Watt is often called the inventor of the steam-engine, though steam-engines were used long before his time. When his contrivance was completed, being perfectly satisfied in his own mind of its value, he went to London in August, 1768, to make arrangements for taking out a patent for it.' He may be supposed to have begun by making inquiries about the prior patents which had been granted to other improvers of fire-engines. He doubtless knew well all that Savery and Newcomen had done; but he might think it necessary to ascertain if Denis Papin had gone further than people usually thought. He might feel desirous of looking at the specifications describing the fire-engines patented by James Brindley in 1758, by Henry Woodin in 1759, and the fire-engine and boiler patented by Joseph Hately on March 8, 1768-the specification of which was probably enrolled only a few days before Watt's arrival in London. Patents are granted on condition that the patentee shall, within six months of the date of the grant, file a specification which exactly describes his invention. These specifications are written on skins of parchment, stitched together so as to form a long scroll, which is kept rolled up. Many specifications may be contained in the same roll, and it was a matter sometimes of great difficulty to consult them, as a given specification might be at
the beginning, or in the middle, or at the end of the roll. Watt would have found that the specifications of patents were kept in three different offices: 1. The Rolls Chapel ; 2. The Petty Bag; 3. The Enrolment Office. He must have searched all three to be sure that he overlooked nothing of importance. To each office he probably repaired in turn; and day after day (for searches at that time were long affairs, and there were no indexes to assist them) he would first pay his fee and then patiently wait while the clerk handed him down one by one the big rolls from the dusty shelves. Perhaps after unrolling their long columns of quaint characters he found nothing, because there was nothing to find, and he must have wondered that none of the well-paid officials were employed to make catalogues to save the waste of precious time. Money had equally to be squandered in the investigation. Copies and even notes were forbidden to be taken without an extra payment, and the evidence given before the Select Committee of the House of Lords in 1851 showed that a search sometimes required the services of several persons for weeks, at a cost of hundreds of pounds. The next step was to make application for a patent.
This was a process which passed through no less than nine stages and seven distinct offices, situated in different places. Indeed, the object of sending the application through one of these offices was openly stated, in the statute of 27 Hen. VIII., c. 11, to be that the clerks should not by any manner of means be defeated of any part or portion of their fees.
If the letters patent were required to extend to Scotland and Ireland, as well as to England, all the proceedings had to be gone through separately in each of the three cases. Thus the same patent may be said to have run the gauntlet of twenty-one offices. So heavy were the fees, that the cost of a patent for the United Kingdom could not be estimated at less than 3501., while the attendant expenses of preparing the specification, &c., often doubled the amount. Under the new arrangements a patent may be obtained by application at a single office, and the fees amount only to 251.
The patent obtained, we have now to follow it into the world. Watt invented his engine with the object of effecting a great saving in the employment of steam-power. And what were the terms he offered to the users of his inventions? A guarantee that the cost of the engine should not be greater than the old one, and that the users should save, at least, half the expenditure of fuel which was before required to do the same work.
This was coupled with a proposal, that, if more than half the fuel should be saved, a sum should be paid proportional to the gain. Could any stretch of imagination call a right
like this a tax on the public, when the inventor said, 'I save you half your expenses free of charge; if I save you more, let share in that surplus benefit'? But though Watt and his partner offered these generous terms, it was long before they could tempt the public to accept the boon, and it was only by means of their constant aid that those who employed their engines struggled through the difficulties which ever attend the introduction of a new invention. When these were at length overcome, and the results surpassed all expectation, the troubles of the patentees were far from ended. Their energies and purses were taxed to defeat attempts made to cheat them of their share of the savings effected. The invention was pirated, and the bill of costs incurred in the short space of four years amounted to between five and six thousand pounds!
The more recent patent of the late Mr. Muntz for his yellow metal sheathing for ships is another case in point. It was found by Sir H. Davy that the oxidation and wear of copper sheathing might be stopped by establishing an electric action between certain metals. This was one of those splendid inventions which fail unexpectedly in practice. It was found that when the corrosion of the metal was prevented, the accumulation of seaweed and barnacles increased to such a degree that it more than neutralised the benefit of Davy's discovery. Mr. Muntz turned his attention to the subject, and alloyed copper and zinc, with a slightly larger proportion of the latter than when they are combined for making common brass. This compound was found to oxidise sufficiently to keep off incrustations from the ship's bottom, without undergoing needless waste like copper. It was also much cheaper. In sheathing a ship which required about 84 cwt. of metal, the saving in price was very great, while the durability was increased about 20 per cent. This would seem to have been a captivating invention, and yet it was proved, in a trial where the patent was in litigation, that merchants and shipowners were prejudiced against it as an absurd novelty.' * Mr. Muntz was obliged to force his process on shipowners, first by soliciting permission to sheathe their ships for nothing, then by sheathing them below cost price, and guaranteeing them for three Indian voyages, while copper-sheathed ships could only be guaranteed for two. When at length the patentee began to find users for his invention, he found like Watt infringers as well ; suits in Chancery and trials at law followed fast and furious. The Law Reports show that seven bills were filed in Chancery, six actions were brought at common law, and, to crown all, proceedings by scire facias were taken to
* Webster's Patent Cases, vol. ii. Muntz's Case.
annul the patent. Mr. Muntz eventually succeeded in maintaining his rights, but his law costs amounted to 84001.*
The cases of Watt and Muntz are fair illustrations of the ordinary course which an invention takes after it is introduced to the public, and there are two evident deductions to be drawn from them. The first is, that invalid patents are so far from being allowed to subsist to the detriment of the community, that the evil is the other way. There are persons found to dispute discoveries to which the claim is unexceptionable, and who dishonestly endeavour to cheat the inventor of his hard-earned reward. Sometimes the infringers are so numerous and inaccessible, that they are able to defy him, and the patentee, unable to stem the torrent, surrenders his right without a struggle. This was the case with Sir David Brewster's invention of the kaleidoscope, which he stated was pirated by cartloads. "Millions,' he says, were sold in London. The men who infringed the patent were Jews generally. It would have been in vain to have gone into a court of law. Inventions which require no capital to execute are chiefly liable to be thus taken by storm.
The second point, which is shown both in the instance of the steam-engine and the metal for sheathing ships, is that, however great may be the benefit, the public will frequently pay no attention to inventions until they are forced upon them. Watt and Boulton could with difficulty get a trial for their engines, and if the ship-owners had been left to look after their own interests, they would have had nothing to say to Mr. Muntz's metal. The evidence of the experienced witnesses examined before the Committee on Patents in 1857 showed that as a general rule the community must be benefited by compulsion, and how is this to be done unless the inventor is allowed to have such an interest in his invention as will make it worth his while to push it? How otherwise is he to be recompensed for the troublesome task of teaching people to change their system and improve their art or manufacture? It seldom happens that a discovery is perfect at first; it must be adapted to particular circumstances, workmen must be taught how to use it, prejudices must be conciliated; and if the patentee did not do this, the discovery, though valuable in itself, would generally be neglected for a long time or altogether lost. Nay, if the inventor volunteers to be himself the instructor, he will commonly find no one to receive his lessons if he waits for the pupils to come to him instead of going and forcing his contrivance upon them. M. Arago mentions that M. Poncelet, an oracle in Mechanics, devised a new hydraulic machine. He did not take
* Webster's Patent Cases, vol. ii. p. 115.